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Arthur Aizley

Duty To Defend Limited to Theories Pled In Complaint

In most states, including Michigan, the duty to defend is not limited to the four corners of the complaint and the insurer must look behind the allegations asserted against the insured to determine whether there is a potential…more

Breach of Contract, Commercial General Liability Policies, Duty to Defend, Franchise Agreements, Insurers

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Anthony Anscombe

Presumptions of Reliance: What They Really Mean and How to Defeat Them

When Henry Stanley posed the famous query, ‘‘Dr. Livingstone, I presume?,’’ he made a deduction based on common sense and probability. His question was amusing not only by virtue of its formality, but also because of the…more

Class Action, Fraud, Litigation Strategies, Rebuttable Presumptions

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Alison Beanum

Personal Jurisdiction by Way of Agency: What Is Required?

For jurisdictional purposes, when should a foreign parent company be “held for the acts” of a resident subsidiary acting on its behalf? On March 4, 2013, Los Angeles Superior Court Judge Lee S. Edmon analyzed this issue…more

Foreign Corporations, Motions to Quash, Personal Jurisdiction, Subsidiaries

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Dirk Bernhardt

The U.S. Supreme Court Unanimously Holds that ERISA Plans’ Limitation of Actions Provisions Must be Enforced as Written – Heimeshoff v. Hartford Life Insurance Company

Today, in Heimeshoff v. Hartford Life Insurance Company, 571 U.S. __ (2013), the U.S. Supreme Court unanimously affirmed a Circuit Court ruling that dismissed an action for benefits on the ground that the plaintiff failed to…more

Disability, Disability Benefits, ERISA, Hartford Life and Accident Insurance Company, Heimeshoff v. Hartford Life & Accident Insurance Co.

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Scott Bloom

California: Right to Independent Counsel Evaporates After Insurer Withdraws Reservation of Rights

A California appellate court recently held that insurers are not obligated to provide an insured with independent counsel after the insurer withdraws the reservation of rights which generated the right to independent counsel. …more

Conflicts of Interest, Duty to Defend, Independent Counsel, Insurers, Reservation of Rights

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Robert Bohner

Federal Agencies Issue Final Rule for Implementation of Mental Health Parity Act

On October 3, 2008, Congress enacted the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Act of 2008 (MHPAEA). This law requires health insurance plans, which cover mental health or substance use disorders,…more

Affordable Care Act, Health Insurance, Healthcare, Mental Health Parity Rule, Mental Illness

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Richard Booth

Eye on Insurance - A Look Back at 2013 and Forward to 2014

In This Update: Introduction; Financial Institutions; Directors & Officers; Cyber; Professional Indemnity; Liability; Products; Property; Latin America; Reinsurance; and Litigation, Costs & Procedure. Excerpt from…more

Banks, Cybersecurity, D&O Insurance, Indemnification, Insurers

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Marc Brainich

Ninth Circuit Upholds BLM’s Environmental Assessment Allowing Expansion of the Reid Gardner Generating Station

The Ninth Circuit Court of Appeals recently upheld summary judgment in favor of the Bureau of Land Management (BLM) regarding its assessment of the potential environmental impact of a proposed expansion of the Reid Gardner…more

Bureau of Land Management, Energy, Environmental Assessments, NEPA, Power Plants

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William Brennan

Google Says "All Your Books Are Belong to Us": Federal District Court Approves Digitizing Millions of Copyrighted Books Under Fair Use Doctrine

If you know your Internet memes, you may already have rolled your eyes at the title above. If you don’t get the (dated, I admit) reference, you can, of course, just google it. That “of course” is Google’s strategic vision in…more

Copyright, Fair Use, Google, Google Books

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Jennifer Quinn Broda

Credit Crunch Digest

This issue of the Credit Crunch Digest focuses on recent developments in Libor and the Foreign Exchange market litigation; Credit Suisse’s $885 million mortgage settlement with the Federal Housing Finance Agency; Irving Picard’s…more

Banks, Bernie Madoff, Clawbacks, Dodd-Frank, FHFA

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Carol Brophy

Generic Drug Law Update -- November 2012: An Agency "Warning Letter" Does Not a Lawsuit Make: Sometimes a "Warning Letter" Is Really Just a Warning

The number of consumer class action complaints brought against product manufacturers under state consumer protection and/or false advertising law statutes continues to rise. This increase can be traced in part to some…more

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James Brown

California Supreme Court to Weigh in on Suitable Seating Issues

The California Supreme Court recently agreed to decide three significant issues relating to suitable seating requirements. These issues are of tremendous importance to California employers, and particularly those in the retail…more

Corporate Counsel, Employee Rights, Employer Liability Issues, PAGA, Retailers

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Daniel Bryer

With Tax Season Looming, Appellate Division Refuses to Find Duty to Defend Against IRS Action

In William B. Kessler Memorial Hosp., Inc. v. North River Ins. Co., 2013 WL 6036678 (N.J. Super. Nov. 15, 2013), the Superior Court of New Jersey, Appellate Division, rejected the notion that an insurer’s promise to “defend any…more

Commercial General Liability Policies, Duty to Defend, IRS

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Angela Buchanan

Economic Loss Doctrine and Negligent Misrepresentation Claims

In almost every state, the economic loss doctrine prevents claimants from pursuing tort claims that arise from solely economic injuries; instead, the doctrine requires that claimants pursue these purely economic claims through…more

Contract Disputes, Economic Loss Doctrine, Negligence, Negligent Misrepresentation, Strict Liability

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Mary Buckley

Presumptions of Reliance: What They Really Mean and How to Defeat Them

When Henry Stanley posed the famous query, ‘‘Dr. Livingstone, I presume?,’’ he made a deduction based on common sense and probability. His question was amusing not only by virtue of its formality, but also because of the…more

Class Action, Fraud, Litigation Strategies, Rebuttable Presumptions

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Bruce Celebrezze

California Fair Claims Settlement Practices Regulations

Table of Contents: Introduction; PART ONE - Summary of Fair Claims Settlement Practices Regulations; Introduction; Claims Handling Duties; Acceptance or Rejection of Claims; Settlement Offers and Payment of Accepted…more

Compliance, Disclosure Requirements, Insurers, Investigations, Nonadmitted Insurance

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Lori Chapin

New Hampshire Law Treats Skid Steer Loaders Just Like Sedans

Recently passed legislation in New Hampshire pertaining to business practices between motor vehicle manufacturers, distributors and dealers is giving heavy equipment manufacturers a cause for concern and has resulted in the…more

Heavy Equipment, Motor Vehicles

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Ryan Chapoteau

New Jersey Legislature Passes Superstorm Sandy Bill of Rights

We previously reported on the New Jersey legislature’s attempt to pass reform bills as a response to Superstorm Sandy. Although New Jersey Assembly Bill A3710 died when referred to the Financial Institutions and Insurance…more

Hurricane Sandy, Natural Disasters

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Jason Chorley

Insured Seeking Defense and Indemnity Forced to “Go Fish” After Failing to Satisfy Policy’s Condition Precedent

In Petco Animal Supplies Stores, Inc. v. Insurance Co. of North America, ___ F.3d ___, 2013 WL 3942889 (8th Cir. Aug. 1, 2013) (Minn.), Meiko Pet Corporation, a Taiwan company, purchased a products liability insurance policy…more

Condition Precedent, Denial of Benefits, Indemnification, Insureds, Insurers

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Mark Chudleigh

Cyberliability Developments in the Offshore Jursidictions

The offshore jurisdictions are catching up fast with legal issues relating to cybercrime, cyberliability, and the use and discovery of electronic documents. In the wake of the embarrassing leak in April 2013 of about 2.5…more

