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Emerging Litigation Podcast

Emerging Litigation Podcast

Hosted by Tom Hagy

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Episodes

127

Latest episode

Aug 2026

Language

EN-US

About the show

Litigators and other professionals share their thoughts on ELP about new legal theories, new areas of litigation, and how existing (sometimes old) laws are being asked to respond to emerging risks. The podcast is designed for plaintiff attorneys, defense counsel, corporations, risk professionals, litigation support companies, law students, or anyone interested in the law. The host is Tom Hagy, long-time legal news writer and enthusiast. He is former editor and publisher of Mealey's Litigation Reports, Founder and Editor-in-Chief of HB Litigation, co-owner of Critical Legal Content, and Editor-in-Chief of multiple legal blogs for clients. Contact him at Editor@LitigationConferences.com.

Listen to episodes

60 recent
August 16, 2026Episode 12627 min

The Texas Two-Step: Testing Bankruptcy Law and Jury Rights with Adam Silverstein

What happens when a company facing billions of dollars in mass tort claims is still financially healthy—but turns to bankruptcy anyway?In this episode, I’m joined by plaintiff lawyer Adam Silverstein of Otterbourg to talk about the Texas two-step, a restructuring strategy that can move mass tort liabilities into a separate subsidiary, put that entity into Chapter 11, and shift thousands of claims from jury trials into bankruptcy court.We use Johnson & Johnson’s talc litigation as a jumping-off point, including its unsuccessful LTL bankruptcy filings and the question courts keep coming back to: Is the debtor actually in financial distress, or is bankruptcy being used to manage litigation? We also get into J&J’s third attempt, prepackaged bankruptcy voting, and how the Supreme Court’s Purdue decision changed the landscape for nondebtor releases.Adam also takes us to North Carolina, where other two-step bankruptcies have kept mass tort claims—many involving asbestos—tied up for years. That leads us into a harder part of the conversation: not everyone on the plaintiffs’ side sees these cases the same way. When litigation can stretch on for a decade or more, certainty can have its own appeal.It’s a conversation about mass torts, Chapter 11, corporate restructuring, and what happens to the right to a jury trial when bankruptcy enters the picture.Jump in to hear Adam’s perspective on where the Texas two-step stands, why courts have pushed back, and what may come next.______________________________________Thanks for listening! If you like what you hear please give us a rating. You'd be amazed at how much that helps. If you have questions for Tom or would like to participate, you can reach him at Editor@LitigationConferences.com. Ask him about creating this kind of content for your firm -- podcasts, webinars, blogs, articles, papers, and more. Tom on LinkedInEmerging Litigation Podcast on LinkedInEmerging Litigation Podcast on the HB Litigation site

August 4, 2026Episode 12538 min

The Hidden Danger of Carbon Monoxide: Proving Exposure, Brain Injury & Liability with Sam Cannon

Carbon monoxide poisoning is one of the most dangerous—and most overlooked—sources of catastrophic injury. Because it's odorless, colorless, and often mistaken for the flu, victims may not realize they've been exposed until long after the evidence has begun to disappear. That reality creates unique challenges not only for families, but also for the attorneys trying to prove what happened. In this episode, I speak with Sam Cannon of Cannon Law about the complexities of carbon monoxide poisoning litigation and why these cases often involve far more than a faulty appliance. We discuss how deferred maintenance, inadequate safety practices, and layered ownership structures can combine to create dangerous living conditions—and why proving liability often requires identifying multiple responsible parties. Sam also explains the science behind carbon monoxide exposure, why injuries can be difficult to diagnose, and how advanced imaging, toxicology, atmospheric readings, and expert testimony help establish both exposure and long-term brain injury. We also explore common defense strategies, the critical role of expert witnesses, and why these cases frequently become battles over causation as much as negligence. Whether you're a plaintiff attorney, defense lawyer, insurance professional, or simply interested in how invisible hazards become complex litigation, this conversation offers practical insights into one of the most technically challenging areas of personal injury law.Jump in to hear Sam's perspective on carbon monoxide litigation, proving brain injury, and the litigation strategies that shape these high-stakes cases.Thanks to Sam Cannon for joining me and sharing his experience and insights into this important—and often overlooked—area of litigation.______________________________________Thanks for listening! If you like what you hear please give us a rating. You'd be amazed at how much that helps. If you have questions for Tom or would like to participate, you can reach him at Editor@LitigationConferences.com. Ask him about creating this kind of content for your firm -- podcasts, webinars, blogs, articles, papers, and more. Tom on LinkedInEmerging Litigation Podcast on LinkedInEmerging Litigation Podcast on the HB Litigation site

