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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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Significant Victory for Defendants in Sierra Club Pollution Suit

In Sierra Club v. Energy Future Holdings Corp., No. W-12-CV-108 (W.D. Tex. August 29, 2014), a Texas federal judge recently awarded $6.4 million in attorneys’ fees and costs to the defendants in a pollution suit brought by the…more

Attorney's Fees, Contaminated Properties, Discharge of Pollutants, Environmental Liability, Environmental Policies

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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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California Court of Appeal Rules That California Regulation Section 1300.71(a)(3)(B) Is Not the Exclusive Standard for Valuing the Post-Stabilization Services Provided by a Non-Contracted Hospital

Children’s Hospital Central California v. Blue Cross of California (2014) 226 Cal.App.4th 1260, involved a dispute between a hospital and a health plan over the reasonable value of the post-stabilization medical services that…more

Appeals, Blue Cross, Children's Hospital, Medi-Cal, Reasonableness Factors

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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 District Court Holds Lessee Not Liable Under CERCLA as an Owner

A New York federal district court recently held that a lessee will not be found liable under CERCLA as an owner where the lessee does not possess sufficient indicia of ownership. (Next Millennium Realty, LLC v. Adchem Corp.,…more

CERCLA, Commercial Leases, Contaminated Properties, Environmental Liability, Lessee

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Frequent-Flyer Class Actions Likely To Be Less Frequent

Airlines offer frequent-flyer programs to reward loyal customers and attract new ones by awarding various perks based on the “miles” each member accumulates. In practice, however, frequent-flyer programs too often attract…more

Airlines, Class Action, Rewards Programs

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Credit Crunch Digest - October 2014

This issue of the Credit Crunch Digest focuses on estimated Forex-related fines and exposure; requests by U.K. authorities for additional funding to investigate rate-rigging and Forex manipulation; a guilty plea in connection…more

Bank of America, Barclays, Bernie Madoff, Citigroup, Class Action

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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 - October 2014

This issue of the Credit Crunch Digest focuses on estimated Forex-related fines and exposure; requests by U.K. authorities for additional funding to investigate rate-rigging and Forex manipulation; a guilty plea in connection…more

Bank of America, Barclays, Bernie Madoff, Citigroup, Class Action

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Texas Supreme Court Recognizes Exceptions to Enforcement of No-Damages-for-Delay Clauses

On August 29, 2014, in Zachry Construction Corp. v. Port of Houston Authority of Harris County, No. 12-0772, 2014 WL 4472616 (Tex. 2014), the Texas Supreme Court found that no-damages-for-delay clauses that purport to waive…more

Appeals, Construction Contracts, Construction Industry, Contractors, General Contractors

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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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The International Comparative Legal Guide to International Arbitration 2014: A practical cross-border insight into international arbitration work, 11th edition: Bermuda

Bermuda - 1 Arbitration Agreements: 1.1 What, if any, are the legal requirements of an arbitration agreement under the laws of Bermuda? Other than requiring that it must be in writing, Bermuda’s arbitration…more

Arbitration, Arbitration Agreements, Arbitration Awards, Choice-of-Law, Confidentiality

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Employers’ Asbestos Liabilities Do Not Extend to Workers’ Spouses

Two federal judges recently dismissed the claims of the spouses of workers who purportedly carried asbestos fibers home from their workplaces. In July 2014, the U.S. District Court for the Western District of Oklahoma dismissed…more

Asbestos, Asbestos Litigation, Employer Liability Issues, Mesothelioma, Take-Home 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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New Federal Chemical-Disclosure Regulations? Public-Comment Period Has Ended

In our July/August newsletter, we wrote that in May 2014, the Obama administration began to accept comments regarding potential federal hydraulic-fracturing regulations. The EPA, through an advance notice of proposed rulemaking…more

Chemicals, Disclosure Requirements, EPA, Fracking, New Regulations

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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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First Circuit Confirms No Fiduciary Breach in Use of a Retained Asset Account

