LEGAL PRIMER: 2014 UPDATE

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1 Eckert Seamans presents LEGAL PRIMER: 2014 UPDATE August 7, 2014 Eckert Seamans Cherin & Mellott, LLC 600 Grant Street, 44 th Floor Pittsburgh, PA phone fax

2 AGENDA 7:45 8:30 a.m. Registration and Continental Breakfast 8:30 8:45 a.m. Welcome & Introductions Professor Mark D. Yochum 8:45 9:15 a.m. Affordable Care Act: Where Are We Now? Kathryn A. English and Sandra R. Mihok 9:15 9:45 a.m. Meeting the Challenge: Managing Internal Investigations in Today's Regulatory Framework and Pro-Enforcement Environment Mark C. Levy and Richard S. Wiedman 9:45 10:15 a.m. Attorney-Client Privilege and Work-Product Issues for Corporate Counsel and Clients Kevin P. Allen 10:15 10:30 a.m. Morning Break 10:30 11:00 a.m. Unmanned Systems - Going On Autopilot Could Cost You Earl W. Comstock 11:00 11:30 a.m. Hot Topics in Pennsylvania Mass Tort Law Daniel J. Sinclair 11:30 Noon Noon 1:00 p.m. Avoiding Trouble in this Age of Heightened Corporate Enforcement David M. Laigaie Lunch 1:00 1:30 p.m. Protecting Your Brand in Sports Sponsorship or Naming Rights Agreements David P. Franklin 1:30 2:00 p.m. Leveling the Playing Field Against Patent Trolls Carol A. Marmo and David V. Radack 2:00 2:30 p.m. The Data Breach Reality: What To Do When (Not If) You're a Victim of a Cyber Attack Sandy B. Garfinkel 2:30 2:45 p.m. Afternoon Break 2:45 3:15 p.m. Pregnancy and Post-Partum Issues in the Workplace Allison L. Feldstein 3:15 4:15 p.m. The New PA Code of Judicial Conduct and Its Impact on Lawyer's Ethics Professor Mark D. Yochum 4:15 p.m. Adjournment

3 TABLE OF CONTENTS Tab 1 Tab 2 Tab 3 Tab 4 Tab 5 Tab 6 Tab 7 Tab 8 Tab 9 Tab 10 Tab 11 Affordable Care Act: Where Are We Now? Meeting the Challenge: Managing Internal Investigations in Today's Regulatory Framework and Pro-Enforcement Environment Attorney-Client Privilege and Work-Product Issues for Corporate Counsel and Clients Unmanned Systems - Going On Autopilot Could Cost You Hot Topics in Pennsylvania Mass Tort Law Avoiding Trouble in this Age of Heightened Corporate Enforcement Protecting Your Brand in Sports Sponsorship or Naming Rights Agreements Leveling the Playing Field Against Patent Trolls The Data Breach Reality: What To Do When (Not If) You're a Victim of a Cyber Attack Pregnancy and Post-Partum Issues in the Workplace The New PA Code of Judicial Conduct and Its Impact on Lawyer's Ethics

4 AFFORDABLE CARE ACT: WHERE ARE WE NOW? Presented by: Kathryn A. English Member & Vice Chair of the Business Division Eckert Seamans Cherin & Mellott, LLC 600 Grant Street, 44 th Floor Pittsburgh, PA Kate English practices in the employee benefits area, focusing on ERISA and tax matters as well as executive compensation. She represents employers on a variety of employee benefits matters, including the design and ongoing administration of qualified retirement plans, health and other welfare plans, deferred compensation plans and stock option and other incentive arrangements, including the requirements of Internal Revenue Code Section 409A. Kate also assists buying and selling companies in assessing employee benefits related liabilities and in determining how best to transition benefits for employees transferred as part of a sale. Additionally, she represents employers and other ERISA plan fiduciaries in proceedings before the U.S. Department of Labor. Sandra R. Mihok Member & Chair, Employee Benefits and Compensation Group Eckert Seamans Cherin & Mellott, LLC 600 Grant Street, 44 th Floor Pittsburgh, PA Sandra Mihok focuses her practice on employee benefits and related areas, including plan design and drafting, tax compliance, fiduciary and investment issues and HIPAA privacy compliance. She regularly represents clients in matters involving the Internal Revenue Service and the U.S. Department of Labor. Sandra also regularly assists employers in the design, drafting, operation and communication of tax-qualified retirement plans, pension plans; cash balance plans; 401(k) plans; profit sharing plans; employee stock ownership plans; health, disability, life, severance and other welfare benefit programs. She also specializes in medical privacy and data security issues under the Health Insurance Portability and Accountability Act of 1996 (HIPAA) for employers and health care providers.

