ATA Litigation Center`s - American Trucking Associations

ATA Litigation Center’s
ATA Litigation Center’s Forum for Motor Carrier General Counsel
July 17-20, 2016, Bellevue, WA
OVERVIEW
The ATA Litigation Center’s annual Forum for Motor Carrier General Counsel is being held July 17-20 at the Hyatt Regency Bellevue. As the name implies, this
Forum is exclusively for motor carrier legal counsel (both internal and external), motor carrier executives and professionals who are involved in the companies’
legal matters, and the organizations that support the industry. Forum topics are specifically tailored to address the trucking industry’s most critical legal issues and
its presenters are experienced practitioners. 2015 was a busy year for the transportation sector - on the regulatory, legislative and judicial fronts – and 2016
threatens to be just as challenging. This Forum will provide counsel the opportunity to learn from the best, engage in peer-to-peer discussion, and earn CLE
Credits. Note: The Forum includes five sessions dedicated to the Symposium on Highway Accident Litigation Issues (see below) in addition to other critical legal
matters. Dress is business casual; average temperature 77° F (low of 57° F).
Symposium on Highway Accident Litigation - Issues
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Sleep Management on Trial
Inflated Damages – Life Care Plans and Medical Advances
Defenses in Light of CSA Proposed Rule and Scoring Alternatives
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Human Factors Expert Testimony
Accident Reconstruction & Harnessing
Resources in MC Defense
Registration Information
To register go to: http://www.trucking.org/Events.aspx. Scroll down and click on the Forum for Motor Carrier General Counsel icon. Once clicked, you will find an
online registration link and hard copy form. If you are registering online and have attended before and/or your company is a member of American Trucking
Associations, consider logging-in to save time and possibly money. Registration includes all sessions, materials, Forum meals (as indicated in the Schedule of
Events). Additional attendees from the same company will receive a $100 discount once one individual has paid the full registration fee. To ensure your name
appears on the list of attendees and all Forum and CLE materials are ready for you onsite, please register by June 17, 2016.
Cancellation Policy: Attendees may cancel their registration and obtain a refund (less a $100 administration fee), if notice is received in writing by the ATA
Litigation Center by 1:00 p.m. on June 3, 2016. After June 3, requests for refunds will be reviewed on a case-by-case basis and refunds will be made at the sole
discretion of the Center. Substitutions may be made at any time if in writing.
Hotel Accommodations - Hyatt Regency Bellevue
Hyatt Regency Bellevue on Seattle's Eastside
900 Bellevue Way NE
Bellevue, WA 98004-4272
Discounted Group Rate: $225.00 single/double + tax (currently 14.4%)*
Rate includes ccomplimentary Wi-Fi in sleeping rooms
Check-in: 4:00 p.m. * Check-out: 12 Noon
17 mi. from Seattle-Tacoma Int’l Airport (SEA)
Self-Parking: $25 and Valet Parking $31.96 + tax (currently 9.5%)
* All reservations must be made individually by June 17, 2016, through the hotel reservation link, which will be provided
in your Forum registration confirmation e-mail. A hotel confirmation e-mail will be sent to you directly from the hotel.
The hotel requires 24 hours’ notice prior to your arrival to cancel without penalty.
Golf Event – July 17 Coal Creek Course at The Golf Club at Newcastle
Designed by renowned architect Robert E. Cupp in consultation with Masters Champion Fred Couples, the Coal Creek course
combines characteristics of some of the game's legendary courses, providing an exceptional playing experience. Golfers are treated to
breathtaking scenery, well-conditioned greens and first-class amenities. This challenging layout features well bunkered landing areas,
rolling fairways, undulating green complexes and elevation changes, making proper club selection paramount. The course offers a
true test for players of all abilities. Stretching 7,024 yards from the back tees, it features five par 3's, eight par 4's and five par 5's.
The opening hole, at 621 yards, is captivating. Beyond the fairway creek are ever-changing city skylines. Register separately.
Things to Do
Surrounded by magnificent natural beauty and outdoor spaces, this one-of-a-kind place offers the ultimate in shopping, dining and
cultural attractions, all within easy strolling distance of the hotel. Vibrant, modern and growing, within minutes you can explore
Seattle's culture and history, visit Kirkland's waterfront parks and galleries, or tour Woodinville's Wine Country, home to 100+ tasting
rooms and some of the world's best wines. You can even quench your taste for adventure with a day trip to nearby mountains.
Numerous spas, museums, and art exhibitions are located in Bellevue. For more go to: http://www.visitbellevuewashington.com.