Cyber Attacks, Cybersecurity, Data Protection, Electronically Stored Information, Foreign Jurisdictions

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Megan Coluccio

Florida Plaintiff Lacks Standing to Enforce Other States' Consumer Protection Laws in Polyurethane Foam Insulation Litigation

The U.S. District Court for the Southern District of Florida granted partial summary judgment for Demilec (USA) LLC in a class action arising out of injuries and damages allegedly caused by the company’s various spray…more

Chemicals, Design Defects, Hazardous Substances, Standing

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Peter Condron

MTBE MDL Judge: Fresno’s Failure to Provide Evidence of Threat to Water Supply Wells Results in Dismissal

Defendants in a multidistrict MTBE product liability litigation, including Sedgwick clients Shell Oil Company, Equilon Enterprises LLC and TMR Company, recently obtained a dismissal with prejudice of MTBE product liability…more

Contaminated Properties, Evidence, Oil & Gas, Water, Water Supplies

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Harmon L. (Monty) Cooper

Obama Administration Acts on Hydraulic Fracturing Regulations With the Release of Its Revised Rules

On May 13, 2013, the Department of Interior (DOI) and its Bureau of Land Management (BLM) issued a set of revised proposed rules governing hydraulic fracturing on federal lands. The revised rules come on the heels of initially…more

Barack Obama, Bureau of Land Management, Department of the Interior, Fracking, Government Land

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Kanika Corley

NCAA’s Battle Continues in the Fight Over Who Should Pay for the Use of Student-Athlete Likenesses

Since 2009, former student-athletes have been litigating the issue of whether the apparent commodification of student-athlete likenesses in video games entitles the athletes to compensation. Defendants in these lawsuits include…more

Athletes, Electronic Arts, First Amendment, Just Compensation, NCAA

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Erin Dardis

Florida Supreme Court Strikes Down Wrongful Death Non-Economic Damages Cap for Med Mal Cases

On March 13, 2014, the Florida Supreme Court, in a 5-2 ruling, issued its long-awaited opinion following review of the Eleventh Circuit Court of Appeal’s decision in Estate of McCall v. United States, 642 F.3d 944 (11th Cir…more

Damage Caps, Equal Protection, Medical Malpractice, Non-Economic Damages, Wrongful Death

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Charles Davant

Prevailing Party Fees are Not Recoverable in Cases Arising Under Admiralty Jurisdiction

Insurers with marine risks in Florida should be wary of an evolving conflict among Florida’s lower appellate courts regarding the applicability of Florida’s Offer of Judgment Statute (ch. 768.79) to claims governed by admiralty…more

Attorney's Fees, Insurers, Jurisdiction, Prevailing Party

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Brian Davies

California Appellate Court Limits Application of Sophisticated User Doctrine

Stepping back from broad application of the sophisticated user doctrine in product liability and toxic tort litigation, the Second District of the California Court of Appeal, recently affirmed a jury’s $21 million verdict for a…more

Asbestos, Asbestos Litigation, Sophisticated User Doctrine

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Kelly Savage Day

Generic Drug Law Update -- November 2012: Expanding Liability for Ineffective Product Recalls

FDA-regulated companies may face civil liability if they fail to provide adequate notice of product recalls to their customers via information gathered in company customer databases. A group of California plaintiffs sued a…more

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Mimi Dennis

Seventh Circuit Rejects Class Action Alleging Groundwater Contamination From Refinery Because Homeowners’ Claims Lack Commonality

The U.S. Court of Appeals for the Seventh Circuit recently reversed the certification of a class of property owners who alleged an Illinois refinery leaked potentially carcinogenic chemicals into their property and water supply…more

Class Action, Commonality, Contamination, Discharge of Pollutants, Environmental Claims

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Jeffrey Dillon

Insured May Retain Rights to Insurance Proceeds for Covered Losses Predating Foreclosure

In Peacock Hospitality, Inc. v. Association Casualty Ins. Co., — S.W.3d —, 2013 WL 6188597 (Tex. App-San Antonio Nov. 13, 2013), a Texas appellate court overturned a summary judgment ruling in favor of an insurer, Association…more

Foreclosure, Insureds, Property Insurance

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David Dolendi

Second Circuit Finds that Insured’s Notice to Broker Is Not Notice to the Insurer and Precludes Coverage for Property Owner’s Damage Claim

In Pfeffer v. Harleysville Group, Inc., No. 11-CV-4513, 2012 WL 5392933 (2d Cir. Nov. 6, 2012) (applying New York law), a panel of the U.S. Court of Appeals for the Second Circuit held that the insured’s notice of a property…more

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Jonathan J. Dunn

The Rumble in the Jungle -- Letters of Credit, Bonding and Default Insurance: Hedging Bets in a Roller-Coaster Market

“The Rumble in the Jungle…” - The favored method of developing and delivering completed construction projects in the United States has long been the design-bid-build method. Under this “traditional” method generally, the…more

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Lucy Dyson

Eye on Insurance - A Look Back at 2013 and Forward to 2014

In This Update: Introduction; Financial Institutions; Directors & Officers; Cyber; Professional Indemnity; Liability; Products; Property; Latin America; Reinsurance; and Litigation, Costs & Procedure. Excerpt from…more

Banks, Cybersecurity, D&O Insurance, Indemnification, Insurers

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Martin Eide

Wisconsin Supreme Court Declares No Vacancy for Insured in Asbestos Coverage Dispute

In Phillips, et al. v. Parmelee, et al., – N.W.2d –, 2013 WL 6818145 (Wis. Dec. 27, 2013), the Supreme Court of Wisconsin affirmed trial and appellate court decisions in favor of an insurer arguing that an asbestos exclusion in…more

Asbestos, Asbestos Litigation, Exclusions, Insurers, Policy Exclusions

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Laura Evans

Citing Increasing Threats From Urbanization, the U.S. Fish and Wildlife Service Lists Two Central Texas Salamanders Pursuant to the Endangered Species Act

Recent U.S. Fish and Wildlife Service (service) actions pursuant to the Federal Endangered Species Act (ESA) have the potential to significantly affect public and private development in Central Texas, as well as any other…more

Critical Habitat, Department of Fish and Wildlife, Endangered Species, Endangered Species Act

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Afigo Okpewho Fadahunsi

The Art of Parodying a Global Mega-Brand

In February 2014, comedian Nathan Fielder orchestrated an ambitious publicity stunt – he crudely poked fun at global mega-brand Starbucks. His elaborate prank could have been a costly one. Fielder treated a long queue of fans…more

Fair Use, Infringement, Parody, Trademarks

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Joseph Falgiani

Third Circuit Expands CERCLA Contribution Rights and Narrows RCRA Injunctive Power

In Trinity Industries, Inc. v. Chicago Bridge & Iron Company, No. 12-2059, the Third Circuit Court of Appeals issued a precedential opinion interpreting contribution rights under the Comprehensive Environmental Response,…more

CERCLA, Environmental Claims, Environmental Policies, Injunctions, RCRA

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Matthew Ferguson

Credit Crunch Digest

This issue of the Credit Crunch Digest focuses on recent developments in Libor and the Foreign Exchange market litigation; Credit Suisse’s $885 million mortgage settlement with the Federal Housing Finance Agency; Irving Picard’s…more

Banks, Bernie Madoff, Clawbacks, Dodd-Frank, FHFA

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Matthew Fischer

The HIPAA Omnibus Final Rule—Data Privacy and Security Implications for Business Associates and Covered Entities

On January 17, 2013, the Office for Civil Rights (‘‘OCR’’) of the U.S. Department of Health and Human Services (‘‘HHS’’) published the HIPAA Omnibus Final Rule (‘‘Final Rule’’) which OCR has trumpeted as carrying ‘‘the most…more

Business Associates, Covered Entities, Data Breach, Data Protection, HHS

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Kyle Fletcher

Is Your Compliance Department Doing Enough? Minimizing Potential Legal Consequences for an Ineffective Compliance Program

For many years, the Food and Drug Administration (FDA) has been charged with protecting public health by ensuring the safety and efficacy of foods, drugs and cosmetics. To do so, the FDA has ensured the promulgation of…more

Chief Compliance Officers, Compliance, Corporate Counsel, Enforcement, FDA

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Kathleen Flynn

Top Priorities for BigLaw in 2014? Here's the CMO Perspective...