For the second time this summer, the First Circuit Court of Appeals addressed whether an ERISA fiduciary’s use of a retained asset account (“RAA”) to pay death benefits is a breach of fiduciary duty. In Merrimon v. Unum Life…more

Breach of Duty, Employee Benefits, ERISA, Fiduciary Duty, Retained Asset Accounts

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Fifth Circuit Maritime Case Will Set National Standard

In McBride v. Estis Well Service LLC, a divided Fifth Circuit sitting en banc held that punitive damages are not recoverable by an injured seaman or his heirs under the Jones Act or general maritime law of…more

Employer Liability Issues, En Banc Review, Jones Act, Punitive Damages, Wrongful Death

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Market Outlook for San Francisco Commercial Real Estate

The San Francisco commercial real estate market continues to be strong, with no apparent dark clouds on the horizon from a demand standpoint. The tech-led market brings growth to a variety of professional and other business…more

Commercial Real Estate Market, Economic Development, San Francisco

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Florida High Court to Decide Duties Owed by Public School Regarding Automated External Defibrillator

On October 6, 2014, the Florida Supreme Court heard oral argument in a case involving whether a public school owes a duty to maintain, make available, and use an automated external defibrillator (AED) on a student athlete who…more

Athletes, Healthcare, Medical Devices, Public Schools, Students

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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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Kansas Appellate Court Disallows Strict Liability Claims for Refinery’s Alleged Discharge of Pollutants

In City of Neodesha v. BP Corporation North America, Inc., 2014 WL 4116576, which involved BP’s successful defense of claims relating discharges from its refinery, the Court of Appeals of Kansas affirmed the denial of the…more

BP, Discharge of Pollutants, Environmental Policies, Strict Liability

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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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New California Law Sets the Stage for Insurance Regulation of Uber, Lyft

The emergence and success of ridesharing companies has sparked questions and debates over the gaps in insurance coverage created when private drivers offer commercial driving services. Ridesharing companies – such as Lyft,…more

Auto Insurance, Commercial Driving Licenses, Lyft, Startups, Uber

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Cannonball! CGL Policy Does Not Cover Pool Contractor for Subcontractor’s Negligence

In Standard Contractors, Inc. v. National Trust Ins. Co., Civil Action No.:7:14-cv-66-HL, the U.S. District Court for the Middle District of Georgia recently granted a commercial general liability insurer’s motion to dismiss a…more

Commercial General Liability Policies, Contractors, Negligence, Subcontractors

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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 - October 2014

This issue of the Credit Crunch Digest focuses on estimated Forex-related fines and exposure; requests by U.K. authorities for additional funding to investigate rate-rigging and Forex manipulation; a guilty plea in connection…more

Bank of America, Barclays, Bernie Madoff, Citigroup, Class Action

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California Enacts Smartphone Kill Switch Law to Promote Data Security

This week California enacted into law Senate Bill 962, which requires a “kill switch” on all smartphones that would render the device inoperable. The law applies to all smartphones manufactured after July 1, 2015 and sold in the…more

Apple, Data Protection, Google, Kill Switch, Microsoft

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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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TCPA Exclusion Upheld: No Ambiguity, No Duty to Defend or Indemnify for a $10 Million Judgment

In James River Insurance Company v. Med Waste Management LLC, et al., Case No. 1:13-cv-23608-KMM, (U.S. Dist. S. D. Fla., September 22, 2014), the U.S. District Court for the Southern District of Florida upheld a Telephone…more

Advertising, Advertising Injury, Class Action, Commercial General Liability Policies, Faxes

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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 Supreme Court Expands Architect’s Duty of Care to Future Homeowners

A new decision issued by the California Supreme Court holds that, even in the absence of contractual privity, an architect on a residential building project owes a duty of care to future homeowners to provide design services…more

Architects, Duty of Care, Negligence, Popular, Privity of Contract

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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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Omnicare: The Other Securities Case to be Worried About

In the securities law arena, all eyes are currently focused on the Halliburton case, and whether the U.S. Supreme Court will scrap or modify the “fraud on the market” presumption for reliance in connection with claims brought…more

