Carlton Fields

SCOTUS Denies Review Regarding Pennsylvania Wal-Mart “Rest Break” Class Judgment

On April 4, the United States Supreme Court denied certiorari review of a $188 million class-action judgment returned against Wal-Mart in Pennsylvania state court and later upheld by the Pennsylvania Supreme Court regarding…more

Certiorari, Class Action, Dukes v Wal-Mart, Rest and Meal Break, SCOTUS

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Will Hillsborough County Adopt Mobility Fees in April?

Part of the years-long transportation funding debate appears to be reaching a conclusion. On March 24, Hillsborough County held a well-attended public workshop regarding implementing mobility fees, which are described as “a…more

Construction Industry, Fees, Florida, Impact Fees, Infrastructure

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Real Property, Financial Services & Title Insurance Update: Week Ending January 22, 2016

REAL PROPERTY UPDATE - Foreclosure/Condition Precedent: providing a notice of the assignment of mortgage loan, as required by section 559.715, Florida Statutes, is not a condition precedent to filing a mortgage foreclosure…more

Bank of America, Countrywide, Discovery, Foreclosure, Mortgages

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FinCEN’s Expanding Application of the Bank Secrecy Act and Anti-Money Laundering Regulations

The Financial Crimes Enforcement Network (FinCEN) is again flexing its regulatory muscles by increasing the breadth and scope of the types of entities regulated by the Bank Secrecy Act (BSA). Among other things, the BSA requires…more

Anti-Money Laundering, Bank Secrecy Act, Financial Institutions, FinCEN, Investment Adviser

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eCommerce Regulation, Bitcoin, Anti-Money Laundering, Shadow Insurance, 401(k) Litigation [Expect Focus – Vol. IV, Fall 2015]

IN THE SPOTLIGHT - - California Passes Life and Annuity Electronic Transactions Law LIFE INSURANCE - - Under a Spotlight, "Shadow Insurance" Lawsuit Fails Scrutiny - NAIC Evaluates Insurer’s Use of Variable…more

401k, Administrative Proceedings, Big Data, Bitcoin, BSA/AML

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For Excess Liability Insurers, Consent-to-Settle Clauses Still Count

When a liability insurer defends its insured under a reservation, recent decisions limit the insurer’s right to enforce a policy’s consent-to-settle clause. But can the reservation affect the rights of an excess carrier? And…more

Class Action, Consent Agreements, Insurance Industry, Insurance Litigation, Liability Insurance

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Georgia Court of Appeals Expands Lenders' Ability to Pursue Guarantor Deficiency Judgment Suits Beyond Foreclosure Confirmations

The Court of Appeals of Georgia further clarified Georgia's treatment of deficiency judgment suits against guarantors in instances where lenders cannot obtain foreclosure confirmations of secured property. Community & Southern…more

Appeals, Deficiency Judgments, Foreclosure, Guarantors

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Federal Court Issues $1 Million Contempt Award for Repeated Cell Phone Unlocking Misconduct

On March 18, United States District Judge Ursula Ungaro of the United States District Court for the Southern District of Florida entered an order against a Hong Kong-based company that was improperly distributing prohibited…more

Cell Phones, Contempt, Final Judgment, Hackers, Permanent Injunctions

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Trademarks in Cuba, Successful Whistleblowers, Big Data, Health Care Encryption, Jury Instruction Tips [Expect Focus – Vol. 1, Winter 2015]

IN THE SPOTLIGHT · Is your Company Ready to Comply with Encryption of Individually Identifiable Health Information? LIFE INSURANCE · STOLI Schemers Must Make Good on Damages Caused · At the State Level, Is a Fixed-Index…more

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CFPB Hits Credit Reporting Agency with $8 Million Penalty for FCRA Violations

The Consumer Financial Protection Bureau (“CFPB” or “Bureau”) recently ordered a Florida subprime credit reporting company and its owner to pay an $8 million civil penalty and to halt illegal practices in a December 3 Consent…more