What will be the top priority for law firms in 2014? The answer depends on whom you ask, of course – and, for our Firm Leadership series, we put the question to chief marketing officers at law firms publishing on JD Supra..…more

Big Law, Client Services, Firm Leadership, Legal Perspectives

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Chen Foley

Cyberliability Developments in the Offshore Jursidictions

The offshore jurisdictions are catching up fast with legal issues relating to cybercrime, cyberliability, and the use and discovery of electronic documents. In the wake of the embarrassing leak in April 2013 of about 2.5…more

Cyber Attacks, Cybersecurity, Data Protection, Electronically Stored Information, Foreign Jurisdictions

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Michael Fox

The Use of Forensic Psychiatry in Catastrophic Injury and Multi-Party Litigation

Catastrophic accidents often lead to claims for severe emotional distress including allegations of post-traumatic stress disorder (‘‘PTSD’’). Similarly, allegations of acute neuropsychological disorders and fear of cancer can…more

Bodily Injury, Forensic Examination, Multi-Party Litigation, PTSD

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Sherylle Francis

The State and Impact of Florida’s Economic Loss Rule

In March of this year, the Florida Supreme Court departed from established precedent and limited the application of the economic loss rule to product liability cases. The court explained that this was necessary given the rule’s…more

Breach of Contract, Economic Loss Doctrine, Fraudulent Inducement, Negligent Misrepresentation, Privity of Contract

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Matthew Francois

CEQA Reform: In Like a Lion, Out Like a Lamb

The past legislative session held the prospect for significant reform of the California Environmental Quality Act (CEQA). After the dust settled though, the only proposal able to survive the legislative gauntlet was one…more

CEQA, CEQA Reform, Environmental Policies, Legislative Agendas

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Timothy Freeman

The Sixth Circuit Clarifies Admissibility of the CPSC’s Failure to Take Regulatory Action

The admissibility of the Consumer Product Safety Commission’s (CPSC) failure to take action to regulate products has been litigated in many courts throughout the United States, largely due to an ambiguous provision in the…more

Admissibility, CPSC

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Travis Gamble

Lawsuits Involving Incomplete Vehicles: Liability Ramifications for All Participants in the Vehicle Component Part Manufacturing Process

Many vehicle manufacturers now produce bare, multipurpose vehicle chassis that can be converted into a variety of uses by adding certain accessories. Oftentimes in product liability lawsuits involving these ever-popular…more

Aftermarket Purchases, Automotive Industry, Ford Motor, Motor Vehicles

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Melissa Gardner

Blood, Money & the Duty to Defend

In Peerless Indemnity Insurance Company v. Phillips, No. H-12-1145 (S.D. Tex. Apr. 17, 2013), the United States District Court for the Southern District of Texas granted in part and denied in part the insurer’s motion for…more

Conversion, Defamation, Duty to Defend, Indemnification, Insurers

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Richard Geddes

State of Washington v. James River Insurance Company – What Impact on Bermuda Insurers?

The short answer is – none. State of Washington, Dept. of Transportation v. James River Insurance Company, – P.3d –, 2013 WL 258877 (Wash. January 24, 2013), a January 2013 decision of the Washington State Supreme Court,…more

Anti-Suit Injunctions, Arbitration, Arbitration Agreements, Contract Disputes, Insurance Contracts

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Carol Gerner

It’s All in the Delivery – Proper Renewal Saves Millions

In Windmill Nursing Pavilion Ltd. v. Cincinnati Ins. Co., (No. 1-12-2431), the Illinois Court of Appeals concluded that under Ohio law, Cincinnati Insurance Company (“Cincinnati”) provided sufficient notice to its insured,…more

TCPA, Unitherm, Unsolicited Faxes

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Eryk Gettell

Eleventh Circuit Recognizes Important Exception to the Eight Corners Rule

Florida courts generally adhere to the Eight Corners Rule when determining whether an insurer has a duty to defend its insured. Under this rule, the duty to defend determination is made by looking only at the terms within the…more

Carbon Monixide Exposure, Hazardous Substances, Negligence, Parol Evidence, Strict Liability

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Alan Glen

Citing Increasing Threats From Urbanization, the U.S. Fish and Wildlife Service Lists Two Central Texas Salamanders Pursuant to the Endangered Species Act

Recent U.S. Fish and Wildlife Service (service) actions pursuant to the Federal Endangered Species Act (ESA) have the potential to significantly affect public and private development in Central Texas, as well as any other…more

Critical Habitat, Department of Fish and Wildlife, Endangered Species, Endangered Species Act

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Frederic Grannis

Alabama Supreme Court’s Brown Ruling Provides Guidance to Manufacturers on Safeguarding Proprietary Processes

The Alabama Supreme Court’s recent decision in Brown v. Michelin North America, Inc., (Case No. CV-11-902482), provides useful guidance to manufacturers on the precautions that should be taken to safeguard proprietary…more

Disclosure Requirements, Discovery, Manufacturers

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David Grycz

California Appellate Court: No Liability for Bad Faith Failure to Settle Where Claimant Fails to Make a Settlement Demand on Insurer

In Reid v. Mercury Insurance Co., __ Cal. Rptr. 3d ___, 2013 WL 5517979 (Cal. Ct. App. Oct. 7, 2013), the California Court of Appeals held that an insurer cannot be found liable for bad faith failure to settle within the policy…more

Auto Insurance, Bad Faith, Duty to Settle, Settlement

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Dirk Haarhoff

Fracking Decision in New York Delayed Once Again

In late December 2012, we reported that the New York Department of Environmental Conservation (DEC) was in the process of preparing an environmental impact statement (EIS) regarding well permits for extracting oil and natural…more

Environmental Impact Report, Fracking, Oil & Gas

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Earl L. Hagström

Los Angeles City Council Votes to Ban Hydraulic Fracturing: Home Rule or Preemption

Following a string of bans enacted by municipalities in New York, Texas, Hawaii, New Mexico (a countywide ban was enacted), Vermont and New Jersey, the Los Angeles City Council approved the adoption of a local ordinance banning…more

Fracking, Fracking Bans, Home Rule States, Oil & Gas, Preemption

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Tristan Hall

Eye on Insurance - A Look Back at 2013 and Forward to 2014

In This Update: Introduction; Financial Institutions; Directors & Officers; Cyber; Professional Indemnity; Liability; Products; Property; Latin America; Reinsurance; and Litigation, Costs & Procedure. Excerpt from…more

Banks, Cybersecurity, D&O Insurance, Indemnification, Insurers

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Eliot Harris

Ninth Circuit En Banc Upholds Prior Ruling Vacating $10 Million Asbestos Verdict Over Failure to Conduct Daubert Hearing

