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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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Is the ‘Food Court’ Losing Steam? - An Update on Food and Beverage Consumer Class Actions in the Northern District of California

In 2013, we examined the state of the ‘‘Food Court’’ in the Northern District of California. While highlighting the tidal wave of food and beverage-related consumer class action litigation in the Northern District, we suggested…more

Class Action, Food Labeling, Food Manufacturers, Food Safety

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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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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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D&O Claims – Overview of US Securities Law

The Securities Act of 1933 (“the 1933 Act”) regulates the process by which securities are first offered and sold to the public, and has two primary objectives: (1) to ensure that investors receive full and accurate information…more

D&O Insurance, Disclosure Requirements, Enforcement, Federal Jurisdiction, Jurisdiction

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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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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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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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U.S. Court of Appeals Dismisses Almost All Claims of Ecuadorian Provinces and Individual Plaintiffs Against DynCorp

The U.S. Court of Appeals for the District of Columbia recently affirmed the dismissal of all but three claims brought by individual and government entity plaintiffs against defendant DynCorp based on claims of injury by an…more

Dismissals, Expert Testimony, Hazardous Substances

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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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Credit Crunch Digest

This issue of the Credit Crunch Digest focuses on ongoing civil lawsuits and regulatory investigations into Libor manipulation by large banks, including the possible imposition of new criminal penalties by U.K. authorities…more

Bank of America, Banking Sector, Banks, Currency Manipulation, Dodd-Frank

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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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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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Prior Publication Precludes Coverage for Advertising Injury

In Street Surfing, LLC v. Great American E&S Ins. Co., 752 F.3d 853 (9th Cir. 2014), the court held that the prior publication exclusion precluded coverage to Street Surfing, LLC (“Street Surfing”) for an underlying lawsuit…more

Advertising, Advertising Injury, Copyright, Copyright Infringement, Trademark Litigation

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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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Is the ‘Food Court’ Losing Steam? - An Update on Food and Beverage Consumer Class Actions in the Northern District of California

In 2013, we examined the state of the ‘‘Food Court’’ in the Northern District of California. While highlighting the tidal wave of food and beverage-related consumer class action litigation in the Northern District, we suggested…more

Class Action, Food Labeling, Food Manufacturers, Food Safety

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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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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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Credit Crunch Digest

This issue of the Credit Crunch Digest focuses on ongoing civil lawsuits and regulatory investigations into Libor manipulation by large banks, including the possible imposition of new criminal penalties by U.K. authorities…more

Bank of America, Banking Sector, Banks, Currency Manipulation, Dodd-Frank

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So A Man Walks Out of a Bar . . . Applying the Liquor Liability Exclusion to a Drunken Pedestrian

In State Automobile Mutual Ins. Co. v. Lucchesi, ___ Fed. Appx. ___, 2014 WL 1395690 (3d Cir. Apr. 11, 2014), the U.S. Court of Appeals for the Third Circuit upheld summary judgment for State Auto and concluded that a liquor…more

Liquor, Public Drunkeness

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Interaction fo Trustee Indemnities and Liability Insurance

When a trustee is sued for breach of trust and claims against his professional indemnity insurers, questions often arise as to the extent to which the trustee must first pursue any other rights of indemnity (for example against…more

Estate Planning, Liability Insurance, Trustees, Trusts

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Mississippi High Court Vacates Widow’s $1.1 Million Silica Sand Verdict for Insufficient Evidence

The Mississippi Supreme Court recently reversed a $1.1 million jury verdict of a widow of a former railroad worker. In Mississippi Valley Silica Company, Inc. v. Reeves, (Supreme Court of Mississippi, No. 2012-CA-01702-SCT,…more

Jury Awards, Railroads, Reversal, Silica, Toxic Exposure

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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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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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Regulatory Issues in Layaway Ticket Sales

The economic downturn and great recession decreased consumers’ disposable income, made consumer borrowing more difficult and soured public opinion against borrowing and amassing credit card debt. Combating this downward trend in…more