CFPB, Civil Monetary Penalty, Consumer Reports, Credit Reporting Agencies, FCRA

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FTC's Big Data Report Provides Road Map for Insurers Using Big Data

On January 6, the Federal Trade Commission ("FTC") released a report entitled "Big Data: A Tool for Inclusion or Exclusion? Understanding the Issues" ("Report") that follows the FTC's September 15, 2014 workshop on "the…more

Big Data, Discrimination, FCRA, FTC, Insurance Industry

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Due Diligence in Cross-Border Acquisitions Paving the Road to Enter or Run Away From a Deal in Brazil

With the great majority of foreign jurisdictions already adopting U.S.-style acquisition documents in connection with business acquisitions, U.S. investors experience a larger sense of comfort in negotiating their equity…more

Acquisition Agreements, Acquisitions, Brazil, Contract Negotiations, Cross-Border Transactions

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Legislature Amends Evidence Code Provisions Governing Admission Of Expert Testimony

The Florida Legislature passed House Bill 7015, dealing with expert testimony, which has been signed into law by Governor Scott. Chapter 2013-107, Laws of Florida, amends Florida’s evidence code to conform to Rule 702 of the…more

Daubert Ruling, Depositions, Evidence, Expert Testimony, Kelly-Frye Test

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Florida Imposes Additional Unclaimed Property Requirements on Life Insurers

On April 12, Florida Governor Scott signed Senate Bill 0966 into law. SB 0966 amends the insurance benefits provisions of Florida’s Uniform Unclaimed Property Act, Fl. Stat. Section 717.107. These amendments effectively codify…more

Death Benefits, Florida, Insurance Industry, Insurance Regulations, Life Insurance

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They Didn’t Teach You This in Law School: Preserving Error as to PowerPoint Presentations at Trial

Today, it is rare for a trial to take place without the use of PowerPoint presentations. They most often appear during opening statement, the examination of experts, and closing argument. So let’s suppose that opposing counsel…more

Evidence, Record Preservation

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Real Property & Title Insurance Update: Week Ending March 25, 2016

REAL PROPERTY UPDATE - - Ad Valorem Taxation: lessee holding 99-year leasehold interest in unimproved land owned by government entity is not “equitable owner” and thus not liable for ad valorem property taxes pursuant to…more

Ad Valorem Tax, Deutsche Bank, E&O Insurance, Fidelity National Title Insurance Company, Foreclosure

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Deal Carefully With Bitcoins Until Legislation Catches Up

Interest in cryptocurrencies is growing, even after Mt. Gox, formerly the largest international bitcoin exchange, filed for bankruptcy in Japan following $473 million in losses. Bitcoin’s resulting drop in value, from a $1,000…more

Bitcoin, Virtual Currency

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Split Florida Court Withdraws Beauvais Opinion to Hold that Dismissal Without Prejudice of Foreclosure Action Does Not Bar Second Action More than 5 years Later

After a rare en banc oral argument, the court withdrew its earlier opinion and released a new en banc decision holding that dismissal of a foreclosure action accelerating payment on one default does not time-bar a subsequent…more

Deutsche Bank, Dismissals, En Banc Review, Foreclosure, Mortgage Lenders

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2015 Food Industry Decisions With Bite

Food for Thought is a review of significant court decisions affecting the food, beverage, dietary supplements and personal care products industry. Although many cases in this edition focus on class certification, others relate…more

Ascertainable Class, CAFA, Chobani Inc, Class Action, Class Certification

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Georgia Trial Court Limits the Protection of Georgia's Anti-SLAPP Statute

A recent opinion from the DeKalb County State Court, currently certified for appeal with the Supreme Court of Georgia, included a reminder that the protections afforded by Georgia's anti-SLAPP statute have limits. Georgia's…more

Anti-SLAPP, Government Investigations, Media, News Stories

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Employers May Face Significant Changes to Federal EEO-1 Reporting Requirements

On February 1, the U.S. Equal Employment Opportunity Commission (EEOC) published proposed revisions to the Employer Information Report (EEO-1) for private employers or government contractors with 100 or more employees. See 81…more