The Ninth Circuit Court of Appeals en banc has affirmed a prior ruling vacating a $10 million jury verdict in an asbestos personal injury action, holding that the Washington federal district court abused its discretion by not…more

Asbestos, Daubert Hearing, Mesothelioma

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Michael Healy

Recent Developments in Medical Monitoring Case Law (2013-2014)

Over the last 30 years, state and federal courts have grappled with how best to address claims filed by plaintiffs who do not currently suffer from an actual injury or illness, but rather seek damages for their risk of…more

Healthcare, Medical Devices, Medical Liability, Medical Monitoring

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Lisa M. Henderson

S.B. 112 – Proposed Property Insurance Reform Bill in Texas

A Texas State Senator has introduced legislation that would require residential property insurance carriers to include on the declarations page a dollar amount and explanation for every deductible…more

Deductibles, Property Insurance

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James Holmes

Green Day Leaves Street Artists Screaming

Gone are the days where live music performances consist solely of flashing lights, backup dancers and pyrotechnics. Today’s artists utilize massive video screens to coordinate descriptive images with their music. The…more

Copyright, Fair Use, Infringement, Music Industry, Trademarks

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Marina Hoppas

Judicial Notice of FDA Website Documents Can Be a Powerful Lever in a Medical Device Manufacturer’s Motion to Dismiss

A motion to dismiss can be a powerful tool in the hands of medical device companies to eliminate cases that should be dismissed from the outset on preemption grounds, before engaging in costly discovery. Oftentimes, however,…more

FDA, Judicial Notice, Medical Devices, Motion to Dismiss, Websites

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Andrew Houghton

Drone Privacy Claims on the Horizon

The headlines these days have focused on revelations that the government has conducted telecommunication dragnets from domestic networks on a regular basis. The issue has garnered attention because of sensitivity to…more

FAA, Google, Patriot Act, Right to Privacy, Subpoenas

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Kimberly Jackanich

Federal Court Upholds California County’s Safe Drug Disposal Ordinance

On August 28, 2013, the U.S. District Court for the Northern District of California issued an order upholding Alameda County's Safe Drug Disposal Ordinance as constitutional. The ordinance, passed in July 2012 by the Alameda…more

Commerce Clause, DEA, Drug Take-Back Programs, Local Ordinance, Out-of-State Companies

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Kirk Jenkins

Illinois Supreme Court Agrees to Decide Complex Landfill Dispute

Can the Illinois state courts order mandatory cleanups of older landfills? The Illinois Supreme Court agreed to decide that issue late last month, allowing a petition for leave to appeal in People ex rel. Madigan v. J. T…more

Landfill Waste, Landfills

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Luke Johnson

Eye on Insurance - A Look Back at 2013 and Forward to 2014

In This Update: Introduction; Financial Institutions; Directors & Officers; Cyber; Professional Indemnity; Liability; Products; Property; Latin America; Reinsurance; and Litigation, Costs & Procedure. Excerpt from…more

Banks, Cybersecurity, D&O Insurance, Indemnification, Insurers

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Jason Joyal

Be Kind, Rewind: Ninth Circuit Uses Betamax-Era Precedent to Approve Dish Network’s Ad-Skipping Technology

It began initially with TIVO, and has since expanded to major cable and satellite providers such as DirecTV and Dish Network (Dish). Television viewers are now able to digitally record multiple programs with the press of a…more

Advertising, Cable Television Providers, Television Broadcast Stations, Television Commercials, Television Service Providers

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Diana Karnes

Something Borrowed, Something New, But IIGF Still Can’t Collect From Borrowing Employer’s Workers’ Comp Carrier

In Illinois Ins. Guaranty Fund v. Liberty Mutual Ins. Co., 2013 IL App (1st) 123345 (Nov. 12, 2013) the Illinois First District appellate court held that a borrowing employer’s workers’ compensation carrier is not required to…more

Reimbursements, Temporary Employees, Workplace Injury

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Gail Kavanagh

What is an Exaction?

Construction of the 485-mile-long southern portion of the TransCanada Keystone Pipeline system (known as the Gulf Coast Project) is scheduled to be completed and operational by the end of 2013, but it leaves a legacy of…more

Energy, Exactions, Keystone XL Pipeline, Natural Gas, Pipelines

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Shari Keiser

District of Columbia District Court Grants Summary Judgment to Honeywell on Motion to Reconsider

The U.S. District Court, District of Columbia in Wannall v. Honeywell International, Inc., Civil Action No. 10-351 (BAH), recently granted Honeywell International’s motion to reconsider the previous denial of its motion for…more

Asbestos, Asbestos Litigation, Honeywell International, Motion To Reconsider, Proximate Cause

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Mark Kendall

Eye on Insurance - A Look Back at 2013 and Forward to 2014

In This Update: Introduction; Financial Institutions; Directors & Officers; Cyber; Professional Indemnity; Liability; Products; Property; Latin America; Reinsurance; and Litigation, Costs & Procedure. Excerpt from…more

Banks, Cybersecurity, D&O Insurance, Indemnification, Insurers

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David Kent

Six Regional Drone Research Test Sites Chosen

The integration of unmanned aircraft systems (UAS) – popularly known as “drones” – into the national airspace took a major step forward last week with the Federal Aviation Administration’s (FAA) selection of six regional…more

Drones, FAA, Unmanned Aircraft Systems

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Timothy Kevane

History in the Making as Journalism, Law and Politics Converge for Federal Reporter's Shield

In September of this year, the U.S. Senate began debate on a federal reporter’s privilege. Free Flow of Information Act of 2013, S. 987, 113th Cong. §§ 2-5 (2013). The bipartisan bill to recognize such a privilege was…more

Confidential Sources, Espionage Act, First Amendment, National Security, Proposed Legislation

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Julie Kim

SDNY Refuses to Find Exceptions to the Firestone Deference Rule

In Wedge v. Shawmut Design & Construction Group Long Term Disability Ins. Plan, No. 12 Civ. 5645 (KPF) (S.D.N.Y. Sept. 10, 2013), the court declined to recognize an exception to the rule established in Firestone Tire & Rubber…more

Disability, Disability Benefits, Employee Benefits, ERISA, Health and Welfare Plans

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Soo Kim

Careful What You Say – No Preemption for Statements Made in Operating Room

Makers of medical devices marketed pursuant to the Food and Drug Administration’s (FDA) premarket approval process are generally relieved from defending state law failure to warn claims by operation of express preemption, a…more

FDA, Medical Devices, Preemption, Premarket Approval Applications

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Michael Klein

Absent a Contract With the Provider, HMOs Are Not Liable for Unpaid Services

On April 19, 2013, the Texas Supreme Court handed down its opinion in Christus Health Gulf Coast, et al. v. Aetna, Inc. et al. The court’s ruling put an end to the so-called “double pay” theory of liability by downstream medical…more

Healthcare, HMOs, Liability, Overpayment

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Marilyn Klinger

California Fair Claims Settlement Practices Regulations

Table of Contents: Introduction; PART ONE - Summary of Fair Claims Settlement Practices Regulations; Introduction; Claims Handling Duties; Acceptance or Rejection of Claims; Settlement Offers and Payment of Accepted…more

Compliance, Disclosure Requirements, Insurers, Investigations, Nonadmitted Insurance

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Marc Koonin

California Supreme Court to Weigh in on Suitable Seating Issues

The California Supreme Court recently agreed to decide three significant issues relating to suitable seating requirements. These issues are of tremendous importance to California employers, and particularly those in the retail…more

Corporate Counsel, Employee Rights, Employer Liability Issues, PAGA, Retailers

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Gregory Lahr

Los Angeles City Council Votes to Ban Hydraulic Fracturing: Home Rule or Preemption