5 Affordable Care Act: Where Are We Now? Presented by: Kathryn A. English Sandra R. Mihok August 7, 2014 Significant Provisions Already Effective Dependent children covered until age 26 No annual dollar limits on essential health benefits Preventive care with no cost sharing No eligibility waiting period over 90 days Health insurance exchanges No pre-existing condition exclusions Limits on cost-sharing and deductibles Individual mandate 1

6 Employer Mandate Large employers (those with an average of at least 50 full-time employees, or 100 for 2015) that do not offer substantially all full-time employees (95%, or 70% for 2015) the opportunity to enroll in minimum essential coverage through an employer-sponsored plan may be penalized if at least one full-time employee receives a federal premium tax credit for health coverage purchased through an exchange. Employer Mandate Penalty = $2,000 x number of FTEs (minus 30 employees, or 80 employees for 2015) BUT, if employer offers substantially all FTEs coverage (95%, or 70% in 2015) lesser penalty applies of $3,000 for any FTE who actually receives a federal premium tax credit 2

7 Employer Mandate On July 22, 2014 U.S. Court of Appeals for D.C. Circuit ruled 2-1 in Halbig v. Burwell that the law only allows federal premium tax credits to be awarded through the state-based exchanges. U.S. Court of Appeals for Fourth Circuit ruled 3-0 in King v. Burwell that the law allows federal premium tax credits to be awarded through both the state and federal exchanges. Contraceptive Mandate Litigation Preventive care under the ACA includes coverage for FDA-approved contraceptive methods. Plans of religious employers are exempt from this requirement, and an accommodation is available for plans of certain other non-profit religious organizations (like non-profit religious hospitals and colleges). 3

8 Contraceptive Mandate Litigation On June 30, 2014, the U.S. Supreme Court ruled 5-4 in Burwell v. Hobby Lobby Stores, Inc. in favor of three for-profit corporations that claimed that the contraceptive mandate violated the federal Religious Freedom Restoration Act of Then on July 3, an unspecified majority of the Court temporarily exempted Wheaton College from a paperwork obligation imposed by the ACA, which is part of the accommodation for non-profit religious organizations. Leased Employees Employers must offer coverage to applicable percentage of common law employees Common law employees employer has the right to direct and control what shall be done and how it is done 20 Factor Test Behavioral Control, Financial Control and Contractual Relationship 4

9 Leased Employees Professional Employer Organizations (PEOs) Historically involved lease-back situations Do not recruit and hire from general labor market Are joint employers for employment law purposes (but not tax/benefits) IRS presumes these are employees of client (Revenue Ruling ) Leased Employees Temporary Staffing Agencies Typically recruit, screen, hire, payroll, benefits, employment taxes, employment policies (performance/conduct), right to discipline, terminate or reassign. 5