Appeals, Certiorari, Fraud-on-the-Market, Omnicare, Presumption of Reliance

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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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UK Court: Directors Insured Under D&O Policies Cannot Avail Themselves of the Financial Ombudsman Service

The question of whether directors insured under D&O policies are entitled to complain to the Financial Ombudsman Service (“FOS”) in respect of an insurer’s handling of a claim has been a frequent discussion point for those…more

D&O Insurance, Directors, Ombudsman, UK

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UPDATE: United States Supreme Court Declines Review of Ninth Circuit Decisions Involving “Any Exposure” Theory and Government Contractor Defense

As reported in our January 2014 edition, the Ninth Circuit en banc 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…more

Asbestos Litigation, Daubert Hearing, En Banc Review, Expert Witness, Federal Contractors

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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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Plot Thickens for Screenplay Infringement Cases

INTRODUCTION - For more than three decades no type of lawsuit has been more likely to fail than those asserting that the latest hit movie or television series infringes the copyright in a screenplay or other literary…more

Authorship, Copyright, Copyright Infringement, Disney, Film Industry

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Aereo Loses Bid to Resume Operations

The U.S. Supreme Court ruled in June that Aereo, Inc., an online streaming service, was violating copyrights by retransmitting television broadcasts without the networks’ permission. The Court’s decision was based upon its…more

ABC v Aereo, Aereo, Broadcasting, Compulsory Licenses, Copyright

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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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In California, Looks Really Do Matter: Visual Appearance and Internal Consistency of Policy Language Supports Application of Exclusion

In Yu v. Landmark American Ins. Co., 2014 WL 4162365 (Cal. Ct. App. Aug. 22, 2014)*, the California Court of Appeals relied on the visual appearance and internal consistency of an endorsement entitled “EXCLUSION – YOUR PRIOR…more

Construction Defects, Construction Disputes, Contractors, Subcontractors

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Illinois Supreme Court Agrees to Decide Whether Pension Board's Disability Finding is Preclusive in Employee Benefits Act Proceedings

In the closing days of its November term, the Illinois Supreme Court agreed to decide whether a pension board’s finding that an officer is disabled for pension purposes is preclusive of the employer’s liability for health…more

Disability, Health Insurance, Pensions, Public Employees

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UK Court: Directors Insured Under D&O Policies Cannot Avail Themselves of the Financial Ombudsman Service

The question of whether directors insured under D&O policies are entitled to complain to the Financial Ombudsman Service (“FOS”) in respect of an insurer’s handling of a claim has been a frequent discussion point for those…more

D&O Insurance, Directors, Ombudsman, UK

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Warner Bros.’ Super Victory: U.S. Supreme Court Effectively Ends Lengthy Superman Copyright Dispute

Warner Bros. and its DC Comics subsidiary can now breathe a bit easier, as the U.S. Supreme Court has recently declined to intervene in the ongoing dispute over the ownership rights to Superman. And so ends (at least for now)…more

Beneficiaries, Copyright, Ownership of Works, Popular, Superman

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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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City’s Handling of Application for Subdivision Approvals May Trigger Liability Under Fair Housing Act

The Federal Fair Housing Act (“FHA”) prohibits discrimination in the sale or rental of housing, including discriminatory land use decisions, on account of race, color, religion, sex, national origin or familial status. The…more

Affordable Housing, Appeals, Discrimination, Fair Housing Act, Governmental Liability

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Pennsylvania Appeals Court Affirms Defendants’ Summary Judgments on Bystander Exposure Claims

Allegations of bystander exposure to asbestos via laundry is a common claim in cases where a plaintiff has no apparent occupational exposure but instead alleges that her asbestos-related disease was caused by exposure to fibers…more

Appeals, Asbestos, Asbestos Litigation, Bystander, Summary Judgment

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Guide to Class Actions in Latin America

LATIN AMERICAN COUNTRIES HAVE SEEN nothing like the mass class action litigation in the US. That is not to say that procedures are not in place for the protection of collective rights and interests. The focus across Latin…more