Data Collection, EEO-1, EEOC, Pay Discrimination, Reporting Requirements

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Florida District Court Affirms Bankruptcy Court Bar Order In Favor Of Former Ds & Os

On September 24, Southern District of Florida District Court Judge James I. Cohn issued an opinion affirming an order approving the settlement of a debtor’s breach of fiduciary duty, corporate waste, and mismanagement claims…more

Bankruptcy Court, Board of Directors, Breach of Duty, Class Action, Commercial Bankruptcy

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Class Certified in Unique Fixed Indexed Annuity Case

The creative theories of liability and damages on display in the recent certification of multiple classes suggest that the long run of annuity class actions is not over yet. Plaintiff in Abbit v. ING USA Annuity and Life…more

Annuities, Breach of Contract, Class Action, Class Certification, Fiduciary Duty

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Laws Governing Data Security and Privacy – U.S. Jurisdictions at a Glance (updated for 2016)

The chart blow constitutes a summary of the laws of various jurisdictions that govern data breach notifications. Please see full Publication below for more information…more

Breach Notification Rule, Cause of Action Accrual, Data Breach, Data Security, Jurisdiction

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Hypothetically Speaking, Mr. Insurance Commissioner, There Is No Need To Answer

A recent case pitted two State of Florida agencies involved in insurance regulation against one another, and resulted in a decision by the appellate court that the Insurance Commissioner could not be compelled to appear as a…more

Appeals, Depositions, Insurance Commissioners, Insurance Industry, Witness

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The Reply Brief: Turning "Getting the Last Word" into "Getting the Win"

When you are the appellant, you always have the burden of persuasion in seeking a reversal. Even on a de novo review, you are starting at least a step behind, psychologically. A reply brief may be the last word and the last…more

Appeals, Litigation Strategies

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New FIRPTA Exceptions Provide Opportunities for Foreign Pensions and Investment Funds

The Foreign Investment in Real Property Tax Act of 1980 (FIRPTA) authorized the United States to tax foreign persons on the gain from the disposition of U.S. real property or U.S. real property interests (USRPIs). Recently, the…more

FIRPTA, Pension Funds, Protecting Americans from Tax Hikes (PATH) Act, Real Estate Market, REIT

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Eleventh Circuit Affirms Summary Judgment for Insurer Based on "Other Capacity" Exclusion

On June 22, the Eleventh Circuit affirmed the grant of summary judgment in favor of National Union Insurance Company of Pittsburgh, Pa., in an action where the insured sought $10 million in coverage under a D&O policy. The court…more

Corporate Officers, D&O Insurance, Fiduciary Duty, Insurance Litigation, Shareholder Litigation

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Ninth Circuit Leaves it to Policyholder to Pay Eddie Haskell’s Attorneys’ Fees

Moral hazard lurks around the edges of many disputes about liability coverage. Everyone agrees in principle that insurance shouldn’t help bad actors benefit from their wrongdoing, but parties often clash over where the principle…more

Actors, Attorney's Fees, Class Action, Commercial General Liability Policies, Compensatory Damages

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The HIPAA Audits are Coming, The HIPAA Audits are Coming! Five Steps to Prepare for a HIPAA Audit

The Office for Civil Rights (OCR) of the U.S. Department of Health and Human Services (HHS) recently announced the long-awaited launch of phase 2 of HIPAA’s audit program. The program will target all types of covered entities,…more

Business Associates, Covered Entities, Health Care Providers, HIPAA, HIPAA Audits

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No Contractor Is An Island: Florida Court Narrowly Applies “Your Work” Exclusion

When an insurer issues a Commercial General Liability policy to a contractor, the policy typically excludes coverage for the cost of repairing or replacing the contractor’s own defective work, but covers the cost of repairing…more

Commercial General Liability Policies, Construction Defects, Construction Industry, Faulty Workmanship, Insurance Industry

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Smooth Operators: Seventh Circuit Untangles Objections and Affirms Settlement of Hair Product Class