10 Leased Employees 4980H Proposed Regulations IRS recognized staffing agency could be common law employer and cited Revenue Ruling (Manager from staffing agency on site) Revenue Ruling more typical situation (No manager on site) In Rev. Ruling 75-41, the leasing agency had the right to evaluate potential candidates, assign to clients, instruct as to work hours and nature of duties, evaluate performance and, importantly, to discharge Leased Employees Shared Responsibility Final Regulations Employer will be viewed as offering coverage to leased employees if pay an additional fee to the staffing agency for those enrolled in coverage Applies if the leased employees are the common law employees of the employer Be careful with contract! 6

11 Health Reimbursement Arrangements Stand-alone HRAs that cover essential health benefits are generally forbidden after This includes HRAs that reimburse coverage purchased on the ACA exchanges. This includes any arrangement whereby the employer funds or reimburses the cost of individual insurance including through a cafeteria plan. Also, employers may not permit employees to pay for coverage on the exchange with pre-tax dollars. Health Reimbursement Arrangements Exceptions: HRAs that are integrated with group health plans that satisfy the no annual limit on minimum essential benefits. Integration includes waiver option and benefits only for those enrolled in coverage. HRAs that only reimburse excepted benefits. Retiree only HRAs 7

12 Questions? Kate English (412) Sandra Mihok (412)

13 MEETING THE CHALLENGE: MANAGING INTERNAL INVESTIGATIONS IN TODAY S REGULATORY FRAMEWORK AND PRO-ENFORCEMENT ENVIRONMENT Presented by: Richard S. Wiedman Member & Chair, Environmental Group Eckert Seamans Cherin & Mellott, LLC 600 Grant Street, 44 th Floor Pittsburgh, PA Rick Wiedman has concentrated his practice in the areas of environmental business counseling and environmental litigation since He represents clients before federal and state environmental agencies, counsel clients on regulatory compliance issues and advises on environmental considerations in a wide variety of business transactions. Rick also devotes significant time to the negotiation and prosecution of environmental permit and regulatory challenges, the defense of federal and state enforcement actions and the representation of clients in remedial action/corrective action and cost recovery matters under Superfund, RCRA and their state counterparts. Mark C. Levy Member Eckert Seamans Cherin & Mellott, LLC Two Liberty Place 50 South 16th Street, 22nd Floor Philadelphia, PA Mark Levy is a litigator and trial attorney who has represented Fortune 500 companies in complex commercial litigation in state and federal forums across the country. He has spent most of his career defending pharmaceutical and medical device companies, defense contractors, transportation companies and manufacturers of products in heavily-regulated industries in claims made by federal, state and local law enforcement agencies. Corporations and individuals charged with violations of federal criminal law often turn to Mark for guidance. He has handled investigations into alleged criminal and civil violations of federal statutes and regulations, including the False Claims Act, the Food, Drug and Cosmetic Act, the Clean Streams and Clean Air Acts, Medicare and Medicaid regulations, and Federal Acquisition regulations. Mark has also conducted internal investigations, from routine to serious, for companies in the pharmaceutical, medical device, oil and gas, and heavy manufacturing industries.

14 Meeting the Challenge: Managing Internal Investigations in Today s Regulatory Framework and Pro-Enforcement Environment Presented by: Richard S. Wiedman, Esquire Mark C. Levy, Esquire August 7, 2014 HYPOTHETICAL: As the new in-house counsel of a recently-acquired multiplant manufacturing business you are contacted by an EHS manager who advises that, in reviewing data for monthly DMRs for one of the facility s NPDES permits, he noticed anomalies between results and operational data. Upon investigation, he thinks there is reason to believe that conditions during sampling may have been manipulated to ensure that results showed compliance. It turns out that, during the period when sampling was conducted, a hose was hooked up to the discharge channel and drinking water from the POTW was used to dilute the wastewater stream. 1

15 HYPOTHETICAL (PAGE 2); Discussion between in-house counsel and plant manager and plant EHS personnel confirms that, on a routine basis, plant practice for many years has been to inject POTW water during sampling events to ensure compliant test results. Further, there is some indication that this practice was adopted at the plant simply because it had been done at other plants where that plant manager previously had worked. Moreover, there are facts which suggest senior management knew about this systemic practice. HYPOTHETICAL (PAGE 3); Liability Analysis shows possible: Violation of NPDES Permit terms and conditions. Violation of Clean Water Act and state counterpart. False certifications. Unpermitted discharges. 2