Following a string of bans enacted by municipalities in New York, Texas, Hawaii, New Mexico (a countywide ban was enacted), Vermont and New Jersey, the Los Angeles City Council approved the adoption of a local ordinance banning…more

Fracking, Fracking Bans, Home Rule States, Oil & Gas, Preemption

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Joseph Larsen

Be Careful With That Axe -- Texas Breaks New Ground in Defamation Turned Court Records Case

Beware the law of unintended consequences. The Texas high court has just denied review of a court of appeals opinion in a case that began as a defamation action brought by a Texas state court judge against a Dallas-area lawyer…more

Defamation, Depositions, Judges, Judicial Records, Legal Ethics

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Gilbert Lee

Net Neutrality Revisited in the Wake of the Court of Appeals' Decision in Verizon v. FCC

On January 14, 2014, the latest chapter of the net neutrality controversy closed when the U.S. Court of Appeals for the District of Columbia decided that the Federal Communications Commission (FCC) was statutorily authorized…more

FCC, Internet, Net Neutrality, Verizon

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Jonathan Lee

Report of Potential Carcinogen in Soda Coloring Paves Way for High Stakes Prop. 65 Suits

Plaintiffs’ law firms are seeing green in the caramel coloring added to brand-name soft drinks. A recent Consumer Reports investigation found elevated levels of a potential carcinogen in beverages produced by two global…more

Chemicals, Food Safety, Hazardous Substances, Proposition 65

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Serena Lee

Insurer “Waives” Goodbye to Coverage Defense in Illinois

In Pekin Ins. Co. v. Skender Constr. Co., 2013 IL App. (1st) 123532-U (Ill. App. Ct. Dec. 27, 2013) (Unpublished), the Illinois Appellate Court recently affirmed a trial court’s finding that an insurer waived a coverage defense…more

Additional Insured, Duty to Defend, Insureds, Summary Judgment, Waivers

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Ekaterina Levy

A Reservation of Rights Regarding the Pollution Exclusion and the Timing of Damages Does Not Trigger An Insured’s Right to Independent Counsel in California

In Federal Ins. Co. v. MBL, Inc., 2013 WL 4506149 (Cal. Ct. App. Aug. 26, 2013), the California Court of Appeal continued the judicial trend of restricting the insured’s right to insurer-paid independent counsel. The court held…more

Independent Counsel, Insureds, Pollution Exclusion, Reservation of Rights

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Ting Low

Eye on Insurance - A Look Back at 2013 and Forward to 2014

In This Update: Introduction; Financial Institutions; Directors & Officers; Cyber; Professional Indemnity; Liability; Products; Property; Latin America; Reinsurance; and Litigation, Costs & Procedure. Excerpt from…more

Banks, Cybersecurity, D&O Insurance, Indemnification, Insurers

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Aaron Mandel

West Virginia Reverses Course, Concludes that Faulty Workmanship is Covered Under a CGL Policy

Last week, the Supreme Court of Appeals of West Virginia issued an opinion holding that faulty construction work qualifies as an “occurrence” under a CGL policy if it causes “bodily injury” or “property damage.” Cherrington v…more

Commercial General Liability Policies, Faulty Workmanship, Occurrence

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Hall Marston

California Supreme Court Rejects Erosion of One Final Judgment Rule: "Final Means Final"

On October 3, 2013, the California Supreme Court handed down its opinion in Kurwa v. Kislinger, S201619, confirming that under settled California practice, as codified in Code of Civil Procedure section 904.1(a), to be…more

Appeals, Defamation, Fiduciary Duty, HMOs, Writ of Mandate

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Dawn McCord

Generic Drug Preemption Expanded by Supreme Court's Bartlett Decision

Not surprisingly, the Supreme Court reaffirmed the broad preemptive scope of PLIVA, Inc. v. Mensing, 131 S. Ct. 2567 (2011), and further extended the reach of impossibility preemption to design defect claims, in issuing its…more

Design Defects, FDA, Generic Drugs, Mutual Pharmaceuticals v Bartlett, Preemption

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Todd McCormick

Purple Haze Lifted by Ninth Circuit Regarding Jimi Hendrix’s Post-Mortem Publicity Rights

In Experience Hendrix L.L.C. v. HendrixLicensing.com LTD, Nos. 11–35858, 11–35872 (9th Cir. Jan. 29, 2014), the Ninth Circuit Court of Appeals upheld the constitutionality of Washington State’s Personality Rights Act (WPRA),…more

Copyright, Music, Right of Publicity

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Michael McNaughton

Despite Limited Jurisdiction, Texas Federal Court Keeps the Class in Class Action

The forum selection battle between insurance carriers and policyholders over whether litigation should be conducted in state or federal courts remains as contentious as ever. Litigants on both sides know forum shopping affects…more

Class Action, Forum Shopping, Insureds, Jurisdiction, Removal

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Jason McNerlin

Eye on Insurance - A Look Back at 2013 and Forward to 2014

In This Update: Introduction; Financial Institutions; Directors & Officers; Cyber; Professional Indemnity; Liability; Products; Property; Latin America; Reinsurance; and Litigation, Costs & Procedure. Excerpt from…more

Banks, Cybersecurity, D&O Insurance, Indemnification, Insurers

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David Mesa

Manufacturers Selling Products in Qualifying Containers Must Comply With California’s Revised Plastic Container Regulations

Are you a manufacturer of products sold in plastic containers such as tools, consumer electronics, dish soap or soft drinks? Are you a company that rebrands these types of products for sale in your retail stores? Are you a…more

California Rigid Plastic Packaging Container Act, Compliance, Environmental Policies, Manufacturers

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Kathryn Metz

Insurer’s “Premonitions” Accurate in Claim Involving Psychic Group: No Coverage for Second Suit Alleging Same Wrongful Acts as Suit Filed Prior to Policy Inception

In Zodiac Group, Inc. v. Axis Surplus Ins. Co., _____ Fed. Appx. _____, 2013 WL 5718439 (11th Cir. (Fla.) Oct. 22, 2013), the United States Court of Appeals for the Eleventh Circuit considered whether facts alleged in an…more

Denial of Benefits, Prior Wrongful Acts, Professional Liability

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Robert Meyers

Washington Insurance Law - 2013 Year in Review

2013 was a particularly eventful year in Washington insurance law. This paper summarizes the holdings of several notable Washington insurance decisions that were filed in 2013. Bad Faith - Attorney-Client Privilege…more

Arbitration, Attorney-Client Privilege, Bad Faith, Binding Arbitration, Duty to Defend

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Nick Miles

Cyberliability Developments in the Offshore Jursidictions

The offshore jurisdictions are catching up fast with legal issues relating to cybercrime, cyberliability, and the use and discovery of electronic documents. In the wake of the embarrassing leak in April 2013 of about 2.5…more

Cyber Attacks, Cybersecurity, Data Protection, Electronically Stored Information, Foreign Jurisdictions

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Andrew Milne

Eye on Insurance - A Look Back at 2013 and Forward to 2014

In This Update: Introduction; Financial Institutions; Directors & Officers; Cyber; Professional Indemnity; Liability; Products; Property; Latin America; Reinsurance; and Litigation, Costs & Procedure. Excerpt from…more

Banks, Cybersecurity, D&O Insurance, Indemnification, Insurers

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Bradley A. Monk

Victory on Appeal for Georgia-Pacific: No Duty to Warn of Dangers of Secondhand Exposure to Asbestos Until 1972