Transportation
Airfare: Special airfare discounts have been arranged through Delta and United Airlines. Contact MacNair Travel at (866) 826-9259,
M-F from 8:30 a.m. to 7:00 p.m. EST; or e-mail: [email protected]; or contact the airlines using a discount code:
Delta: (800) 328-1111 or www.delta.com; Discount Code – NMMNP
United: (800) 426-1122; www.united.com; Ag Code 587506 or Z Code - ZVPF
Shuttle: Roundtrip airport fares at $38/pp if scheduled in advance at: http://smarturl.it/trucking or by phone at (425) 981-700 – be sure to reference “Trucking”.
Taxi:
1-way fares from airport approx. $45-$50
Car:
Special rental car discounts have been arranged through Avis and Budget Rent A Car. To obtain the discount, contact:
Avis: (800) 331-1600; www.avis.com/aagroups; Code: AWD# A683199 Budget:: (800) 842-5628; www.budget.com/aagroups; Code: BDC#U020314
SCHEDULE OF EVENTS
SUNDAY, JULY 17
8:00 a.m. – 3:00 p.m.
Golf Event – The Golf Club at Newcastle Coal Creek Course – Additional Fee
(Shuttle leaves from Hyatt at 6:45 a.m.)
1:00 p.m. – 7:00 p.m.
Conference Registration
3:30 p.m. – 5:30 p.m.
The Size and Weight of Ethical Obligations in Light of Company Expectations - 2016
Back by popular demand, this expert legal team will address the unique ethical dilemmas of the motor carrier
counsel and how the Rules of Professional Conduct across multiple jurisdictions have been interpreted and applied.
Moderator: Wendy L. Patrick, Deputy District Attorney, San Diego District Attorney’s Office, San Diego, CA
Presenters: James E. Friedhofer, Attorney & CEO, Friedhofer PC, San Diego, CA
Arturo Volpe, Vice President & General Counsel, Transportation Services, Inc. (TSI), Laredo, TX
Larry D. Warren, Member, Naman, Howell, Smith & Lee, PLLC, San Antonio, TX
5:30 p.m. – 7:00 p.m.
Cocktail Reception
MONDAY, JULY 18
7:30 a.m. – 1:00 p.m.
7:30 a.m. – 8:00 a.m.
Conference Registration
Continental Breakfast
7:50 a.m. – 8:00 a.m.
ATA Chairman’s Welcome
Presenter:
8:00 a.m. - 9:00 a.m.
Pat Thomas, Sr. Vice President, State Government Affairs, UPS, Inc., Washington, DC
Caution – Work Zone Hazard Ahead: Owner-Operator versus Employee
In 2015, DOL upped its game in its pursuit to make every independent contractor an employee under the Fair
Labor Standards Act. Though the agency’s interpretations do not carry the force of law, agency and judicial
scrutiny of alleged misclassifications will continue to leave trucking’s traditional IC model vulnerable to varied
applications of the economic realities test. This session will highlight trends, projections, defenses, and alternates
to keep carriers’ compliant and freight moving.
Moderator: Prasad Sharma, Partner, Scopelitis, Garvin, Light, Hanson & Feary, PC, Washington, DC
Presenters: Shannon M. Cohen, Partner, Scopelitis, Garvin, Light, Hanson & Feary, PC, Indianapolis, IN
Braden K. Core, Partner, Scopelitis, Garvin, Light, Hanson & Feary, PC, Indianapolis, IN
Christopher J. Eckhart, Partner, Scopelitis, Garvin, Light, Hanson & Feary, PC, Indianapolis, IN
TJ England, Vice President & General Counsel, C.R. England, Inc., Salt Lake City, UT
ATA Litigation Center’s 2016 Forum for Motor Carrier General Counsel
MONDAY, JULY 18 cont.
9:00 a.m. - 10:00 a.m.
Brace for Impact: Wage and Hour Challenges for 2016
The National Law Review has named the DOL’s 2015 “proposed amendment to the Fair Labor Standards Act … and,
in particular the regulations governing ‘white collar’ exemptions for executive, administrative and professional employees … the biggest wage and hour challenge most employers will face in 2016.” The 2016 final rule is expected to
more than double the minimum salary upon which “exempt” status and overtime eligibility are based, as well as
increase the annual salary threshold for highly compensated employees. And that’s just from the Feds. California’s
new labor code adds more hurdles relative to piece-rate employees. This session will provide insights and guidance.