Class Action, Collective Actions, Latin America

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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 Break from Prison for General Noriega As Black Ops II Is Cleared by Transformative Use Doctrine

If you were looking forward to regrouping your special forces mission on “Call of Duty: Black Ops II” without any further interference from Pineapple Face, your moment has arrived. The aforesaid Face, as former sword-waving…more

First Amendment, Manuel Noriega, Online Gaming, Transformativeness

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New Jersey Court Turns the Screws on the Insured, Holding That “Your Product” Exclusion Bars Coverage For Defective Product Claim

In Titanium Industries, Inc. v. Federal Ins. Co., No. A-1922-12T1, 2014 WL 4428324 (N.J. Super. Ct. App. Div. Sept. 10, 2014), the court held that the commercial general liability policy issued by defendant Federal Insurance…more

Commercial General Liability Policies, Material Defects, Policy Exclusions, Popular

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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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New Mandatory Paid Sick Leave Law for California (aka: Take Two Aspirin and Call Me in the Morning)

On September 10, 2014, California became the second state in the nation to require private sector employers to provide paid sick leave to their employees…more

Employee Rights, Employer Liability Issues, Exclusions, Local Ordinance, New Legislation

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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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No CGL Coverage for Faulty Workmanship Under Pennsylvania Law

In State Farm Fire & Casualty Co. v. McDermott, 2014 WL 5285335 (E.D. Pa. Oct. 15, 2014), a federal court recently held that an insurer has no duty to defend or indemnify its insured against an underlying construction defect…more

Commercial General Liability Policies, Construction Defects, Construction Industry, Duty to Defend, Indemnification

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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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News Media Touts “Findings” of New Study on Fracking Wells Leaks, But Fails to Recognize Limitations of Data

New unconventional fracking wells leak far more than older traditional gas wells, says a smattering of news media outlets reviewing a new study released by the Proceedings of National Academy of Sciences on June 30, 2014. Yet,…more

Fracking, Horizontal Wells, Information Reports, Media, 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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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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District Courts Reviewing ERISA Cases Under the Arbitrary and Capricious Review Standard Serve Only in an Appellate Role

In McCorkle v. Metro. Life Ins. Co., 13-30745, 2014 WL 2983360 (5th Cir. 2014), the Fifth Circuit reversed the district court’s holding that MetLife’s adverse determination regarding the plaintiff’s claim for benefits due to the…more

Death Benefits, Employee Benefits, Employer Liability Issues, ERISA, Life Insurance

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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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Fifth Circuit Maritime Case Will Set National Standard

In McBride v. Estis Well Service LLC, a divided Fifth Circuit sitting en banc held that punitive damages are not recoverable by an injured seaman or his heirs under the Jones Act or general maritime law of…more

Employer Liability Issues, En Banc Review, Jones Act, Punitive Damages, Wrongful Death

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Just the Fax: Illinois Appellate Court Concerned That TCPA Settlement Between Insured and Class Action Plaintiffs May Be Collusive

An all too familiar scenario: an insurer believes there is no coverage for a claim, but has a duty to defend its insured. In these situations, an insurer often pays for the insured’s independently-selected defense counsel and…more

Class Action, Declaratory Judgments, Duty to Defend, Insurers, Outside Counsel

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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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Fifth Circuit Maritime Case Will Set National Standard

In McBride v. Estis Well Service LLC, a divided Fifth Circuit sitting en banc held that punitive damages are not recoverable by an injured seaman or his heirs under the Jones Act or general maritime law of…more

Employer Liability Issues, En Banc Review, Jones Act, Punitive Damages, Wrongful Death

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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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Guide to Class Actions in Latin America

LATIN AMERICAN COUNTRIES HAVE SEEN nothing like the mass class action litigation in the US. That is not to say that procedures are not in place for the protection of collective rights and interests. The focus across Latin…more

Class Action, Collective Actions, Latin America

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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 - October 2014

This issue of the Credit Crunch Digest focuses on estimated Forex-related fines and exposure; requests by U.K. authorities for additional funding to investigate rate-rigging and Forex manipulation; a guilty plea in connection…more