In Georgia Pacific LLC v. Farrar, No. 102 Sept. Term 2012, 2013 WL 3456573 (Md. July 8, 2013), Maryland’s highest court established that manufacturers of asbestos-containing products cannot be liable to household members for…more

Asbestos, Asbestos Litigation, Duty of Care, Duty to Warn, Hazardous Substances

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Karen Morrish

Eye on Insurance - A Look Back at 2013 and Forward to 2014

In This Update: Introduction; Financial Institutions; Directors & Officers; Cyber; Professional Indemnity; Liability; Products; Property; Latin America; Reinsurance; and Litigation, Costs & Procedure. Excerpt from…more

Banks, Cybersecurity, D&O Insurance, Indemnification, Insurers

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Benjamin Motal

When Eight Corners Is Just Not Enough: Fifth Circuit Offers Latest Interpretation of Exception to the Eight Corners Rule

On January 8, 2014, the Fifth Circuit announced its latest guidance on an issue of great importance to insurance carriers doing business in Texas. In Star-Tex Resources, L.L.C. v. Granite State Ins. Co., 2014 WL 60192 (5th Cir…more

Bodily Injury, Car Accident, Commercial General Liability Policies, Duty to Defend, Pleadings

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David Murphy

Eye on Insurance - A Look Back at 2013 and Forward to 2014

In This Update: Introduction; Financial Institutions; Directors & Officers; Cyber; Professional Indemnity; Liability; Products; Property; Latin America; Reinsurance; and Litigation, Costs & Procedure. Excerpt from…more

Banks, Cybersecurity, D&O Insurance, Indemnification, Insurers

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John Na

Insurer’s Defense Obligation Limited To Suits Seeking Damages

Recently, the California Court of Appeal held that, under California law, an insurer is not obligated to defend a lawsuit that does not seek monetary damages…more

Arbitration, Breach of Contract, Damages, Duty to Defend, Insurers

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Christopher Norton

Upholding CAFA’S Intended Purpose

In February 2005, Congress enacted the Class Action Fairness Act of 2005 (CAFA), with the primary intent of modifying and liberalizing the rules concerning federal diversity jurisdiction as they apply to class actions, enabling…more

CAFA, Class Action, Class Certification, Damages, Diversity Jurisdiction

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Arameh Zargham O'Boyle

Medical Device Law Update - December 2012: FDA and Industry Form “Consortium” to Improve Device Approval Process

In response to wide criticism of the Food and Drug Administration’s (FDA) current review process, leaders of industry, academia and government have joined forces to create the Medical Device Innovation Consortium (MDIC), an…more

FDA, MDIC, Medical Devices

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Katelin O’Rourke Gorman

New York’s Highest Court Rappels Down From Possible Major Shift in Insurance Law in K2 Decision

Today, the New York Court of Appeals elected to adhere to precedent in holding that an insurer is indeed allowed to rely on its policy exclusions when faced with a request for indemnity, even if the insurer was not correct in…more

Breach of Duty, Duty to Defend, Indemnification, K2 Investment Group

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Thomas R. Orofino

Credit Crunch Digest

This issue of the Credit Crunch Digest focuses on recent developments in Libor and the Foreign Exchange market litigation; Credit Suisse’s $885 million mortgage settlement with the Federal Housing Finance Agency; Irving Picard’s…more

Banks, Bernie Madoff, Clawbacks, Dodd-Frank, FHFA

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Victoria Paal

Koontz Expands Paths for Developers to Challenge Permitting Decisions

A recent 5-to-4 U.S. Supreme Court decision in Koontz v. St. Johns River Water Management District, 133 S.Ct. 2586 (2013), broadens property owners’ rights to challenge land use decisions on the grounds of inverse condemnation…more

Condemnation, Koontz v St John's River Water Management, Land Developers, Land Titles, Rough Proportionality Test

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Luke Panzar

Washington Insurers May Be Liable for Agent’s Unlawful Solicitation

In Chicago Title Insurance Co. v. Washington State Office of the Insurance Commissioner, ___ P.3d ___, 2013 WL 3946060 (Wash. Aug. 1, 2013), the Supreme Court of Washington held that Chicago Title Insurance Company was liable…more

Employer Liability Issues, Insurers, Land Titles, Liability, Non-Solicitation Agreements

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Sean Patterson

California Appellate Court Finds Employer Has No Duty to Future Child for Parent-Employee’s Preconception Exposure to Toxins

The preconception tort is essentially any tortious conduct occurring prior to a child’s conception that results in harm to the child. This type of claim, which has been recognized in California since 1982, can cover all types…more

Birth Defects, Duty of Care, Toxic Exposure

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Daniel Pickett

5th Circuit Says the Issue is Liability, Not Damages

In Carl E. Woodward, L.L.C. v. Acceptance Indem. Ins. Co., 2014 WL 535726, No. 12–60561 (5th Cir. Feb. 11, 2014) the 5th Circuit Court of Appeals held that, when analyzing coverage under an additional insured endorsement that…more

Commercial General Liability Policies, Damages, General Contractors, Professional Liability

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Mike F. Pipkin

Texas Department of Insurance Takes Narrow Interpretation of Code Concerning Construction Payment Bond Claims

Chapter 3503 of the Texas Insurance Code (the Insurance Code) governs the obligations of sureties in handling of claims under construction payment bonds. Recently, the Texas Department of Insurance (TDI) communicated its…more

Bonds, Insurers, Statutory Interpretation, Surety & Fidelity

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F. Paul Pittman

With Nowhere to Hide, Couch Potatoes Offer Opportunity and Peril for Content Providers

The emerging home entertainment market is rife with both opportunity and peril for media and entertainment content providers. Home entertainment is increasingly provided through “Smart” devices such as Microsoft Xbox and Sony…more

Internet, Personally Identifiable Information, Video Games

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Alex Potente

California Senate Introduces Bills to Expand Abuse Claims

For our readers who are involved in insuring public and private entities against sexual abuse claims, you may be interested to know that legislation to reform the civil and criminal statute of limitations for childhood sexual…more

Child Abuse, Sexual Abuse

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Alex Potts

Cyberliability Developments in the Offshore Jursidictions

The offshore jurisdictions are catching up fast with legal issues relating to cybercrime, cyberliability, and the use and discovery of electronic documents. In the wake of the embarrassing leak in April 2013 of about 2.5…more

Cyber Attacks, Cybersecurity, Data Protection, Electronically Stored Information, Foreign Jurisdictions

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Kayla Pragid

Manufacturers May Be Exempt From Liability Under the Condominium Act

In a recent decision, the Fourth District Court of Appeal of Florida strictly construed the terminology of the Condominium Act in favor of material manufacturers. See Port Marina Condo. Assoc., Inc. v. Roof Svcs., Inc., -- So…more

Condominium Act, Condominiums, Contractors, Exemptions, Manufacturers

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Dennis Raglin

More Changes to Prop. 65 in 2014?