Corporate Counsel, Debt, FTCA, Layaway, Retailers

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CA Appellate Courts: Secondary Exposure Claims Permitted Against Product Manufacturers, But Not Premises Owners

Two California Courts of Appeal recently decided cases that will significantly impact secondary asbestos exposure claims in California. The result is that premises owners have no duty to protect family members of workers on…more

Appeals, Asbestos, Asbestos Litigation, Manufacturers, Negligence

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Florida Supreme Court Strikes Down Red Light Ordinances as Preempted by State Law

On June 12, 2014, the Florida Supreme Court decided two cases that involved whether municipal ordinances imposing penalties for red light violations detected by devices using cameras were invalid because they were preempted by…more

Traffic Laws

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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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New Jersey Rejects Liability for Third-Party Manufactured Replacement Parts Based on Lack of Causation Evidence

In Hughes v. A.W. Chesterton Co., the Appellate Division of the Superior Court of New Jersey affirmed a trial court’s granting of Goulds Pumps’ motion for summary judgment to a set of consolidated asbestos personal injury cases…more

Asbestos, Asbestos Litigation, Third-Party

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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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Supreme Court Rules CERCLA Does Not Preempt State Statute of Repose

In CTS Corp. v. Waldburger, 13-339, 2014 WL 2560466 (U.S. June 9, 2014), the United States Supreme Court held that the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, also known as Superfund) does…more

CERCLA, Contamination, CTS Corp v Waldburger, Environmental Liability, Environmental Policies

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District Court Seeks to Streamline Hurricane Sandy Insurance Cases Through Dismissals

Yesterday, in the In re Hurricane Sandy Cases, Civil Action No.: 1:14-mc-00041-CLP-GRB-RER, a committee of magistrates in the Eastern District of New York recommended that the district judges presiding over more than 150…more

Dismissals, Hurricane Sandy, Property Insurance

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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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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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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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New York’s Highest Court Affirms Zoning Ordinances Banning Hydrofracking

The Insurance Law Blog has been following decisions related to hydraulic fracturing for potential impacts on insurance coverage issues. As we previously reported in May 2013, the New York Supreme Court, Appellate Division,…more

Appeals, Fracking, Fracking Bans, Municipalities, Natural Gas

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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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FTC Clarifies COPPA “Verifiable Parental Consent” Requirements

The Federal Trade Commission (FTC) modified guidelines it issues to developers who make apps specifically for children. App developers have taken advantage of the soaring lucrative app market aimed at a younger audience that not…more

COPPA, Data Protection, FTC, Mobile Apps, Parental Consent

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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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Credit Crunch Digest

This issue of the Credit Crunch Digest focuses on ongoing civil lawsuits and regulatory investigations into Libor manipulation by large banks, including the possible imposition of new criminal penalties by U.K. authorities…more

Bank of America, Banking Sector, Banks, Currency Manipulation, Dodd-Frank

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Canada’s Anti-Spam Legislation (CASL) Will Impact U.S. Companies

?????Canada’s Fighting Internet and Wireless Spam Bill, better known as Canada’s Anti-Spam Legislation (CASL), was enacted in December 2010, but enforcement of the law did not commence until July 1, 2014, on Canada Day. The law…more

CAN-SPAM Act, Canada, CASL, Commercial Electronic Messages, Opt-In

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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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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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Search Me: The Constitutionality of “Stop and Frisk” Policies

The constitutionality of the New York City Police Department’s (NYPD) “stop and frisk” policy (which resulted in thousands of pedestrians detained and patted down without reasonable suspicion) was the subject of intense scrutiny…more

Fourteenth Amendment, Fourth Amendment, Police, Stop and Frisk, Warrantless Searches

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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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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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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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NJ Court Clarifies Rights to Contribution From Joint Tortfeasors Dismissed Under Statute of Repose