Bank of America, Barclays, Bernie Madoff, Citigroup, Class Action

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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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“Rip & Run” Asbestos Abatement Not Taken Lightly By the U.S. Government

On November 12, 2014, the U.S. Court of Appeals, Second Circuit, ruled on the Northern District of New York’s sentencing of an air monitoring contractor criminally prosecuted for “rip & run” asbestos abatement projects, i.e.,…more

Appeals, Asbestos, Contaminated Properties, Contractors, Criminal Prosecution

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You May Have Stolen the Advertising Database, But You Still Have No Advertising Idea

In Liberty Corporate Capital Ltd. v. Security Safe Outlet, 2014 WL 3973726 (6th Cir. August 15, 2014), the Sixth Circuit Court of Appeals held that where a stolen customer database is used as the basis of an advertising…more

Advertising, Advertising Injury, Duty to Defend, Misappropriation, Popular

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Texas Supreme Court Recognizes Exceptions to Enforcement of No-Damages-for-Delay Clauses

On August 29, 2014, in Zachry Construction Corp. v. Port of Houston Authority of Harris County, No. 12-0772, 2014 WL 4472616 (Tex. 2014), the Texas Supreme Court found that no-damages-for-delay clauses that purport to waive…more

Appeals, Construction Contracts, Construction Industry, Contractors, General Contractors

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Target Takes Aim at Consumers after Banks Win Opening Round

On Thursday, the attorney for Target Corporation (“Target”) made oral arguments in support of its motion to dismiss consumer claims stemming from the data breach it suffered late last year when hackers stole financial and…more

Data Breach, Data Protection, Motion to Dismiss, Standing, Target

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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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Lost Cargo is Dead Weight: Insurer Avoids Coverage Due to Breach of “Deadweight Warranty” in Marine Policy

In Hua Tyan Development Ltd v Zurich Insurance Co Ltd [2014] HKCFA 72, the Hong Kong Court of Final Appeal dismissed a marine insurance claim on grounds of breach of warranty by an insured…more

Appeals, Breach of Warranty, Hong Kong, Insurers

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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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60-Day Notices for Phthalate DINP Can Begin on December 12, 2014

As previously reported, Diisononyl phthalate (DINP) was added to the Proposition 65 list on December 12, 2013. This means under the Proposition 65 regulations that plaintiffs can begin serving companies with Proposition 65…more

Chemicals, Notice Requirements, Proposition 65

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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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"I'll Tell You What Really Happened": In the 6th Circuit, Experts Can Contradict Their Clients' Testimony

The weight of expert testimony in product liability cases can hardly be overstated. Because complex questions of scientific and medical causation often hold sway, juries are thirsty for someone to tell them what the evidence…more

Expert Testimony, Expert Witness, Rules of Civil Procedure

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One Expert In, One Expert Out in Illinois Asbestos Case

An Illinois federal judge recently approved only one of two well-known asbestos experts to testify in a former pipefitter’s asbestos exposure case. U.S. District Judge John Z. Lee of the Northern District of Illinois held that…more

Asbestos, Asbestos Litigation, Expert Testimony, Expert Witness, Subject Matter Experts

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The Seemingly Interminable Garlock Saga: Where Are We Now?

As reported in our February 2014 edition, the bankruptcy court estimating Garlock Sealing Technologies, LLC’s asbestos liability uncovered significant evidence “that the last 10 years of its participation in the tort system was…more

Asbestos, Asbestos Litigation, Asbestos Trust Claims, Commercial Bankruptcy, Evidence

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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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Mechanic’s Lien Reigns Supreme in the Battle of a Project Default? Not for a Waiving General

In what can only be described as a devastating result for a general contractor, the Fourth Appellate District held that a general contractor may prospectively waive the priority of a mechanic’s lien to the owner’s construction…more

Appeals, Construction Contracts, Construction Industry, Construction Loans, Foreclosure

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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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California Federal Court Dismisses CERCLA Claims and Strikes Request for Attorneys’ Fees