Though his broader range of reforms did not make it out of the Legislature last year, California Gov. Jerry Brown is attempting to effect some reform of Proposition 65 (Prop. 65) through administrative action. The Office of…more

Jerry Brown, OEHHA, Proposition 65

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Neil Rambin

Straight Talking in Texas: The Contractual Liability Exclusion Means What It Says and Says What It Means

According to prominent insurance commentator, Randy Maniloff, Ewing Construction Co., Inc. v. Amerisure Insurance Co. was “probably the most closely watched coverage case in the country” in 2013. This is no longer, as the Texas…more

Limitation of Liability Clause

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Matthew A. Reed

A Brief Overview of the Case Law Regarding "Failure to Train" Claims - And Its Implications for Medical Device Manufacturers

In recent years, causes of action for “failure to train,” or allegations predicated on a duty to train, have been on the rise in cases against medical device manufacturers. Historically, however, such claims and allegations have…more

Failure To Warn, FDCA, Healthcare, Medical Devices, Training

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Rachel Reynolds

Class Certification Denied in Moldy Baby Seat Lawsuit

A California federal judge recently denied a motion to certify a nationwide class of consumers who acquired Fisher-Price Rock ‘N Play Sleeper infant recliner seats, finding that the plaintiffs failed to demonstrate that the…more

Class Certification, Manufacturing Defects, Predominance Requirement, Standing

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Dina Richman

To Terminate or Not to Terminate: Provider Exclusion Laws and Why They Matter

A robust, quality network of providers is essential to the operation of any managed care organization (MCO). Credentialing, quality of care, or other legitimate business concerns frequently require an MCO to evaluate removal of…more

Affordable Care Act, Excluded Providers, Healthcare, Healthcare Professionals, MCOs

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Paul Riehle

The Current Intersection of Antitrust and Managed Care

This article provides a summary of key healthcare antitrust developments in 2013, highlighted by two important Supreme Court decisions: - In FTC v. Phoebe Putney Health System, Inc.,133 S.Ct. 1003 (2013), the Court…more

ACOs, Acquisitions, Actavis Inc., FTC, FTC v Actavis

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Valerie Rojas

California Supreme Court Holds that Insurers May Be Held Liable for Violations of California’s Unfair Competition Law

In Zhang v. Superior Court, __ Cal.3d __ (2013), the California Supreme Court held that Moradi-Shalal v. Fireman’s Fund Ins. Companies (1988) 46 Cal.3d 287 does not preclude insureds from maintaining a claim for violations of…more

Insurers, Liability, Unfair Competition

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Dennis Rolstad

California Allows Contractors Formed As LLCs To Access Surplus Lines Carriers

On August 16, 2013, California Governor Jerry Brown signed AB1236, a bill that allows contractors organized as limited liability companies to obtain liability insurance from non-admitted surplus lines carriers. California…more

Contractors, Liability Insurance

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Sondra Rosebrock

Timely Reporting Crucial in Claims-Made-And-Reported Policies

In GS2 Engineering & Environmental Consultants, Inc. v. Zurich American Insurance Company, 2013 WL 3457098 (D.S.C. July 9, 2013), the U.S. District Court for the District of South Carolina, Columbia Division, found that renewal…more

Claims Made Policy, Reporting Requirements

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Sheryl Rosenberg

The State of Virginia and the D.C. District Court Raise Plaintiff’s Burden of Proof on Causation in Multiple-Exposure Asbestos Cases

Judge Beryl A. Howell of the District of Columbia District Court issued a trial court opinion in May 2013 that, if followed by other circuit or state courts, could substantially impact the threshold for causation in…more

Asbestos, Asbestos Litigation, Burden of Proof, Causation, Mesothelioma

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Caitlin Ross

Price Advertisements Matter: Ninth Circuit Finds False Sale Prices Give Plaintiffs UCL Standing

Following the California Supreme Court’s lead in Kwikset that “labels matter,” the Ninth Circuit Court of Appeals recently held that “price advertisements matter.” In Hinojos v. Kohl’s, the Ninth Circuit reversed the district…more

Advertising, Class Action, Kohls, Misrepresentation, Purchase Price

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Hilary Rowen

Top Regulatory Issues for the Insurance Industry in 2014?

The answer depends on whom you ask, of course - and, as Hilary Rowen, partner at law firm Sedgwick LLP, noted: it can also differ by insurance industry sector. Here’s what we heard back…more

Affordable Care Act, Casualty Insurance, Construction Defects, Cross-Border, Insurance Regulations

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Eric C. Scheiner

Credit Crunch Digest

This issue of the Credit Crunch Digest focuses on recent developments in Libor and the Foreign Exchange market litigation; Credit Suisse’s $885 million mortgage settlement with the Federal Housing Finance Agency; Irving Picard’s…more

Banks, Bernie Madoff, Clawbacks, Dodd-Frank, FHFA

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John T. Seybert

Take It to the Limit – The High Court Reviews When ERISA Plan Limitation of Actions Period Begins

It is well-settled that parties can contract for the length of a limitation of actions period. It also is well-settled that parties may contract for a limitation of actions period to start before the time to commence an action…more

Contract Drafting, ERISA, Heimeshoff v. Hartford Life & Accident Insurance Co., Limitation Periods, Proof of Loss

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Stephanie Sheridan

Price Advertisements Matter: Ninth Circuit Finds False Sale Prices Give Plaintiffs UCL Standing

Following the California Supreme Court’s lead in Kwikset that “labels matter,” the Ninth Circuit Court of Appeals recently held that “price advertisements matter.” In Hinojos v. Kohl’s, the Ninth Circuit reversed the district…more

Advertising, Class Action, Kohls, Misrepresentation, Purchase Price

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Benjamin Shiftan

Interrupted by Sandy

In Johnson Gallagher Magliery, LLC v. The Charter Oak Fire Insurance Company, 2014 WL 1041831 (S.D.N.Y. Mar. 18, 2014), the United States District Court for the Southern District of New York, granting a motion for partial…more

Business Interruption, Hurricane Sandy, Natural Disasters, Severe Weather

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Anna Shimko

CEQA Reform: Striking While the Iron Is hot

With Gov. Jerry Brown characterizing reform of the California Environmental Quality Act (CEQA) as “the Lord’s work,” and newspapers around the state calling for an overhaul to the 40-plus year old law, members of the Legislature…more

CEQA, Proposed Legislation

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Stevi Siber-Sanderowitz (Raab)

What’s in Store for New Jersey in 2014? Super Bowl XLVIII and Legislation Addressing the “Occurrence” Issue in the Construction Defect Context

The New Year might bring more to New Jersey than just the Super Bowl. Indeed, on November 25, 2013, the legislature introduced a bill before the New Jersey State Assembly, which, if enacted, would require general liability…more

Commercial General Liability Policies, Construction Defects, Construction Disputes, Faulty Workmanship, Legislative Agendas

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Sean Simpson

Tenth Circuit Applies Broad Interpretation Of “Interrelated Wrongful Acts” Under New York Law

In Brecek & Young Advisors, Inc. v. Lloyds of London Syndicate 2003, ___F.3d ___, 2013 WL 1943338 (10th Cir. (Kan.) May 13, 2013), the United States Court of Appeals for the Tenth Circuit broadly applied the definition of…more

Arbitration, Board of Directors, Contract Interpretation, Corporate Officers, Errors and Omissions Policy

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Edward Smerdon

Eye on Insurance - A Look Back at 2013 and Forward to 2014

In This Update: Introduction; Financial Institutions; Directors & Officers; Cyber; Professional Indemnity; Liability; Products; Property; Latin America; Reinsurance; and Litigation, Costs & Procedure. Excerpt from…more

Banks, Cybersecurity, D&O Insurance, Indemnification, Insurers

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Lenore Smith

Florida Supreme Court to Decide Whether the Florida Civil Rights Act Prohibits Pregnancy Discrimination

The Florida Supreme Court has granted review to resolve a conflict between two of Florida’s district courts of appeal on whether the Florida Civil Rights Act (FCRA) prohibits pregnancy discrimination. In Delva v. Continental…more

Civil Rights Act, Discrimination, Pregnancy, Pregnancy Discrimination, Sex Discrimination

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Mahsa Soheil

Texas Department of Insurance Takes Narrow Interpretation of Code Concerning Construction Payment Bond Claims