The Superior Court of New Jersey, Appellate Division, recently clarified the applicability of New Jersey’s Joint Tortfeasors Contribution Act, N.J.S.A. 2A:53A-3, to claims for contribution from parties that have been dismissed…more

Contribution Claims, FedEx, Negligence, Statute of Repose

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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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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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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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The Affordable Care Act – Where are We Now

With the passing of the March 31st deadline for the initial open-enrollment under the Affordable Care Act (“ACA” or “ObamaCare”), the resignation of Health and Human Services (HHS) Secretary Kathleen Sebelius, and the enrollment…more

Affordable Care Act, Contraceptive Coverage Mandate, Data Breach, HHS, Hobby Lobby

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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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California Court of Appeal Allows Taxpayer Lawsuit Against Contractors on Public Works Projects

Public works contractors: Beware of accusations of corruption. In Gilbane Building Company v. Superior Court, 223 Cal.App.4th 1527 (2014), an appellate court cleared the way for taxpayers to sue contractors for engaging in…more

Construction Contracts, Contractors, Corruption, Disgorgement, Marketing

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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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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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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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A Small Step Toward "Redevelopment 2.0"? Gov. Brown's Proposal to Expand the Use of Infrastructure Financing Districts

Over two years have passed since Gov. Jerry Brown and the California Legislature dissolved the 400-plus redevelopment agencies throughout the state and ordered them to wind down their operations and finances, with the goal of…more

Economic Development, Infrastructure, Jerry Brown, Public Projects

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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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A Proposal Requiring Study on Fracking and Its potential Hazards Put in Suspense File; Bill Headed to Senate

Senate Bill (SB) 1132, sponsored by Sens. Holly Mitchell (D-Los Angeles) and Mark Leno (D-San Francisco) and last amended May 6, 2014, was put into the “Suspense File” (a holding place for bills that require appropriations over…more

Environmental Policies, Fracking, Legislative Agendas, Oil & Gas

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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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Federal Officer Jurisdiction Is Alive and Well: Ninth Circuit Affirms Jurisdiction for Navy Equipment Manufacturer

The Ninth Circuit Court of Appeals' recent opinion in Leite v. Crane Co., 2014 WL 1646924 (9th Cir. April 25, 2014), affirmed a decision by the Hawaii Federal District Court denying a motion to remand after finding that a Navy…more

Appeals, Asbestos, Conflicts of Laws, Crane, U.S. Navy

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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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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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Unpaid Prevailing Wage Assessments and Actions: Ways a General Contractor (and Its Surety) Can Protect Itself or Limit Its Exposure

General contractors and their sureties on public works construction projects in California have faced an onslaught of claims, assessments, and lawsuits based on the failure of subcontractors, regardless of tier, to pay their…more

Contractors, Department of Industrial Relations, Employer Liability Issues, General Contractors, Indemnification

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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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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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District Court Dismisses Skydiver’s Action Against Aircraft Liability Insurer Based on Jumper Exclusion

U.S. District Court, Western District of Virginia - In McGirk v. Certain Underwriters at Lloyds’s, -- F. Supp. 2d --, 2014 WL 690684 (W.D.Va. Feb. 21, 2014), the U.S. District Court for the Western District of Virginia…more

Aircraft, Bodily Injury, Commercial General Liability Policies

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The Check’s in the Mail - Who Is Responsible for Payment in a Delegated-Network System?

In today’s healthcare system, reimbursement issues involve not only prompt pay statutory provisions but also various risk-shifting arrangements included in a delegated-network system of managed care. When the insolvency of an…more

Health Insurance, Healthcare, HMOs, Physician Payments, Reimbursements

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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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Illinois Supreme Court Debates Automatic Revocation of Certain Health Professionals' Licenses

Our reports on the oral arguments of the May term of the Illinois Supreme Court conclude this morning with Consiglio v. Department of Financial and Professional Regulation. Consiglio involves a constitutional challenge to…more

Criminal Records, Felonies, Health Care Providers, Licenses, Revocation

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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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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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Separated from Spouse, Separated from Coverage: Illinois Court Finds Phrase “Resides Primarily” in Spouse Definition Unambiguous and Enforceable