Moderator: Raymond F. Lynch, Partner, Hanson Bridgett LLP, San Francisco, CA
Presenters: Kelly L.S. Arnold, Corp. General Counsel & Secretary. U.S. Xpress Enterprises, Inc., Chattanooga, TN
Richard H. Rahm, Shareholder, Littler Mendelson P.C., San Francisco, CA
Break
10:00 a.m. 10:15 a.m.
10:15 a.m. - 11:30 a.m.
NLRB Aggressively Driving Its Agenda: Trials, Tribulations & Legal Responses
Come August, it will have been 15 months since the National Labor Relations Board’s “ambush
election” rule took effect and a year since a court upheld it. Couple that with the 2016 publication
of DOL’s final rule narrowing the advice exception to the “persuader rule;” as well as the NLRB’s
3-2 Browning-Ferris Industries decision redefining “joint-employer status;” and its new
classification guidance, it is no wonder that industry employers may feel unnerved. This session
will cover the threats, consequences and strategies to protect fleet operations.
Moderator: Steven M. Moss, Partner, Benesch, Friedlander Coplan & Aronoff LLP, Cleveland, OH
Presenters: Jennifer M. Martinez, Senior Counsel, Hanson Bridgett LLP. San Francisco, CA
11:40 a.m. – 12:10 p.m.
Lunch
12:10 p.m. –1:10 p.m.
Deceived No More: Techniques in Assessing Witness Credibility
Often the success of a case rests on an attorney’s ability to read the client, witness or jurors. Learning later that a
key witness has lied on the stand can turn a case on its head. For nearly 70 years, John E. Reid and Associates Inc.
has provided training on effective interview, interrogation and lie detection techniques designed to increase one’s
ability to eliminate the innocent, identify the guilty and motivate subjects to tell the truth. Learn from one of the best
how to identify, evaluate and use witness verbal and nonverbal “behavior symptoms” to evaluate truthful-ness, deceit,
evasiveness, and fabrication. Your takeaway? A deception detection model you can apply well into the future.
Introductions: Pat Thomas, Sr. Vice President, State Government Affairs, UPS, Inc., Washington, DC
Guest Speaker: Joseph P. Buckley, III, President, John E. Reid & Associates, Inc., Chicago, IL
1:20 p.m. - 2:20 p.m.
Just-in-Time: New Food Safety Rules and What They Mean for Motor Carrier Counsel?
As part of FSMA, the Sanitary Transportation of Human and Animal Food (STF) rule was finalized on April 6. The
industry worked with FDA to advance a rule that ensures the responsibility of food safety lies with the entity that best
understands the product, the shipper. FDA also modified the rule to provide considerable flexibility to the industry,
crafting the rule with a great deal of ambiguity. For counsel, however, this vagueness is cause for carrier-related legal
and practical concerns, many of which can be addressed with proper carrier-shipper communication via a
contract. This panel will discuss those concerns and applicable case law, and provide an overview of a number of
contractual options that can mitigate the liability from the carrier’s standpoint.
Moderator: Jon Samson, Executive Director, ATA Agricultural & Food Transporters Conference, Arlington, VA
Presenters: Stephanie S. Penninger, Attorney, Benesch, Friedlander, Coplan & Aronoff LLP, Indianapolis, IN
Leonard “Bud” J. Rodowick, Strategic Rel.-Food Safety & OEMs, Thermo King Corp., Nixa, MO
July 17-20, Bellevue, WA
TUESDAY, JULY 19
7:30 a.m. – 2:15 p.m.
7:30 a.m. – 8:00 a.m.
Conference Registration
Continental Breakfast
8:00 a.m. - 9:00 a.m.
It’s a Matter of Control … or Is It? Broker / Logistics Liability & the Coercion Rule
The volley of liability between broker, logistics firm and carrier when a load goes missing or an accident occurs seems to
vary by jurisdiction (some hinging on “degree of control,” others not). The definition of “control” seems to differ as well.
Discerning the nuances of distinguishing cases could prove critical in structuring supply chain relationships, drafting
freight contracts and defending against liability. Continuing the theme of control, the session will address FMCSA’s
new driver coercion rule (effective Jan. 29th) and what motor carriers need to know to stay compliant.
Moderator:: Lew R.C. Bricker, Equity Partner, SmithAmundsen LLC, Chicago, IL
Presenters: Dan Cook, Principal, Director of Risk Finance, TrueNorth Companies, Cedar Rapids, IA
9:00 a.m. – 10:00 a.m.