16 Voluntary Disclosure Under Applicable Environmental Laws and Policies U.S. EPA policies promote self-auditing by providing penalty relief for voluntarily disclosed violations promptly disclosed as a result of a qualifying audit. Voluntary Disclosure Under Applicable Environmental Laws and Policies Audit Policy - Incentives for Self-Policing: Discovery, Disclosure, Correction and Prevention of Violations, 65 Fed. Reg (April 11, 2000) Voluntary discovery via audit or environmental management system. Prompt disclosure within 21 days. Correction within 60 days/prevention of recurrence. Relief from gravity-based penalties v. economic benefit. No referral for criminal prosecution. Limitations re: repeat violations or imminent and substantial endangerment. 3

17 Voluntary Disclosure Under Applicable Environmental Laws and Policies New Owner Policy Interim Approach to Applying the Audit Policy to New Owners, 73 Fed. Reg (August 1, 2008) Allows new owners to enter into an audit agreement within nine months of closing of the transaction. No penalties for the period prior to acquisition. Relief from gravity and economic benefit if corrected within 60 days of discovery or such other agreed upon timeframe. Voluntary Disclosure Under Applicable Environmental Laws and Policies Alternative to prosecutions by DOJ used to deter conduct. Relies on self-policing by corporation. Provides for varying degrees of leniency. State Laws and Policies Environmental program authority typically delegated to individual states. Disclosure under U.S. EPA policies does NOT override state and local enforcement prerogatives. Majority of states have some mechanism for voluntary disclosure of environmental violations. 4

18 Internal Investigation Decision Tree High- Stakes Issues Serious Issues Crisis Response Team and Management Serious Threats (Possible Government Disclosure, Whistleblower, Significant Liability) Board Committee, Senior Management, Government Involvement Board Notification, Senior Management Oversight Routine Continuous Process Senior Management Review and Approval Coordination: Voluntary Disclosure, Parallel Proceedings and Internal Investigation Whistleblower? Parallel civil proceedings? Section 308 Request? Indemnity issues? The Balancing Act: Coordinating Voluntary Disclosure, Parallel Proceedings and Internal Investigation. 5

19 Crisis Stakeholders and Risks Congress and Executive Branch (Legislation, Sanctions, Oversight Investigation) Public Relations and Reputational Damage (Media) Competitors and Financial Impact (Stock market competitive impact) Government Prosecution (International, Federal and State) Company A Financial, Management Change and Criminal/Civil Liability Collateral Litigation (Shareholder Suits, Class Actions) Serious Internal Investigations Significant violations (e.g. FCPA, Trade/Sanctions Compliance, Antitrust). Outside counsel involvement. Significant remediation and disciplinary actions. Potential government voluntary disclosure. Non-systemic violations and confined to discrete operations or geographic areas. 6

20 Defining Routine Issues for Investigation Not a major matter (e.g. FCPA, False Claims Act, Antitrust) No alleged Board or Senior Management involvement Typical Routine matters Theft Accounting fraud Professional fraud Privacy or information access violations HR Issues: Discrimination, sexual harassment Employee misconduct Board Oversight Role High-Stakes, High-Profile: Board plays active role. Separate committee assigned to oversight and review. Serious: Board actively monitors internal investigation and may become more involved if facts dictate. Routine: Board monitors on quarterly basis and any significant investigations. 7

21 Investigation Risks Independence and integrity Wall-off subjects of investigation Timely investigation and results Routine investigations should be completed in days (120 days at outside). Protect attorney-client privilege and maintain confidentiality in appropriate cases. Documents Issue broad HOLD LETTER in Serious Instruct parties to suspend document retention policy and collect all relevant documents. INVOLVE Information Technology quickly. Proceed Carefully: PRESERVE PRIVILEGE: Protect by noting as such. 8