In Gaudina v. State Farm Mutual Auto. Ins. Co., 2014 Il. App. (1st) 131264 (March 28, 2014), an Illinois appellate court found that State Farm properly denied coverage to a motorist seeking coverage under his estranged wife’s…more

Auto Insurance, Bodily Injury, Car Accident

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Entry Barred: California Precondemnation Entry Statutes Declared Unconstitutional in Some Circumstances

Provisions of California’s Eminent Domain law known as the “entry statutes” have for decades provided a mechanism for a condemnor, prior to initiating condemnation proceedings, to obtain a court order allowing it to enter…more

Condemnation, Eminent Domain, Takings

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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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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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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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No Coverage Under Aviation Policies Where Product Was Not Used in Connection With Aircraft or Aviation Operations

Superior Court of New Jersey, Appellate Division - A New Jersey appellate court affirmed an order granting summary judgment, stating that the insurer owed no duty to defend or indemnify its insured in a personal injury…more

Aircraft, Aviation Industry, Commercial General Liability Policies, FAA

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Post-Heimeshoff Case Law Signifies Consistency in Applying ERISA Plan Limitations Provisions

As we reported back in December 2013, the U.S. Supreme Court recently ruled that a reasonable limitation of actions provision in an employee welfare benefit plan governed by the Employee Retirement Income Security Act of 1974…more

Employee Benefits, ERISA, Heimeshoff v. Hartford Life & Accident Insurance Co., SCOTUS, Statute of Limitations

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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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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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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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California Supreme Court to Determine Whether Retailers Must Provide Defibrillators to Treat Their Business Visitors

The California Supreme Court recently heard arguments in the case of Verdugo v. Target Corporation on an important issue that could open the floodgates to litigation for retailers and other businesses throughout California. The…more

Medical Devices, Retailers, Target

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Green Chemistry Regulatory Push Among States Continues

What began in 2008 with a few states enacting laws to address the perceived threats to children from chemicals in toys and kids’ products has become a full-fledged “green chemistry” movement in dozens of states. These laws are…more

DTSC, Environmental Policies, Green Chemistry, Manufacturers, Toxic Substances Control Act

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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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The Very Idea! Federal Circuit Rules Widely Used Java Code Is Copyrightable

A central doctrine in copyright cases is that only expression is copyrightable, not the idea itself. An idea may be expressed in many ways. It might be said, for example, that William Blake, through his mystical visions, and…more

Copyright, Software

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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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New York Federal Court Dismisses Superstorm Sandy Bad-Faith Claim as Redundant

In 433 Main Street Realty, LLC v. Darwin National Assurance Co., 2014 WL 1622103 (E.D.N.Y. Apr. 22, 2014), the United States District Court for the Eastern District of New York dismissed the insureds’ cause of action against…more

Bad Faith, Covenant of Good Faith and Fair Dealing, Hurricane Sandy, Natural Disasters

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Statutes of Limitations for Civil Actions Based on Childhood Sexual Abuse

There has been persistent media coverage about childhood sexual abuse. In some cases, victims who were sexually abused years ago, have brought civil lawsuits against perpetrators and their affiliated organizations despite the…more

Child Abuse, Sexual Abuse, Statute of Limitations

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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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CSLL Does Not Bar Successor Entity’s Compensation Claims After Contractor’s Change of Business Entity During Construction

A recent decision by the California Court of Appeal imposed a sensible limit on the prohibition of compensation claims by unlicensed contractors under the Contractors’ State License Law (“CSLL”), specifically California Bus. &…more

Appeals, Construction Contracts, Contract Disputes, Contractor's License, Contractors

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Duped Subcontractor Can’t Recover From Landowner Payments Owed by General Contractor Under CERCLA

On March 18, 2014, the U.S. Court of Appeals for the Second Circuit resolved a dispute of apparent first impression regarding the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The court…more