June 14, 2026Episode 12442 min

HIPAA Meets Social Media Marketing with Liz Heddleston and Leah Stiegler

In this episode, I get to speak with Liz Heddleston and Leah Stiegler of Woods Rogers about a healthcare compliance issue that many organizations may be underestimating: the HIPAA risks created by modern marketing practices.Healthcare providers increasingly rely on social media, patient testimonials, online success stories, influencers, user-generated content, and even AI-assisted marketing tools to build visibility and connect with patients. But as recent enforcement activity demonstrates, these efforts can create significant HIPAA exposure when protected health information is disclosed without proper authorization.Our conversation uses the recent OCR enforcement action involving Cadia Healthcare Facilities as a starting point. OCR alleged that patient names, photographs, and treatment information were publicly shared through online success stories without valid written HIPAA authorizations. The resulting settlement serves as a reminder that positive intent, patient enthusiasm, and informal consent do not eliminate HIPAA obligations.Liz and Leah help unpack what went wrong in the Cadia matter and explain why healthcare organizations should be paying close attention. We discuss:Common misconceptions about de-identificationThe growing risks associated with social media and AI-generated contentThe compliance challenges created by marketing vendors, agencies, and influencersWhere OCR enforcement may be headed nextOne of the key themes throughout the discussion is that HIPAA compliance is no longer just an IT or cybersecurity issue. As healthcare organizations expand their digital presence, privacy compliance must become part of the content creation and marketing process itself.Whether you're a healthcare executive, compliance officer, in-house counsel, privacy professional, marketer, or outside advisor, this conversation offers practical guidance on navigating the intersection of healthcare privacy, digital marketing, and regulatory risk.Jump in to hear Liz and Leah's insights on HIPAA compliance, healthcare marketing, and the emerging risks organizations should be addressing before an enforcement action brings them into focus.______________________________________Thanks for listening! If you like what you hear please give us a rating. You'd be amazed at how much that helps. If you have questions for Tom or would like to participate, you can reach him at Editor@LitigationConferences.com. Ask him about creating this kind of content for your firm -- podcasts, webinars, blogs, articles, papers, and more. Tom on LinkedInEmerging Litigation Podcast on LinkedInEmerging Litigation Podcast on the HB Litigation site

June 5, 2026Episode 12327 min

Bridge Funding for Injured Plaintiffs with Milestone Foundation's Rachel McCarthy

In this episode, I speak with Rachel McCarthy, Executive Director of the Milestone Foundation, about a challenge that often sits quietly in the background of personal injury litigation: how injured plaintiffs manage financially while waiting for their cases to resolve.Litigation can take months or years to reach a settlement or verdict. During that time, plaintiffs may face mounting medical bills, housing expenses, transportation costs, and lost income. Financial pressure can create significant hardship and, in some cases, influence settlement decisions. Rachel explains how the Milestone Foundation was created to address this issue through a nonprofit model that provides low-interest, non-recourse advances designed to help plaintiffs cover essential living expenses while their cases proceed.We discuss how plaintiff funding differs from litigation finance, why many attorneys remain skeptical of the industry, and what makes nonprofit funding models different from traditional providers. Rachel also explains the mechanics of simple versus compounding interest, the importance of understanding funding agreements, and the questions attorneys should ask before recommending funding options to clients.In addition, we explore emerging regulatory efforts, including new state-level consumer protection measures, and discuss the broader access-to-justice implications of helping plaintiffs withstand the financial pressures that can arise during lengthy litigation.Whether you are a plaintiff attorney, litigation professional, consumer advocate, or simply interested in how economic realities intersect with the civil justice system, this conversation offers valuable insight into a topic that affects thousands of litigants every year.Jump in to hear Rachel's perspective on ethical plaintiff funding, consumer protection, and how financial support can help plaintiffs and their attorneys see cases through to a more appropriate resolution.Tom HagyHost of The Emerging Litigation Podcast______________________________________Thanks for listening! If you like what you hear please give us a rating. You'd be amazed at how much that helps. If you have questions for Tom or would like to participate, you can reach him at Editor@LitigationConferences.com. Ask him about creating this kind of content for your firm -- podcasts, webinars, blogs, articles, papers, and more. Tom on LinkedInEmerging Litigation Podcast on LinkedInEmerging Litigation Podcast on the HB Litigation site