22 Witness Interviews Order of importance He said-she said Multiple witnesses Preparation Documents Background of witness What is objective? Practical concerns Location Attendees/Witness Memorialize (do not record) Approach The Many Approaches to Interviews: Who? 9

23 Successful Interviews You are not the police and you are not a friend. Do not write out every question or read from list. Maintain eye contact with witness. Ask easy questions in the beginning. Develop your own rapport. Want to make sure witness tells his or her story. Ask open-ended non-leading questions. Weave in documents to focus questions and issues. Be persistent and test every witness. Do not argue with witness; do not become emotional. Ask the 64 Thousand Dollar Question(s) get their explanations on the record. Protecting the Privilege Serious investigations often require preservation of privilege. Routine investigations often do not require preservation of privilege. Dangers for waivers or failure to protect Risk from non-legal related communications: Public relations participation Discussion and disclosure for purposes other than providing legal advice and counsel 10

24 Demystifying Upjohn Warnings to Witness Purpose of Upjohn Warnings: Preserves Ability to Use Statement Against Witness (e.g. hand over to government or use against witness in civil litigation). Nature and purpose of interview Attorney does not represent the employee. What if employee asks if he or she needs a lawyer? Or lose his or her job? Company holds and decides on attorney-client privilege and decides when and if to disclose. The so-called Upjohn warning takes its name from the seminal Supreme Court case Upjohn Co. v. United States, in which the court held that communications between company counsel and employees of the company are privileged, but the privilege is owned by the company and not the individual employee. Upjohn Co. v. United States, 449 U.S. 383 (1981). Concluding the Investigation: The Written Report Carefully consider the facts. Apply witness credibility determinations. Use your judgment. Follow burden of proof. Document the reasons for your decision. Inform interested parties without discussing specifics of investigation and reasons for decision. Coordinate with HR and legal. Remediation and Compliance. Be prepared for litigation. 11

25 Questions? Richard S. Wiedman, Esquire (412) Mark C. Levy, Esquire (215)

26 ATTORNEY-CLIENT PRIVILEGE AND WORK-PRODUCT ISSUES FOR CORPORATE COUNSEL AND CLIENTS Presented by: Kevin P. Allen Member Eckert Seamans Cherin & Mellott, LLC 600 Grant Street, 44 th Fl. Pittsburgh, PA Kevin Allen concentrates his practice on commercial litigation with an emphasis on contractual disputes and business torts, as well as First Amendment and defamation disputes. In commercial cases, he represents a wide range of clients in contractual disputes, shareholder and securities cases and matters involving alleged business torts. In defamation cases, Kevin s experience includes the defense of a senior corporate executive accused of slander in addition to the prosecution of a libel case on behalf of an individual against a foreign media company and a local individual. He frequently appears before state and federal courts in western Pennsylvania. In addition to his bench and jury trial experience, Kevin has argued appellate cases before the Third Circuit, the Federal Circuit, and Pennsylvania s Supreme, Superior and Commonwealth Courts.

27 Attorney-Client Privilege and Work-Product Issues for In-House Counsel Presented by: Kevin P. Allen August 7, 2014 What s the purpose? Why do we have an attorney-client privilege? 1

28 Restatement (Third) Law Governing Lawyers Elements 1. a communication 2. made between privileged persons 3. in confidence 4. for the purpose of obtaining or providing legal assistance for the client Restatement 68; In re Grand Jury, 705 F.3d 133 (3d Cir. 2012) Privileged Person Client Lawyer Agents of either who facilitate communications Agents of lawyer who facilitate the representation Restatement 70 2