Litigation Defense in Light of CSA Rulemaking & Alternative Carrier Selection Strategies
There’s only one constant when it comes to CSA and that’s inconstancy. Once again the Federal Motor Carrier
Safety Administration is seeking to change its safety fitness rating methodology and while we wait, data analytics
providers introduce alternative scoring options for shippers and prosecutors. What’s a carrier to do? This session
will provide an update on rule changes and explore how motor carrier counsels are defending against CSA and such
third party scores in court.
Moderator: Rob Abbott, Vice President, Safety Policy, American Trucking Associations, Arlington, VA
Presenters: Steven Bryan, Chief Executive Officer, Vigillo, LLC, Portland, OR
K. Stephen Powers, Shareholder, Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, Chattanooga, TN
Break
10:00 a.m. 10:15 a.m.
10:15 a.m. – 11:15 a.m.
Considering an Alternate Route: Seat Belt Gag Rule Revisited
Does the recent activity in Minnesota and West Virginia signal a national overturning of the Seat Belt Gag Rule,
thereby allowing the admittance of safety belt use or non-use evidence? If so, what’s motivating the change and
what are the potential legal consequences? This session seeks to answer these important questions.
Moderator: Robert Pitcher, Vice President, State Laws, American Trucking Associations, Arlington, VA
Presenters: Gregory T. Jones, Partner, Wright, Lindsey & Jennings, LLP, Little Rock, AR
Lee A. Mickus, Partner, Taylor Anderson, LLP, Denver, CO
ATA Litigation Center’s 2016 Forum for Motor Carrier General Counsel
TUESDAY, JULY 19 cont.
11:15 a.m. - 12:30 p.m.
Fatigue Management: A Legal Exercise in Distributing the Load and Shifting Gears
It goes without saying that fatigued driving was, is and will be a focus of the Federal Motor Carrier Safety Administration’s rulemaking and the industry’s safety agenda and programs. Nevertheless, in the world of trucking, sometimes
“no good deed goes unpunished.” This session will address what steps a carrier can take to strengthen its safety
record while not weakening its case in the courtroom.
Moderator: Michael J. Noble, Senior Director, Fleet Safety, Wal-mart Transportation, LLC, Bentonville, AR
Presenters: Robert Molloy, Ph.D., Director, Office of Highway Safety, National Transportation Safety Board,
Washington, DC
Andrew Moore-Ede, Director of Client Services, Circadian Technologies, Inc., Stoneham, MA
12:30 p.m. – 1:00 p.m.
Buffet Lunch
1:00 p.m. - 2:15 p.m.
Preparing for and Responding to a NTSB Investigation: A Calculated Approach to Avoiding
Compliance Blind Spots
Since its inception in 1967, the National Transportation Safety Board has conducted independent investigations of
all civil aviation accidents in the U.S. and major accidents in the other transportation modes. Though the Board’s
intent is to improve transportation safety and its probable cause determinations cannot be entered into evidence,
nevertheless motor carriers are not naïve to the possible consequences and value of such an investigation. This
session will provide insights into NTSB’s and counsel’s approach, experience, and guidance on legally preparing
for and responding to an investigation.
Moderator: Ann G. Gawalt, Deputy General Counsel, National Transportation Safety Board, Washington, DC
Presenters: Thomas E. Evans, Vice President & General Counsel, Walmart U.S. Legal - Merchandising,
Marketing and Supply Chain, Bentonville, AR
Thomas W. Tobin, Partner, Wilson Elser Moskowitz Edelman & Dicker LLP, White Plains, NY
2:20 p.m. – 3:00 p.m.
6:00 p.m. – 7:30 p.m.
A Washington Perspective: WTA v. State of Washington – What’s Next?
California isn’t the only state flexing its legal muscle. This session will present a case study
in how a state agency attempts to eliminate the use of owner/operators and its implications
for the FAAAA preemption.
Presenter: Phil Talmadge, Partner, Taldmadge/Fitzpatrick/Tribe, Seattle, WA
Cocktail Reception
July 17-20, Bellevue, WA
WEDNESDAY, JULY 20
7:30 a.m. – 12:15 p.m.
Conference Registration
7:30 a.m. – 8:00 a.m.
Continental Breakfast
8:00 a.m. - 9:00 a.m.