June 3, 2026Episode 12248 min

What Has Happened to Law Firms with Mark Zauderer

In this episode, I get to speak with Mark C. Zauderer, a long-time, highly regarded legal professional, to explore the profound changes that have reshaped the legal industry over the past five decades. From the rise of mega law firms to the shift from a profession rooted in tradition and values to a business focused on profitability, Mark offers a candid and insightful look into the substantive ways law firms have changed – in both negative and positive ways. ​ We discuss how the centralization of management in large firms has diminished the voice of individual partners and altered the dynamics of decision-making. ​ Mark also sheds light on the decline of mentorship and training for young lawyers, as firms prioritize cost efficiency over professional development. ​ He shares his perspective on how these changes have impacted the quality of legal services and the trust between lawyers and their clients. Additionally, we delve into the growing influence of political and social pressures on law firms, including the challenges posed by recent executive orders targeting diversity, equity, and inclusion (DEI) initiatives. ​ Mark examines how these external forces are shaping the priorities and values of the legal profession. Whether you're a legal professional, a law student, or simply curious about the inner workings of modern law firms, this conversation offers a thought-provoking glimpse into the business of law and its implications for the future of the profession. Jump in to hear Mark’s insights and reflections on what’s next for the legal industry. ______________________________________Thanks for listening! If you like what you hear please give us a rating. You'd be amazed at how much that helps. If you have questions for Tom or would like to participate, you can reach him at Editor@LitigationConferences.com. Ask him about creating this kind of content for your firm -- podcasts, webinars, blogs, articles, papers, and more. Tom on LinkedInEmerging Litigation Podcast on LinkedInEmerging Litigation Podcast on the HB Litigation site

May 7, 2026Episode 12132 min

How Product Brands Navigate Today's Dupe Economy with Tiffany Gehrke and Alexa Spitz

In general, it is becoming hard to know what's real anymore. For example, there are so many product brand duplicates these days that people in the business save energy with a more efficient nickname. And these affectionately labeled brand "dupes" are everywhere.  The real fight used to be over copying designs. That is no longer the case. It’s about the words used to sell the copied products and the tools brand owners use to make listings disappear overnight.I’m joined by a valued and ever-eloquent repeat guest, Tiffany D. Gehrke, and ebullient first-timer Alexa Spitz, both of Marshall Gerstein, to shine light on the modern dupe economy and how trademark law, trade dress, advertising claims, and platform enforcement are converging. Tiffany and Alexa recently wrote an article for Law 360 on this subject which caught my eye, because someone told me to read it. Which I did. There, and here, our guests told me about:The gray area between “inspired by” competition and actionable infringement, including why protectability is the first hurdle and how a product can look suspiciously similar, yet avoid liability if the copied elements aren’t legally protectable. The Sol de Janeiro versus Apollo dispute over body cream packaging and why a court finding of trade dress functionality can shut the door on enforcement.The speed-to-market problem: the runway-to-dupe pipeline, rapid product cycles, and why traditional litigation can be too slow when the goal is to stop sales this season, not win damages years later. Practical brand protection strategies that match today’s reality, including layered IP portfolios (trademarks, trade dress, copyright registration, design patents, and even utility patents when appropriate) and smarter monitoring.Tactics getting the most attention online: “Brand Dupe” trademark filings like Lululemon Dupe and Aritzia Dupe, how disclaimers can affect enforcement, and why platforms often demand clean, registration-based proof for takedown notices on Amazon and social commerce channels. If you or your clients care about brand enforcement, e-commerce strategy, or emerging litigation risk, this one is built for you. Subscribe, share with a colleague, and leave a review so more listeners can find the show.Thank you, and thanks to Tiffany and Alexa for bringing their A-game!Tom HagyHost of the Emerging Litigation Podcast______________________________________Thanks for listening! If you like what you hear please give us a rating. You'd be amazed at how much that helps. If you have questions for Tom or would like to participate, you can reach him at Editor@LitigationConferences.com. Ask him about creating this kind of content for your firm -- podcasts, webinars, blogs, articles, papers, and more. Tom on LinkedInEmerging Litigation Podcast on LinkedInEmerging Litigation Podcast on the HB Litigation site