In N. Cal. River Watch v. Fluor Corp., __F.Supp.3d__, 2014 WL 4954638 (N.D. Cal. Oct. 2, 2014), a Northern California district court dismissed Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”)…more

Attorney's Fees, CERCLA, Contaminated Properties, Department of Toxic Substances Control, Environmental Remediation Costs

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Expect tort potholes for self-driving cars

While self-driving cars have the potential to significantly reduce auto accidents and injuries, autonomous and semi-autonomous vehicles do not fit neatly into the current motor vehicle and insurance regulatory regimes…more

Auto Insurance, Automotive Industry, DMV, Popular, Self-Driving Cars

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TCPA Exclusion Upheld: No Ambiguity, No Duty to Defend or Indemnify for a $10 Million Judgment

In James River Insurance Company v. Med Waste Management LLC, et al., Case No. 1:13-cv-23608-KMM, (U.S. Dist. S. D. Fla., September 22, 2014), the U.S. District Court for the Southern District of Florida upheld a Telephone…more

Advertising, Advertising Injury, Class Action, Commercial General Liability Policies, Faxes

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Credit Crunch Digest - October 2014

This issue of the Credit Crunch Digest focuses on estimated Forex-related fines and exposure; requests by U.K. authorities for additional funding to investigate rate-rigging and Forex manipulation; a guilty plea in connection…more

Bank of America, Barclays, Bernie Madoff, Citigroup, Class Action

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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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N.J. Federal Court Dismisses Environmental Suit Against Lockheed Martin for Lack of Health Threat

A New Jersey federal court recently dismissed an environmental suit against Lockheed Martin, rejecting the plaintiffs’ argument that any exposure to particular environmental contaminants is harmful. Leese v. Lockheed Martin…more

Contaminated Properties, Dismissals, Lockheed Martin, Toxic Exposure

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Using Unpaid Interns Can Land Your Company in Class Action Hot Water

A recent surge in lawsuits against well-known New York-based fashion retailers and media giants, such as Oscar de la Renta, LLC; Marc Jacobs International, LLC; Donna Karan International, Inc.; Calvin Klein, Inc.; Coach, Inc.;…more

Best Management Practices, Class Action, Coach Inc, Corporate Counsel, DLSE

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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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PTO’s Decision to Cancel Football Team’s “Redskins” Marks May Provide Only a Symbolic Victory

On June 18, 2014, the U.S. Patent and Trademark Office’s (PTO) administrative board held for the second time that six federal trademark registrations owned by the Washington Redskins franchise must be canceled on the grounds…more

Football, Redskins, Trademarks, USPTO

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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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Guide to Class Actions in Latin America

LATIN AMERICAN COUNTRIES HAVE SEEN nothing like the mass class action litigation in the US. That is not to say that procedures are not in place for the protection of collective rights and interests. The focus across Latin…more

Class Action, Collective Actions, Latin America

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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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Sandy in the Courts

Hurricane Sandy (also known as Superstorm Sandy) struck the northeast coast of the United States in October 2012, causing an estimated $65 billion* in property damage, including wind damage, severe flooding and power outages…more

Flood Insurance, Flooding, Hurricane Sandy, Natural Disasters, Property Damage

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California Federal District Court Grants Partial Dismissal to Suit Alleging Violations of the Endangered Species Act

Earlier this month, a federal district court in California partially granted motions to dismiss a second amended complaint filed by the Center for Biological Diversity and the Pesticide Action Network alleging that the…more

Critical Habitat, Endangered Species Act, EPA, Fish and Wildlife Service, Jurisdiction

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Using Unpaid Interns Can Land Your Company in Class Action Hot Water

A recent surge in lawsuits against well-known New York-based fashion retailers and media giants, such as Oscar de la Renta, LLC; Marc Jacobs International, LLC; Donna Karan International, Inc.; Calvin Klein, Inc.; Coach, Inc.;…more

Best Management Practices, Class Action, Coach Inc, Corporate Counsel, DLSE

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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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Upcoming Listing Decision on Northern Long-Eared Bat May Have Far-Reaching Impacts on Industry