Counsel’s “Baffle” against the Surge of Inflated Damages
In cases involving catastrophic injury, the presentation of a life care plans (to compensate the plaintiff for future health
care needs) is now common practice. Defense counsel’s failure to anticipate, identify and defend against inflated
damages contained in such a plan has led to aberration verdicts and inflated settlements. This session will tackle how
counsel may creatively use the current advances in medicine and the Affordable Care Act to mitigate future care plans
and medial damages. Also covered will be state by state variations, strategic case management, claimant’s duty to
mitigate, and how to deal with the collateral source rules, current rulings and related forecasts.
Presenters: Gregory D. Conforti, Shareholder, Johnson & Bell, Ltd., Chicago, IL
John E. Hall, Jr., Partner, Hall Booth Smith, P.C., Atlanta, GA
John E. Scarbrough, Ph.D., President & Principal, Litigation Analytics, Inc., Ridgefield, CT
9:00 a.m. - 10:30 a.m.
No Deadheading Here: The Power and Weight of Human Factors Expert Testimony
Expert testimony services in the area of forensic human factors (e.g., kinematics, reaction time, injury biomechanics,
human factors engineering, and intentional blindness) have become a burgeoning boutique industry over the last
decade, particularly in the area of safety human factors. This session will look beyond the established environmental,
organizational and job factors, and human and individual characteristics which influence safety behavior, and address
the emerging trends and tools used in human factors testimony and the effectiveness of such testimony.
Moderator: David B. Hall, Shareholder, Baker, Donelson, Bearman, Caldwell & Berkowitz, PC , Birmingham, AL
Presenters: S. Karen Bamberger, Shareholder, Betts, Patterson & Mines, P.S., Seattle, WA
Shelley Bennett, Sr. Vice President & General Counsel, Lytx, Inc., San Diego, CA
David A. Krauss, Ph.D., Principal Scientist, Human Factors, Exponent, Inc., Los Angeles, CA
Break
10:30 a.m. 10:45 a.m.
10:45 a.m. - 12:15 p.m.
Accident Reconstruction & Harnessing all Available Resources in Motor Carrier Defense
Advanced accident reconstruction requires meticulous evidence gathering, analysis and presentation. It is one of
a number of scientific and technical approaches to constructing a formidable case. This session will enumerate
the technology and other resources available to motor carrier counsel and will discuss how they are being used
and how effectively.
Moderator: F. Jason Goodnight, Partner, Franden | Farris | Quillin | Goodnight + Roberts, Tulsa, OK
Presenters: Robert J. Swint, Chief Executive Officer, ATA Associates, Inc., Houston, TX
Bill Venegoni, Associate General Counsel, Walmart U.S. Legal – Merchandising. Marketing & Supply
Chain, Bentonville, AR
ATA LITIGATION CENTER
ATA and the ATA Litigation Center engage in litigation to advance and protect the interests of the motor carrier industry in federal and
state courts around the nation, as a direct party, an intervenor, and as an amicus curiae. ATA also monitors and educates its members
about legal developments in courts and legislatures that will affect the motor carrier industry. To learn more, go to:
http://www.trucking.org/Law_and_Litigation.aspx.
ATA MEMBER LAW FIRMS
Adams and Reese LLP
McGuireWoods LLP
Baker, Donelson, Berman, Cadwell & Berkowitz, PC
Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
Benesch, Friedlander, Coplan & Aronoff LLP
Rebman, Linhares & Beachem, P.C.
Betts, Patterson & Mines, P.S.
Reminger Co., LPA
Breazeale, Sachse & Wilson, LLP
Roberts Perryman, P.C.
Carlock, Copeland & Stair, LLP
Scopelitis, Garvin, Light, Hanson & Feary, P.C.
Drivers Legal Plan
Setliff & Holland, P.C.
Fee, Smith, Sharp & Vitullo LLP
Sheppard, Mullin, Richter & Hampton LLP
Fernandez Trial Lawyers, P.A.
Simon, Peragine, Smith & Redfearn, LLP
Fisher & Phillips LLP
Smith Moore Leatherwood LLP
Garvey Schubert Barer
Steptoe & Johnson LLP
Grant Thornton LLP
Strasburger & Price, LLP
Hanson Bridgett LLP
The Bassett Firm
Jackson Lewis P.C.
The Fuentes Firm, P.C.
LeClairRyan
Theodora Oringher P.C.
Lewis Brisbois Bisgaar & Smith LLP
Wicker, Smith, O’Hara, McCoy & Ford, P.A.
Littler Mendelson P.C.
Williams Kastner
Mayer Brown LLP
Wilson Elser Moskowitz Edelman & Dicker LLP
Nicklaus & Associates, P.A.
Wilson Smith Cochran Dickerson