April 29, 2026Episode 12057 min

Getting Digital Evidence Right with Tim Conlon

Mobile phones, social media, cloud storage, and email sit at the center of modern fact-finding, but, to their detriment and that of their clients, attorneys often misunderstand or underuse this data. Practitioners may not realize that client-provided screenshots are often forensically weak, or that texts and social media can easily be forged or manipulated. That means lawyers and courts need to better understand authenticating, preserving, and challenging electronic evidence. In this episode, I speak with attorney and author Tim Conlon about how litigators can be more effective by gaining a deeper understanding of the space where evidence gathering and technology intersect. Through case examples—including comparisons of computer and cloud backups, comparing data saved at different points in time, analysis of missing and altered files, and tracking email migrations from official to personal accounts—Tim shows how straightforward digital forensics techniques can expose concealment, manipulation, and institutional failures. Tim is a Partner at DarrowEverett where he focuses on complex family court litigation and civil cases on behalf of children abused in the care of others, with particular emphasis on cases where electronic evidence and digital assets play a central role. He has handled matters at the forefront of litigation, from computer crime investigations in the 1980s to chairing and resolving Rhode Island’s clergy abuse cases on behalf of dozens of victims. Since the late 1980s, he has used electronic evidence to uncover hidden assets and misconduct, including forcing the division of more than $16 million in cryptocurrency shortly before the 2022 crypto crash. Tim is a frequent lecturer on electronic evidence, trial technology, and advanced litigation issues, and is widely published and quoted in national and regional media. He is the co‑author of Electronic Evidence for Family Law Attorneys (American Bar Association, 2017) and is currently completing an ABA book on cryptocurrency and digital assets, continuing his work at the intersection of technology and modern litigation. Thanks to Tim for sharing his insights! Tom Hagy | Host | Emerging Litigation Podcast______________________________________Thanks for listening! If you like what you hear please give us a rating. You'd be amazed at how much that helps. If you have questions for Tom or would like to participate, you can reach him at Editor@LitigationConferences.com. Ask him about creating this kind of content for your firm -- podcasts, webinars, blogs, articles, papers, and more. Tom on LinkedInEmerging Litigation Podcast on LinkedInEmerging Litigation Podcast on the HB Litigation site

April 23, 2026Episode 11938 min

Why a Big-Law Litigator Went Fractional with Jonathan Sablone

The conversation in this episode starts by discussing a post-pandemic practice pivot and how one litigator chose a new path, which led to establishing a new business at the intersection of law and finance. For a long time, the need for in-house counsel meant the company had crossed a certain size threshold: enough contracts, enough regulatory touchpoints, enough disputes and enough litigation to justify building a legal department. But an alternative has emerged — companies keeping their core teams lean while bringing in senior legal judgment on a part-time, flexible basis. In this episode I enjoyed catching up with Jonathan Sablone, founder of Sablone Advisory LLC, about why that model works and what it looks like when the lawyer is, in his words, a “fractional general counsel” and a litigation manager.Sablone’s résumé reads like a tour through the high-end litigation market. He spent roughly 25 years at global firms including Nixon Peabody and DLA Piper, where he held leadership roles and built practices focused on complex commercial and private funds disputes. His work has spanned the financial services world—private equity funds, hedge funds, institutional investors—and often had a cross-border component. Thanks to Jonathan for sharing his insights, which should give comfort to litigators who might be asking themselves: Is there anything else that is just as fulfilling? ______________________________________Thanks for listening! If you like what you hear please give us a rating. You'd be amazed at how much that helps. If you have questions for Tom or would like to participate, you can reach him at Editor@LitigationConferences.com. Ask him about creating this kind of content for your firm -- podcasts, webinars, blogs, articles, papers, and more. Tom on LinkedInEmerging Litigation Podcast on LinkedInEmerging Litigation Podcast on the HB Litigation site