The Seventh Circuit Court of Appeals affirmed a class settlement over objection in a case involving a hair-smoothing product (“the Smoothing Kit”) that allegedly destroyed users’ hair and burned their scalps. Plaintiffs sued…more

Class Action, Class Members, Reimbursements, Settlement Agreements, Unilever

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Expect Focus – International, Summer 2015

In This Issue: - TTIP’s Impact on U.S. and EU Trade Relations - Proposed Innovation Box Legislation - Justice Department Recovers Nearly $6 Billion From False Claims Act Cases in 2014 - Rules of…more

Bilateral Investment Treaties, Cross-Border Transactions, Cuba, DOJ, EU

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Q&A With Carlton Fields' Gregory Cesarano

At Carlton Fields, Greg Cesarano focuses his practice on defense of corporations and manufacturers in products liability and commercial claims. He also leads Carlton Fields’ products and toxic tort liability practice group,…more

Class Action, Consumer Product Safety Commission (CPSC), DUI, FDCA, Food Labeling

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Cuba’s Underdeveloped Telecommunications Infrastructure Presents Opportunities

Following changes in U.S. foreign policy toward Cuba, announced by President Obama in December 2014, U.S. government officials and industry players have begun exploring the development and expansion of Cuba’s telecommunications…more

Barack Obama, Cuba, Executive Orders, Foreign Relations, Infrastructure

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SEC Issues Cybersecurity Risk Alert

On April 15th, the SEC's Office of Compliance Inspections and Examinations ("OCIE") issued a Risk Alert concerning its initiative to assess the cybersecurity preparedness of the securities industry. The Risk Alert states that…more

Cyber Attacks, Cybersecurity, Data Breach, Data Protection, OCIE

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Expect Focus - Regulators Are Watching: New Products, New Opportunities, New Risks - Volume III, Summer 2014

In This Issue: - IN THE SPOTLIGHT ..Standard CGL Policy Form Adds Data Breach Coverage Exclusion - LIFE INSURANCE ..Class Claims Against Lincoln National Barred in Section 419 Action – Again …more

Accredited Investors, Affordable Care Act, Burwell v Hobby Lobby, CFPB, Class Action

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Florida Public Records Law and Government Contractors 2016 Legislature Makes Significant Changes

Chapter 119, Florida Statutes (“the Act”), requires that every “agency” make its records available for inspection and copying to any member of the public who makes a request. Either refusal to provide such access or an…more

Attorney's Fees, Federal Contractors, Florida, FOIA, New Legislation

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Waiver By Confusion: When There Is a Split of Authority, Do You Know Where Your Court Stands?

Recognizing splits of authority and knowing where your court stands on the issue can be critical to avoid waiver. Lawson v. Sun Microsystems, Inc., 791 F.3d 754 (7th Cir. 2015), cert. denied, 84 USLW 3130 (U.S. 2016),…more

Litigation Strategies, Motion for Summary Judgment, Rule 50, Trial Practice Guidance, Waivers

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Trademarks in Cuba, Successful Whistleblowers, Big Data, Health Care Encryption, Jury Instruction Tips [Expect Focus – Vol. 1, Winter 2015]

IN THE SPOTLIGHT · Is your Company Ready to Comply with Encryption of Individually Identifiable Health Information? LIFE INSURANCE · STOLI Schemers Must Make Good on Damages Caused · At the State Level, Is a Fixed-Index…more

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The HIPAA Audits are Coming, The HIPAA Audits are Coming! Five Steps to Prepare for a HIPAA Audit

The Office for Civil Rights (OCR) of the U.S. Department of Health and Human Services (HHS) recently announced the long-awaited launch of phase 2 of HIPAA’s audit program. The program will target all types of covered entities,…more

Business Associates, Covered Entities, Health Care Providers, HIPAA, HIPAA Audits

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BP Settlement Claim

After years of litigation, BP Exploration & Production, Inc. and BP America Production Company (collectively, "BP") entered a class-wide settlement ("BP Settlement") that covers most businesses located in the Gulf Coast Region,…more