CERCLA, Environmental Policies, Fraud, General Contractors, Subcontractors

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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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Is Defective Construction an “Occurrence”? More States Are Answering Yes

Last year, we examined the different approaches states have adopted to resolve whether defective construction by itself is an “occurrence” within the meaning of liability insurance policies. See Is Defective Construction Work…more

Commercial General Liability Policies, Construction Contracts, Construction Defects, Construction Disputes, Construction Workers

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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 Mandamus

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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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Supreme Court Knocks Out Laches as Equitable Defense to "Raging Bull" Suit

In Petrella v. Metro-Goldwyn-Mayer, Inc., No. 12-1315 (May 19, 2014), the Supreme Court of the United States found the equitable defense of laches does not apply to a copyright infringement claim. In a 6-3 decision, the Supreme…more

Affirmative Defenses, Copyright, Copyright Infringement, Laches, MGM

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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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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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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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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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Washington Insurance Law 2014 Mid-Year Update

During the first six months of 2014, Washington judges issued several notable insurance-related decisions. Some of those decisions were favorable to insurers and could benefit insurers in future insurance claims and lawsuits in…more

Administrative Hearings, Commercial General Liability Policies, Duty to Defend, Environmental Claims, Fiduciary Duty

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Corporate Recovery and Insolvency in Bermuda

1 Issues Arising When a Company is in Financial Difficulties - 1.1 How does a creditor take security over assets in Bermuda? Bermuda is a self-governing British Overseas Territory. The systems of law administered…more

Creditors, Debtors, Foreign Corporations, Foreign Jurisdictions

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England and Wales Court of Appeal: Do Not Disclose At Your Peril

The Court of Appeal in England and Wales recently affirmed the High Court’s decision in Alan Bate v Aviva Insurance UK Ltd [2014] EWCA Civ 334, which held that Aviva was entitled to rescind or avoid a domestic property insurance…more

Disclosure, Property Insurance, UK

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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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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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Texas Federal Court Dismisses Insurer in Case Alleging “Bad Faith” and Violations of the Texas DTPA

On April 18, 2014, a federal district court in Texas granted summary judgment in favor of an insurer that had paid the policy proceeds demanded by the insureds, but nonetheless were sued for “bad faith.” The court’s decision…more

Bad Faith, First-Party Coverage, Insureds

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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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“Related Acts” Reduce Insurer’s Exposure by Half

The Eighth Circuit Court of Appeals recently held that, under Minnesota law, multiple wrongful acts by a financial advisor to four plaintiffs are “interrelated” and “logically connected” within the meaning of the policy’s…more

Causation, Life Insurance, Prior Wrongful Acts

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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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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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D&O Insurers Take Note: U.S. Supreme Court Modifies the “Basic” Game

Yesterday, the U.S. Supreme Court issued a unanimous¹ decision in the securities fraud case, Halliburton Co. v. Erica P. John Fund, which was highly anticipated by many who follow the federal securities laws, including D&O…more

Basic v Levinson, Class Action, Class Certification, Fraud, Fraud-on-the-Market

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Credit Crunch Digest

This issue of the Credit Crunch Digest focuses on ongoing civil lawsuits and regulatory investigations into Libor manipulation by large banks, including the possible imposition of new criminal penalties by U.K. authorities…more

Bank of America, Banking Sector, Banks, Currency Manipulation, Dodd-Frank

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California Encourages Building Efficiency by Implementing Energy Benchmarking Legislation

After a series of delays, California has implemented new energy disclosure legislation requiring nonresidential building owners to disclose energy information to parties to transactions as well as to the California Energy…more

Building Standards, Energy, Energy Policy

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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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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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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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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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FTC Report Sheds Light on Dark World of Data Brokers

The Federal Trade Commission (“FTC”) recently issued a report entitled “Data Brokers: A Call for Transparency and Accountability” that identifies various concerns raised by the “Big Data” industry and provides solutions for…more