29 Facts v. Communication of Facts Facts Not protected Communication of facts Protected and the Attorney-Client Privilege communications are as eligible as any other form of communication for attorneyclient privilege protection However, s create their own unique set of risks and uncertainties particularly in the corporate setting 3

30 Vioxx Litigation 501 F. Supp. 2d 789 (E.D. La. 2007) If you read just one case... Vioxx (cont d.) Thousands of documents withheld on the basis of the attorney-client privilege The Court appointed a Special Master (Rice) to review a few thousand sample documents Master s report provides roadmap for in-house counsel on what is protected, what could be protected, and what can t be protected 4

31 Vioxx (cont d.) Use of in the corporate setting confuses the for purposes of legal advice issue Lessons from Vioxx In a mixed purpose communication, the primary purpose must be legal for the privilege to apply Primary is not the same as significant or important. If purpose is equally legal and nonlegal, privilege will not apply. The burden on party asserting the privilege is greater because of . Document-bydocument affidavits are often needed. 5

32 Vioxx - Examples EXAMPLE: To: In-house Counsel From: Senior Vice President cc: CEO Re: Contract Damages One of our suppliers has breached its contract. Are we able to recover the profits that we lost from missed sale opportunities? PRIVILEGED Vioxx - Examples EXAMPLE: To: Vice President - Sales Vice President - Marketing In-house Counsel From: Division President Re: Press Release [attached pdf] Attached is a proposed press release regarding the end of our acquisition negotiations. Please provide your comments on it. PRESUMED NOT PRIVILEGED 6

33 Vioxx - Examples To: In-house Counsel Chief Financial Officer From: CEO Date: June 30, 2007 Can we properly recognize income in this quarter although the product will not be delivered until next quarter? PRESUMPTIVELY NOT PRIVILEGED To: From: Re: Date: Vice President B Manager A Products Sold February 20, 2013, 11:44 a.m. We had a good month. We sold 49,000. M.A. To: From: Re: Date: Manager A Vice President B Products Sold February 20, 2013, 10:03 a.m. How many widgets did we sell in January? VPB 7

34 To: Vice President B From: Outside Counsel Re: Damages Date: February 19, 2013 In order for me to determine the scope of the company s potential damages from the breach of contract, I need to know how many widgets the company sold in January. Please let me know. To: Manager A From: Vice President B Re: Termination of John Smith Date: February 20, 2013, 12:33 p.m. We are obligated to make the severance payments to Smith. VPB 8

35 To: Vice President B From: In-House Counsel Re: John Smith Date: February 20, 2013, 11:12 a.m. As you requested, I ve looked over Smith s employment contract, and it is my preliminary opinion that he is entitled to severance payments. IHC Preparatory Communications and Dissemination of Legal Advice The privilege protects certain communications even when counsel is not involved directly Preparatory communications Dissemination of legal advice 9

36 Copy me on all s so that we can take advantage of the attorney-client privilege Rice Unethical Sanctionable Spoliation Suppression of Evidence Won t Stop Until Judges Take a Stand 10

37 Craig v. Rite Aid Corp., 2012 WL (M.D. Pa. Feb. 9, 2012), on reconsideration in part, 2012 WL (M.D. Pa. March 30, 2012) Facts Class action alleged misclassification of assistant store managers as exempt under Fair Labor Standards Act Documents at issue related to multi-faceted internal corporate restructuring involving both business and legal issues 11

38 Types of Documents PowerPoint slides Spreadsheets strings Few were prepared by lawyers Many not distributed to any lawyer Some labeled Privileged ; some not Lessons Presence or absence of counsel from string or other communication is not dispositive Preparatory Dissemination While labeling a document as Privileged and/or Work Product does not make it so, it is helpful to do so Burden is on proponent of the privilege. If you really want to protect a document from disclosure, provide evidence (affidavits) demonstrating that privilege applies 12