BP, Class Action, Eligibility, Gulf Oil Spill, Settlement

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Developments in Cybersecurity: Privacy Laws, Hacking Beyond Customer Data, and Communicating with Corporate Boards

I. Legal Exposure to Federal and State Privacy Laws - A. Federal Statutes and Enforcement - 1. Federal Trade Commission Act, 15 U.S.C. §§ 41-58 - The Federal Trade Commission (FTC) has emerged as the leading…more

Breach Notification Rule, Communications Act of 1934, Cybersecurity, Cybersecurity Information Sharing Act (CISA), Data Security

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Gatekeeper Liability of Inside Asset Management Attorneys "Appearing" Before the SEC

This article addresses the liability of inside attorneys at asset management companies— mutual fund sponsors, investment advisers, broker-dealers, life insurance companies—as gatekeepers under rules of the US Securities and…more

Appearance Policy, Arthur Anderson, Asset Management, Best Interest Contract Exemptions, Best Interest Standard

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Don’t Rest on Your Laurels: The Importance of Adapting Objections to Changed Circumstances

Without a crystal ball, trial lawyers can make objections only on the basis of what has occurred or what they reasonably expect might occur based on the facts and circumstances existing at the time. Litigation, however is a…more

Litigation Strategies, Motion To Strike, Objection Procedures, Standing Objections, Young Lawyers

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eCommerce Regulation, Bitcoin, Anti-Money Laundering, Shadow Insurance, 401(k) Litigation [Expect Focus – Vol. IV, Fall 2015]

IN THE SPOTLIGHT - - California Passes Life and Annuity Electronic Transactions Law LIFE INSURANCE - - Under a Spotlight, "Shadow Insurance" Lawsuit Fails Scrutiny - NAIC Evaluates Insurer’s Use of Variable…more

401k, Administrative Proceedings, Big Data, Bitcoin, BSA/AML

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Avoiding Trouble Following In Limine Rulings

Trials often are preceded or interrupted by hearings on motions in limine, where parties attempt to limit the evidence or arguments that their opponents can utilize in the trial. These hearings are often fast-paced, with rulings…more

Evidence, Expert Testimony, Litigation Strategies, Motions in Limine

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Real Property & Title Insurance Update: Weeks Ending April 15 & 22, 2016

REAL PROPERTY UPDATE - - Foreclosure/Standing: original allonge is part of original note and must be filed to prove standing; assignment of mortgage that did not assign note insufficient to establish standing to foreclose …more

Foreclosure, Standing, Statute of Limitations, Title Insurance

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Best Practices In Reducing Cost And Managing Risk In Class Action Litigation

Across industries, corporate counsel reported they spent $2.1 billion annually on class action lawsuits in 2012. This reflects a modest decline from $2.2 billion in 2011. On average, companies managed 5.1 class actions in 2012,…more

Class Action, Legal Costs, Risk Mitigation

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Administrative Closing Of Employment Discrimination Case Subject To Arbitration Agreement Bars Appellate Review

In Walker v. TA Operating, LLC et. al., Case No. 14-41046 (5th Cir. May 22, 2015), the Fifth Circuit Court of Appeals dismissed an appeal of an employment discrimination case subject to an arbitration agreement due to lack of…more

Appeals, Arbitration, Arbitration Agreements, Employment Discrimination, Federal Arbitration Act

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New Disclosures Required Regarding Subsurface Rights In Florida

On May 12, Florida Governor Rick Scott signed into law CS/CS/CS/HB 489, regarding subsurface rights disclosures. The bill creates a new Section 689.29, Florida Statutes. Beginning October 1, 2014, a seller of residential…more

Mineral Rights, Minerals, Natural Resources, Subsurface Estates

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Jobs Act Revamped by Fast Act

The Jumpstart Our Business Startup Act of 2012 (the "JOBS Act") was enacted on April 5, 2012 in an effort to make it easier for certain emerging growth companies (EGCs), generally defined as companies with annual gross revenues…more

Emerging Growth Companies, Fixing America’s Surface Transportation Act (FAST Act), Form S-1, IPO, JOBS Act