Data Brokers, FTC, Popular, Transparency

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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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Corporate Recovery and Insolvency in Bermuda

1 Issues Arising When a Company is in Financial Difficulties - 1.1 How does a creditor take security over assets in Bermuda? Bermuda is a self-governing British Overseas Territory. The systems of law administered…more

Creditors, Debtors, Foreign Corporations, Foreign Jurisdictions

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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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Green Chemistry Regulatory Push Among States Continues

What began in 2008 with a few states enacting laws to address the perceived threats to children from chemicals in toys and kids’ products has become a full-fledged “green chemistry” movement in dozens of states. These laws are…more

DTSC, Environmental Policies, Green Chemistry, Manufacturers, Toxic Substances Control Act

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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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Governor Brown Taps Cuellar to Fill Latest Vacancy on California Supreme Court

Governor Jerry Brown has nominated Stanford law professor Mariano-Florentino Cuellar to fill the most recent vacancy on the California Supreme Court created by the impending retirement of Justice Marvin Baxter. Cuellar is “a…more

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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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Garlock Court Grants Access to Sealed Documents Demonstrating a Widespread Pattern of Manipulation of Exposure Evidence

Ford Motor Company recently obtained access to previously sealed testimony and exhibits that formed the basis for a bankruptcy court’s January 10, 2014 Order finding a widespread pattern of demonstrable misrepresentation by…more

Asbestos, Asbestos Litigation, Commercial Bankruptcy, Evidence, Evidence Suppression

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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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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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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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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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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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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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Indiana Federal Court Reconsiders Prior Ruling and Dismisses Untimely Claims for Injunctive Relief Under the Clean Air Act

In United States v. United States Steel Corp., __F.Supp.2d__, 2014 WL 1577837 (N.D. Ind. Apr. 18, 2014), an Indiana district court judge granted the defendant’s motion for reconsideration, candidly admitted he was wrong the…more

Clean Air Act, Clean Air Act Violations, Motion for Reconsideration, Statute of Limitations, US Steel

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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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Illinois “Blasts” Non-TCPA Causes of Action Out of Coverage

In G.M. Sign, Inc. v. State Farm Fire & Cas. Co., 2014 IL App (2d) 130593 (May 2, 2014), the Illinois appellate court enforced a policy’s Violation of Statutes Exclusion endorsement to preclude coverage for a settlement arising…more

TCPA, Unsolicited Faxes

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Credit Crunch Digest

This issue of the Credit Crunch Digest focuses on ongoing civil lawsuits and regulatory investigations into Libor manipulation by large banks, including the possible imposition of new criminal penalties by U.K. authorities…more

Bank of America, Banking Sector, Banks, Currency Manipulation, Dodd-Frank

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NY Bill Seeks to Strip Insurers of Discretion When Substance Abuse Services Should Be ERISA Preempted

The New York State Senate is considering passing Bill No. 4326 which seeks to address an epidemic of heroin and prescription drug abuse by requiring insurers to provide in-patient treatment to addicts. Publicity over the death…more

Drug & Alcohol Abuse, ERISA, Health Insurance, Healthcare, Inpatient Rehab Facilities

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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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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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Lights Out for Policyholders Seeking Business Interruption Coverage Due to Loss of Electricity

Super Storm Sandy caused widespread power outages throughout the New York metropolitan area in late October 2012, rendering it impossible for many companies and firms to conduct business. In Newman Myers Kreines Gross Harris,…more

Business Interruption, Electricity, Loss of Income, Property Insurance

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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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Is Defective Construction an “Occurrence”? More States Are Answering Yes

Last year, we examined the different approaches states have adopted to resolve whether defective construction by itself is an “occurrence” within the meaning of liability insurance policies. See Is Defective Construction Work…more

Commercial General Liability Policies, Construction Contracts, Construction Defects, Construction Disputes, Construction Workers

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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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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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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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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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Class Certification Meltdown in Florida