On Tuesday, November 18, 2014, the U.S. Fish and Wildlife Service (“Service”) announced the reopening of the comment period on the Service’s proposed rule to list the northern long-eared bat (“NLEB”). 79 Fed. Reg. 68657. This…more

Comment Period, Endangered Species Act, Fish and Wildlife Service, Habitat Conservation Plan, Proposed Regulation

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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 Clarifies Harmless Error Standard in Civil Appeals

On November 13, 2014, the Florida Supreme Court answered the following certified question of great public importance in the negative: “In a civil appeal, shall error be held harmless where it is more likely than not that the…more

Appeals, Healthcare, Hospitals, Medical Malpractice, Negligence

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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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Upcoming Listing Decision on Northern Long-Eared Bat May Have Far-Reaching Impacts on Industry

On Tuesday, November 18, 2014, the U.S. Fish and Wildlife Service (“Service”) announced the reopening of the comment period on the Service’s proposed rule to list the northern long-eared bat (“NLEB”). 79 Fed. Reg. 68657. This…more

Comment Period, Endangered Species Act, Fish and Wildlife Service, Habitat Conservation Plan, Proposed Regulation

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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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California Passes New Data Breach Laws: Requirement to Offer Identity Theft Protection at No Cost, New Duties Imposed on “Maintainers” of Personal Information, and Sale of Social Security Numbers Banned

California added new provisions to its data breach law on October 1 by signing Bill AB 1710 into law. The amendment to California’s Civil Code (1) requires entities that experience a data breach to provide identity theft…more

Data Breach, Data Protection, Identity Theft, New Legislation, Notice Requirements

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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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Texas Supreme Court Upholds Class Representative's Authority to Dispose of Unclaimed Settlement Proceeds

A sharply divided Texas Supreme Court recently held that unclaimed class action settlement funds may be disposed of in the manner selected by the parties and are not subject to the state’s Unclaimed Property Act. In Highland…more

Class Action, Contractors, Liability Insurance, Settlement, Subcontractors

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Eastern District of Pennsylvania Finds No “Link” to Bad Faith in Excess Carrier’s Conduct Towards Sausage Company Insured

This month, the Eastern District of Pennsylvania held that excess carrier American Guarantee and Liability Insurance Company (“American Guarantee”) did not engage in bad faith conduct towards insured Maglio Fresh Foods…more

Bad Faith, Covenant of Good Faith and Fair Dealing, Insureds

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Insured Not Justified in Ignoring Claims-Made-and-Reporting Requirements

An insured’s attempt to circumvent the claims-made-and-reporting requirements of its professional liabilty policy, by arguing that the doctrine of promissory estoppel applied, was thwarted when a court ordered summary judgment…more

Estoppel, Insureds, Insurers, Professional Liability, Promissory Estoppel

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Areas of Practice
  • Administrative Law
  • Alternative Dispute Resolution (ADR)
  • Antitrust & Trade Regulation
  • Appellate Practice
  • Art, Entertainment, & Sports Law
  • Bankruptcy
  • Business Organizations
  • Business Torts
  • Class Action
  • Commercial Law & Contracts
  • Communications & Media Law
  • Construction Law
  • Debtor/Creditor
  • Energy & Utilities
  • Environmental Law
  • Finance & Banking
  • Government
  • Health
  • Immigration Law
  • Insurance
  • Intellectual Property
  • International Law & Trade
  • Labor & Employment Law
  • Litigation
  • Maritime Law
  • Mergers & Acquisitions
  • Products Liability
  • Professional Malpractice
  • Real Estate
  • Science, Computers, & Tech
  • Securities Law
  • Taxation
  • Toxic Torts
  • Zoning, Planning & Land Use
See more
Locations
Other U.S. Locations
  • California
  • D.C.
  • Florida
  • Illinois
  • New Jersey
  • New York
  • Texas
  • Washington
Other Countries
  • Bermuda
  • United Kingdom
Number of Attorneys

100+ Attorneys

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