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Florida Law Mandates Police Body Camera Policies—Then Lets Agencies Fend for Themselves

Police body cameras are the hot new item on the procurement “wish lists” of law enforcement agencies at all levels of government. Following well-publicized police encounters with citizens throughout the United States, hundreds…more

Body Worn Cameras, Data Breach, Law Enforcement, New Legislation, Policies and Procedures

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2015 Food Industry Decisions With Bite

Food for Thought is a review of significant court decisions affecting the food, beverage, dietary supplements and personal care products industry. Although many cases in this edition focus on class certification, others relate…more

Ascertainable Class, CAFA, Chobani Inc, Class Action, Class Certification

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Is It Time To Review, Retest, Or Amend Your Employee Benefit Plans? IRS Provides Same Sex Marriage Guidance For Retirement Plan Sponsors And Administrators

On June 26, 2013, when the Supreme Court determined that Section 3 of the federal Defense of Marriage Act (DOMA) was unconstitutional, the tax and benefit plan implications were unclear. Later, in Revenue Ruling 2013-17, the IRS…more

Benefit Plan Sponsors, DOMA, Employee Benefits, Employer Liability Issues, Plan Administrators

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Arbitrator, Not Court, Must Determine Arbitrability Of Dispute Under Reinsurance Participation Agreement

Adopting in part a magistrate judge’s recommendation, a federal court in Maine recently held that the enforceability of an arbitration clause in a reinsurance agreement must be determined by an arbitrator, as opposed to a…more

Arbitration, Insurance Industry, Mandatory Arbitration Clauses, Participation Agreements, Reinsurance

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eCommerce Regulation, Bitcoin, Anti-Money Laundering, Shadow Insurance, 401(k) Litigation [Expect Focus – Vol. IV, Fall 2015]

IN THE SPOTLIGHT - - California Passes Life and Annuity Electronic Transactions Law LIFE INSURANCE - - Under a Spotlight, "Shadow Insurance" Lawsuit Fails Scrutiny - NAIC Evaluates Insurer’s Use of Variable…more

401k, Administrative Proceedings, Big Data, Bitcoin, BSA/AML

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Managing Risk: Liability For The Criminal Acts Of Others

There is an ever-present possibility that a land owner may be held liable in damages for the injuries and consequences of criminal acts of strangers…more

Foreseeability, Land Owners, Landlords, Negligence, Premises Liability

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eCommerce Regulation, Bitcoin, Anti-Money Laundering, Shadow Insurance, 401(k) Litigation [Expect Focus – Vol. IV, Fall 2015]

IN THE SPOTLIGHT - - California Passes Life and Annuity Electronic Transactions Law LIFE INSURANCE - - Under a Spotlight, "Shadow Insurance" Lawsuit Fails Scrutiny - NAIC Evaluates Insurer’s Use of Variable…more

401k, Administrative Proceedings, Big Data, Bitcoin, BSA/AML

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How General is “General Aggregate?”

Although the terms are often used interchangeably, there are several key differences between umbrella and excess coverage. One such distinction is that an umbrella policy can apply to multiple underlying policies. This makes it…more

Auto Insurance, Commercial General Liability Policies, Denial of Insurance Coverage, Excess Policies, Insurance Industry

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Expect Focus - Catching The Next Wave, Regulatory and Litigation Developments - Volume II, Spring 2014

In This Issue: - IN THE SPOTLIGHT ..Private Equity: The Next Wave of SEC Enforcement Actions? - LIFE INSURANCE ..How to Fight a STOLI Scheme: Court Rulings Offer Clues ..STOA Schemes Face Increased…more

Compliance, Enforcement, Enforcement Actions, PBGC, Private Equity

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EXPECT FOCUS: Onboard Technology, NAIC Cybersecurity, DOL, ACA Litigation, SEC Regulation (Vol. III, Summer 2015)

In This Issue: IN THE SPOTLIGHT - - Your Data Breach Collided With My Personal Injury Coverage LIFE INSURANCE - - Phantom Injury Dooms “Shadow Insurance” Case - Latest NAIC Cybersecurity News…more