39 Waiver/Inadvertence Inadvertent Disclosure - Waiver 1. Reasonableness of precautions taken in view of the extent of the production; 2. Number of inadvertent disclosures; 3. Extent of the disclosure; 4. Delay and measures taken to rectify the disclosure; and 5. Interests of justice. 13

40 Corporate Counsel Corporate Officer U.S. v. Norris When does corporate counsel also represent a corporate officer individually? The officer must show: 1. he approached counsel for the purpose of seeking legal advice; 2. he made it clear to counsel that he was seeking advice in individual capacity; 3. counsel did communicate with officer in individual capacity, despite conflicts; 4. communications were confidential; and 5. communications did not concern company matters. 14

41 Work Product Pennsylvania s rule (4003.3) is wildly different from the Federal rule (26(b)(3)) Pennsylvania Work Product Is Generally Discoverable Federal Work Product Is Generally Protected from Discovery Pennsylvania has no anticipation of litigation requirement for attorney work product Pennsylvania Has Different Treatment for Attorney Work Product and Non-Attorney Work Product Broader protection for attorney work product Very narrow protection for non-attorney work product Safety hazard example 15

42 Questions? Kevin P. Allen, Esq. (412)

43 UNMANNED SYSTEMS - GOING ON AUTOPILOT COULD COST YOU Presented by: Earl W. Comstock Member 1717 Pennsylvania Avenue, N.W. 12 th Floor Washington, DC Earl Comstock focuses his practice on Federal legislative and regulatory matters. He has experience in drafting complex legislation and more than 20 years of experience advising clients who have legislative, regulatory or legal issues related to telecommunications, the Internet, and emerging communications technologies. Earl also has experience with legislative and regulatory issues involving natural resource development.

44 Unmanned Systems Going on Autopilot Could Cost You Presented by: Earl W. Comstock August 7, 2014 Unmanned Systems Basic Concepts Unmanned systems often called drones can be found on land, sea and air. There are two types remotely controlled and autonomous. Remotely controlled means there is a human operator who directs the system. Autonomous means that the system is controlled by a computer with no human input. 1

45 Unmanned Systems are Not New Model aircraft have been flown by remote control for decades. Automated trains are used every day in cities around the world. Unmanned spacecraft are used to resupply the International Space Station. Remotely piloted subs, vehicles and robots are used worldwide for underwater work, mine removal and other dangerous tasks. New Uses are Catching Public Attention Most people are familiar with unmanned aerial vehicles UAVs like the armed Predator used overseas by the military and CIA. Google is developing an autonomous car. No driver is needed (though one is required now). Amazon is working on autonomous UAVs to use to deliver packages to homes quickly. Filmmakers, farmers and real estate agents are seeking FAA waivers to use small UAVs. 2

46 What Law Applies to Unmanned Systems? Many people look at new technologies and think existing law doesn t apply and/or that new law is needed. In some cases they may be correct, but in most cases existing law can be applied. In the case of unmanned systems, the fact that is most likely to complicate the legal analysis is whether a system is remotely piloted or autonomous. Remotely Piloted Is Fairly Simple Most existing laws involving vehicles, boats, and aircraft apply rules to a driver, operator, or pilot. In the case of an unmanned system, these existing rules will likely be applied to the remote operator. This can cause some difficulty in actual application (rules for seat belts for example) but the principles are easy to apply. 3

47 Autonomous Systems are More Difficult Because a computer is the operator of an autonomous system, there is no person directly controlling the operation of the system to hold accountable. As a result, the manufacturer, programmer or owner of the autonomous system, or all of them, will likely be the responsible party. Absent new laws it will be left to the courts to determine who is responsible. Avoiding Obstacles is the Challenge The single biggest technical and legal challenge that unmanned systems face is avoiding obstacles other planes, boats, cars, people and property. This sense and avoid dilemma is what is driving the delay in FAA rules on UAVs. Likewise, Google s car may be delayed for years by the old guy in a Buick problem i.e, managing human interaction with robots. 4

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