April 5, 2026Episode 11817 min

Prediction Markets: Predicting the Legal and Policy Possibilities

This episode breaks down how prediction markets are colliding with U.S. law as event‑based trading moves from niche forecasting tools to mainstream platforms handling billions in volume. I explain what prediction markets are, why regulators are increasingly alarmed, and how an escalating federal–state fight (plus new legislative and enforcement pressure) is setting up the next wave of high‑stakes litigation. Key Topics Covered: How prediction markets work: event contracts, probability pricing, and why supporters see them as powerful information‑aggregation tools. Why regulators get uneasy when contracts shift from commodities and macro indicators to human behavior, politics, war, and public‑health crises. The “death markets” debate, including controversial contracts tied to violence and ongoing emergencies—and how backlash can reshape platform policy and regulatory narratives. Federal–state preemption fights: the CFTC/DOJ push for exclusive federal authority under the Commodity Exchange Act versus state gambling‑law enforcement. Congressional efforts to close the perceived “back door” for sports‑ and casino‑style contracts offered through CFTC‑regulated event markets. The arrival of insider‑trading and manipulation enforcement in prediction markets—and why “novel contract” does not mean “regulatory free zone.” Emerging civil‑liability theories: platform negligence, fraud and misrepresentation claims, consumer‑protection suits, and reputational risk as litigation matures. Based on a review of court filings, agency statements, news reports, and scattered commentary, I discuss why prediction markets are becoming a litigation magnet—caught between federal commodities law, state gambling regimes, and growing concerns about market integrity and moral hazard. Tom Hagy Host | Emerging Litigation Podcast Sources relied on for this episode:  CFTC, Press Release, “CFTC Sues Trio of States to Reaffirm its Exclusive Jurisdiction Over Prediction Markets” (Apr. 2, 2026). CFTC, Press Release, “CFTC Enforcement Division Issues Prediction Markets Advisory” (Feb. 25, 2026). Congressional Research Service (CRS), “Prediction Markets and Insider Trading Law” (Mar. 18, 2026). CRS, “Prediction Markets: Policy Issues for Congress” (Mar. 20, 2026). Senator Schiff press release, “Sens. Schiff, Curtis Introduce Bipartisan Legislation to Ban Sports Prediction Market Contracts” (Mar. 23, 2026)  17 C.F.R. § 40.11 (eCFR), “Review of event contracts based upon certain excluded commodities” (Apr. 2026). Federal Register, Commodity Futures Trading Commission, “Event Contracts,” 89 Fed. Reg. 48968 (June 10, 2024). ______________________________________Thanks for listening! If you like what you hear please give us a rating. You'd be amazed at how much that helps. If you have questions for Tom or would like to participate, you can reach him at Editor@LitigationConferences.com. Ask him about creating this kind of content for your firm -- podcasts, webinars, blogs, articles, papers, and more. Tom on LinkedInEmerging Litigation Podcast on LinkedInEmerging Litigation Podcast on the HB Litigation site

March 19, 2026Episode 11748 min

One Size Fits None in Modern Employment Law with Jerry Maatman

Numerous aspects of the modern workplace are evolving fast—and so are the legal risks.In this episode, I get to speak with Gerald L. Maatman, Jr.—a nationally recognized employment litigator and author with 40 years in practice. A partner with Duane Morris in Chicago, he has defended some of the largest “bet-the-company” class actions in the U.S. and is known for helping employers anticipate and prevent large-scale litigation risks.We talk about how remote work, ADA compliance, workforce reductions, arbitration, DEI policies, and AI tools are reshaping employment law.We discuss:▪️ How courts are redefining “essential functions” in the remote work era.▪️ ADA compliance and running a defensible interactive process.▪️ WARN Act risks in distributed and remote workforces.▪️ Why RIFs require careful planning and statistical review.▪️ Arbitration strategies post-Epic Systems—and where they fail.▪️ Legal boundaries for DEI programs in a shifting landscape.▪️ AI in hiring and performance management—and emerging compliance risks.From policy design to litigation exposure, the message is clear: decisions must be documented, consistent, and defensible.If you manage people, risk, or compliance, this episode offers practical guidance for navigating today’s complex employment landscape.🙏 Special thanks to Jerry for taking the time to share his insights and experience with us. His energy and enthusiasm for the subject are inspiring.To access a roadmap for navigating employment law complexities while building stronger, more productive workplaces, check out Jerry's book, 'The Employment Law Manual: A Practical Guide for Business Owners, Managers, and Executives'.Tom HagyHost of The Emerging Litigation Podcast______________________________________Thanks for listening! If you like what you hear please give us a rating. You'd be amazed at how much that helps. If you have questions for Tom or would like to participate, you can reach him at Editor@LitigationConferences.com. Ask him about creating this kind of content for your firm -- podcasts, webinars, blogs, articles, papers, and more. Tom on LinkedInEmerging Litigation Podcast on LinkedInEmerging Litigation Podcast on the HB Litigation site

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