AIG, ALJ, Auto Body Shop, Bailout, Banking Sector

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IRS Revokes Ruling That Imposed Excise Tax On Wholly Foreign Reinsurance Transactions

The Internal Revenue Service recently revoked a 2008 ruling that a 1% excise tax under section 4371(3) of the Internal Revenue Code applied to “reinsurance premiums paid by one foreign insurer or reinsurer to another.” The IRS’s…more

Excise Tax, Foreign Insurance Companies, Insurance Industry, Internal Revenue Code (IRC), IRS

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Real Property & Title Insurance Update: Weeks Ending April 15 & 22, 2016

REAL PROPERTY UPDATE - - Foreclosure/Standing: original allonge is part of original note and must be filed to prove standing; assignment of mortgage that did not assign note insufficient to establish standing to foreclose …more

Foreclosure, Standing, Statute of Limitations, Title Insurance

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U.S. Pre-Immigration Tax Planning

The U.S. Pre-Immigration Tax Planning brochure provides information on the U.S. Tax Code, income tax, estate and gift tax, and pre-immigration considerations, in addition to real-world examples. There are no adverse…more

Capital Gains, Estate Tax, Foreign Tax Credits, Foreign Taxpayers, Gift Tax

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Trademarks in Cuba, Successful Whistleblowers, Big Data, Health Care Encryption, Jury Instruction Tips [Expect Focus – Vol. 1, Winter 2015]

IN THE SPOTLIGHT · Is your Company Ready to Comply with Encryption of Individually Identifiable Health Information? LIFE INSURANCE · STOLI Schemers Must Make Good on Damages Caused · At the State Level, Is a Fixed-Index…more

See All Updates »

eCommerce Regulation, Bitcoin, Anti-Money Laundering, Shadow Insurance, 401(k) Litigation [Expect Focus – Vol. IV, Fall 2015]

IN THE SPOTLIGHT - - California Passes Life and Annuity Electronic Transactions Law LIFE INSURANCE - - Under a Spotlight, "Shadow Insurance" Lawsuit Fails Scrutiny - NAIC Evaluates Insurer’s Use of Variable…more

401k, Administrative Proceedings, Big Data, Bitcoin, BSA/AML

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“‘Tis As Easy As Lying”: Pennsylvania Court Rescinds Policy of Corporate Giant

Claims, arguments and tactics that are familiar from coverage disputes with consumers are increasingly being used against carriers by large corporate insureds—often with the assistance of well-known plaintiffs’ firms. Once in a…more

Commercial Insurance Policies, Food Contamination, Food Manufacturers, Heinz, Insurance Industry

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New Condominium Exemption To The Interstate Land Sales Full Disclosure Act

As we previously reported, a significant amendment to the Interstate Land Sales Full Disclosure Act (ILSA) becomes effective on March 26, 2015. HR2600 adds an exemption from registration for a “condominium unit.” This is a…more

Condominiums, Exemptions, ILSA

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Eleventh Circuit Affirms Summary Judgment for Insurer Based on "Other Capacity" Exclusion

On June 22, the Eleventh Circuit affirmed the grant of summary judgment in favor of National Union Insurance Company of Pittsburgh, Pa., in an action where the insured sought $10 million in coverage under a D&O policy. The court…more

Corporate Officers, D&O Insurance, Fiduciary Duty, Insurance Litigation, Shareholder Litigation

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A Different Kind of Data Breach—Loss or Disclosure of Company Information by Employee Theft

Data breaches are all over the news, but those stories most often cover high-profile cybersecurity breaches that result from the malicious efforts of hackers or other outsiders. Just as insidious, and more likely to occur, are…more

Best Practices, Confidential Information, Cybersecurity, Data Breach, Former Employee

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Southern District of California Diffuses Hairdryer Class

The Southern District of California decertified a nationwide consumer product class due to material differences between the state laws applicable to the claims. The plaintiff in Czuchaj v. Conair Corp. alleged a defect in…more