A district court in Florida recently denied class certification for consumers who purchased the dietary supplement “Meltdown.” Karhu v. Vital Pharmaceutical, Inc., CASE NO. 13-60768-CIV-COHN/SELTZER (S.D. Fla. Mar. 3, 2014). …more

Class Action, Class Certification, Pharmaceutical, Unfair or Deceptive Trade Practices, Vital Pharmaceuticals

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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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Federal Court Undresses Urban Outfitters in Personal and Advertising Injury Coverage Dispute

In OneBeacon America Ins. Co. v. Urban Outfitters Inc., 2014 WL 2011494 (E.D.Pa. 2014), the Eastern District of Pennsylvania analyzed the application of “personal and advertising injury” coverage to alleged violations of…more

Advertising, Advertising Injury, Confidentiality, Personal and Advertising Injury Coverage, Popular

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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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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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Statutes of Limitations for Civil Actions Based on Childhood Sexual Abuse

There has been persistent media coverage about childhood sexual abuse. In some cases, victims who were sexually abused years ago, have brought civil lawsuits against perpetrators and their affiliated organizations despite the…more

Child Abuse, Sexual Abuse, Statute of Limitations

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Dallas Jury Awards $3 Million Verdict Against Oil and Gas Production Company

On April 22, 2014, a Dallas jury awarded almost $3 million to a Texas family in a nuisance case referred to in media headlines as the first-of-its-kind “fracking” case. Parr v. Aruba Petroleum, Inc., No. 11-01650-E (County Ct…more

Energy, Fracking, Jury Verdicts, Oil & Gas

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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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“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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CA Appellate Courts: Secondary Exposure Claims Permitted Against Product Manufacturers, But Not Premises Owners

Two California Courts of Appeal recently decided cases that will significantly impact secondary asbestos exposure claims in California. The result is that premises owners have no duty to protect family members of workers on…more

Appeals, Asbestos, Asbestos Litigation, Manufacturers, Negligence

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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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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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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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Federal Court Rejects Homeowners’ Expert’s Valuation of Alleged Diminution in Value Due to Environmental Contamination

In a recent environmental contamination case, a New Jersey federal judge rejected an expert valuation of alleged diminution in value on Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993) grounds. In Leese, et al. v…more

Contaminated Properties, Lockheed Martin, Valuation

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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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Florida High Court Poised to Clarify Harmless Error Standard in Civil Appeals

On June 20, 2012, the Florida Supreme Court accepted review of a Fourth District Court of Appeal case that certified the following question of great public importance: “In a civil appeal, shall error be held harmless where it is…more

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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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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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Virginia Federal Court Allows Recoupment by Insurer – Where Guilty Pleas Triggered Coverage Exclusions

In Protection Strategies, Inc. v. Starr Indemnity & Liability Co., Civil Action No. 1:13-cv-00763 (E.D. Va. Apr. 23, 2014), the United States District Court for the Eastern District of Virginia granted Starr Indemnity &…more

D&O Insurance, NASA, OIG, Policy Exclusions, SBA

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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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Florida Supreme Court Affirms Disqualification of Counsel for Class Action of Toxic Tort Plaintiffs

The Florida Supreme Court clarified that its rules of professional responsibility govern whether counsel for class action plaintiffs should be disqualified based on alleged conflicts of interests that arise after a class action…more

Class Action, Corporate Counsel, Disqualification, Professional Liability, Settlement

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Avoiding Sticker Shock: A Look Into What Are Considered “Reasonable and Customary” Charges Under 28 CCR §1300.71(a)(3)(B)

In the case Children’s Hospital Central Cal. v. Blue Cross of Cal. (Cal. Ct. App. 2014) ___Cal.App.4th ___ (No. F065603), The Children’s Hospital Central California (“Hospital”) and Blue Cross of California (“Blue Cross”)…more

Blue Cross, Health Insurance, Healthcare, Hospitals, Medical Expenses

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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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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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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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Areas of Practice
  • Administrative Law
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Other U.S. Locations
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Number of Attorneys

100+ Attorneys

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