Chapter 3503 of the Texas Insurance Code (the Insurance Code) governs the obligations of sureties in handling of claims under construction payment bonds. Recently, the Texas Department of Insurance (TDI) communicated its…more

Bonds, Insurers, Statutory Interpretation, Surety & Fidelity

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Mari Spears

Purple Haze Lifted by Ninth Circuit Regarding Jimi Hendrix’s Post-Mortem Publicity Rights

In Experience Hendrix L.L.C. v. HendrixLicensing.com LTD, Nos. 11–35858, 11–35872 (9th Cir. Jan. 29, 2014), the Ninth Circuit Court of Appeals upheld the constitutionality of Washington State’s Personality Rights Act (WPRA),…more

Copyright, Music, Right of Publicity

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L. Kimberly Steele

Straight Talking in Texas: The Contractual Liability Exclusion Means What It Says and Says What It Means

According to prominent insurance commentator, Randy Maniloff, Ewing Construction Co., Inc. v. Amerisure Insurance Co. was “probably the most closely watched coverage case in the country” in 2013. This is no longer, as the Texas…more

Limitation of Liability Clause

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John Stephens

Be Kind, Rewind: Ninth Circuit Uses Betamax-Era Precedent to Approve Dish Network’s Ad-Skipping Technology

It began initially with TIVO, and has since expanded to major cable and satellite providers such as DirecTV and Dish Network (Dish). Television viewers are now able to digitally record multiple programs with the press of a…more

Advertising, Cable Television Providers, Television Broadcast Stations, Television Commercials, Television Service Providers

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Duncan Strachan

Eye on Insurance - A Look Back at 2013 and Forward to 2014

In This Update: Introduction; Financial Institutions; Directors & Officers; Cyber; Professional Indemnity; Liability; Products; Property; Latin America; Reinsurance; and Litigation, Costs & Procedure. Excerpt from…more

Banks, Cybersecurity, D&O Insurance, Indemnification, Insurers

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Kristie Tappan

Recent Developments in Medical Monitoring Case Law (2013-2014)

Over the last 30 years, state and federal courts have grappled with how best to address claims filed by plaintiffs who do not currently suffer from an actual injury or illness, but rather seek damages for their risk of…more

Healthcare, Medical Devices, Medical Liability, Medical Monitoring

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Michael Topp

“FAIR” is Fair: California Policyholders Not Entitled to Recovery Beyond Specified Policy Limits for Fire Losses

Recently, the California Court of Appeal held that recovery under a standard California fire policy is limited to the specified policy limits, even if the actual cash value of the loss exceeds those limits…more

Fire Insurance

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Danila Toscano

Delayed Discovery Cannot Cure Defective Pre-Litigation Investigations for Proposition 65 Suits

A California appellate court recently determined that a consumer group’s failure to conduct required pre-litigation investigations of several restaurant chains’ alleged Proposition 65 violations warranted dismissal of the…more

Discovery, Dismissals, PCRM, Preemption, Proposition 65

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Sigrid Waggener

Center for Biological Diversity Files Lawsuit Against DOGGR, Alleges Agency Fails to Enforce its Own Regulations

On January 24, 2013, the Center for Biological Diversity (CBD) filed suit in Alameda Superior Court in California, joining other environmental groups including Earthjustice and the Sierra Club in alleging that the California…more

CEQA, DOGGR, Energy Policy, Fracking, Oil & Gas

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Brooke Wahlberg

Caution: Wildlife Crossing – Hydraulic Fracturing and Endangered Species

Hydraulic fracturing, or “fracking,” has become a hot button issue for environmental groups. Most reported environmental issues pertaining to fracking involve water use and water and air quality. However, over the past few…more

Endangered Species, Endangered Species Act, Environmental Liability, Environmental Policies, Fracking

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Michael Walsh

The Future is Here - Is the Internet a Place?

The California Supreme Court has certified a question for review posed by the Ninth Circuit – Is the internet a “place of public accommodation” as described in the California Disabled Persons Act (“DPA”), Civil Code §§ 54, et…more

Disability, Disability Discrimination, Internet

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Heather Weeter

In Florida, General Contractor Overhead and Profit are Part of Replacement Cost Policies Even When Repairs Have Not Yet Been Made

Last month, the Supreme Court of Florida issued an opinion in Trinidad v. Florida Peninsula Ins. Co., — So.3d —, 2013 WL 3333823 (Fla. July 3, 2013), addressing a Florida statute that required the insurer of a replacement cost…more

Construction Contracts, Contractors, General Contractors, Insureds, Liability

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Robert Weill

Florida High Court Liberally Construes Self-Insured Retention Endorsement

On February 6, 2014, the Florida Supreme Court took a liberal view of self-insured retentions (SIRs) and held that an insured can apply indemnification payments from a third party to satisfy its SIR under a general liability…more

Commercial General Liability Policies, Risk Retention, Self-Insurance

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Stuart Weinsteins

A New Limit on Juror Rehabilitation in Florida

According to the Florida Supreme Court in Matarranz v. State, No. SC11-1617, 2013 WL 5255117 (Fla., Sept. 26, 2013), there is no reliable rehabilitation for a prospective juror who raises doubts of partiality based on opinions…more

Jury Selection, Jury Trial, Voir Dire

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Nicholas Weiss

An “App” a Day Will NOT Keep the FDA Away: The Rise of Mobile Medical Applications

The number of mobile applications (apps) available to consumers on their iPhones, Androids, and iPads is astonishing. As of January 2013, there were more than 775,000 different apps available to iPhone and iPad users. It comes…more

FDA, Healthcare, Innovation, Medical Devices, Mobile Apps

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Nora Wetzel

New Case Holds Sophisticated Parties May Contractually Waive the Delayed Discovery Rule Applicable to Actions for Latent Construction Defects in California

In Brisbane Lodging, L.P. v. Webcor Builders, Inc., 216 Cal.App.4th 1249 (2013), a California appeals court upheld a contract clause waiving the delayed discovery rule applicable to actions for latent construction defects…more

Breach of Contract, Construction Defects, Discovery Rule, Substantial Completion, Waivers

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Mike Williams

Ninth Circuit Reverses NEPA Approval of an Oil and Gas Lease in the Chukchi Sea

The Bureau of Ocean Energy Management (BOEM) of the Department of Interior sought to lease approximately 30 million acres of federal land in the Chukchi Sea for oil and gas development, but, according to a recent decision by the…more

BOEM, Environmental Policies, Mineral Leases, NEPA, Offshore Drilling

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Jeffrey Winn

NJ’s Bad Faith Legislation Stemming From Superstorm Sandy Needs Emergency Relief

In the wake of Superstorm Sandy, the New Jersey Legislature is considering the passage of A370, which will enable policyholders to sue insurers for bad faith based on a single alleged violation of the New Jersey Insurance Trade…more

Bad Faith, Hurricane Sandy, Insurers, Proposed Legislation

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S. Vance Wittie

U.S. Supreme Court Resolves Enforcement of Forum Selection Provisions

The federal courts have been divided regarding how to handle motions to enforce contractual forum selection provisions. Some courts have held that the plaintiff’s choice of a forum other than the one provided by contract makes…more

Forum Selection Clause, SCOTUS

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BethYoffie

Homeowners Beware: Fraud in Claims Process Can Lead to Judicial Sanctions in Bad Faith Action

A federal court for the Southern District of Texas has sanctioned a pro se litigant for making fraudulent misrepresentations to his homeowner’s insurer following a fire, and for bringing a bad faith action against the insurer…more

Bad Faith, Claims Procedures, Fraud

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