Class Action, Class Certification, Consumers Legal Remedies Act, Implied Warranties, Magnuson-Moss Act

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eCommerce Regulation, Bitcoin, Anti-Money Laundering, Shadow Insurance, 401(k) Litigation [Expect Focus – Vol. IV, Fall 2015]

IN THE SPOTLIGHT - - California Passes Life and Annuity Electronic Transactions Law LIFE INSURANCE - - Under a Spotlight, "Shadow Insurance" Lawsuit Fails Scrutiny - NAIC Evaluates Insurer’s Use of Variable…more

401k, Administrative Proceedings, Big Data, Bitcoin, BSA/AML

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None Of Your Business: Eleventh Circuit Enters A Gray Area For Contract Liability Exclusions

Businesses have responsibilities; they buy liability insurance to cover losses that arise if they fail to perform them all. Businesses also “assume” responsibilities under contracts; those responsibilities are typically…more

Blue Cross, Breach of Contract, Commercial General Liability Policies, Corporate Counsel, Insurance Industry

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What Employers Must Know About Wage and Hour Law

This year, according to a recent Syracuse University study, federal courts are on track to handle a record number of wage-and-hour lawsuits stemming from violations of the Fair Labor Standards Act (FLSA), which establishes…more

DOL, FICA Taxes, FLSA, Independent Contractors, Minimum Wage

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Expect Focus - ONLINE HEALTH CARE: NOT SO FAST Telemedicine Hits A Few Speed Bumps, Volume II, Spring 2015

In This Issue: - IN THE SPOTLIGHT • Risky Business: Common Cyber Security Risks, Expensive Consequences - LIFE INSURANCE • Ninth Circuit Finds Bonus Indexed Annuity Delivers Exactly What…more

Accounting Fraud, Annuities, Bad Faith, Broker-Dealer, Captive Insurance Company

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Florida Appellate Court Embraces Daubert Standard And Provides First In-Depth Analysis Under New Law

Last week, the Third District Court of Appeal resolved any questions concerning the applicability of the Daubert standard in Florida following the legislative changes to Florida's evidence code in July 2013…more

Appeals, Daubert Hearing, Daubert Standards, Evidence, Expert Testimony

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Deal Carefully With Bitcoins Until Legislation Catches Up

Interest in cryptocurrencies is growing, even after Mt. Gox, formerly the largest international bitcoin exchange, filed for bankruptcy in Japan following $473 million in losses. Bitcoin’s resulting drop in value, from a $1,000…more

Bitcoin, Virtual Currency

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4 Types of IP Your Startup Must Protect

Intellectual Property (IP) is often an early stage venture’s most valuable asset. But who really “owns” the IP a startup uses? In many cases the answer isn’t clear, and problems frequently aren’t identified until an investor or…more

Authorship, Brand, Inventions, Non-Disclosure Agreement, Popular

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Eleventh Circuit Says Merely Acquiring Debt in Default is Not Enough to Qualify As "Debt Collector" Under FDCPA

In Davidson v. Capital One Bank (USA), N.A., the Eleventh Circuit affirmed a district court’s dismissal of an amended complaint against Capital One Bank (USA), N.A. (“Capital One”) for alleged violations of the Fair Debt…more

Amended Complaints, Capital One, Debt, Debt Buyers, Debt Collection

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Biting The Hand That Fed Them – And Winning

Choice of law is frequently a prominent – and sometimes a pivotal – factor in a court’s analysis of whether to grant or deny certification of a nationwide or multi-state class. Whether a federal court may apply one state’s…more

Class Action, Class Certification, Predominance Requirement, Rule 23(b)(3)

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A Model Preservation Test for Race-Based Peremptory Challenges

Preserving error during voir dire can be tricky. In jurisdictions like Florida, certain steps must be taken to preserve objections, including those related to pretextual peremptory challenges. On March 18, Florida’s Second…more

Jurisdiction, Jury Selection, Jury Trial, Litigation Strategies, Objection Procedures

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Trademarks in Cuba, Successful Whistleblowers, Big Data, Health Care Encryption, Jury Instruction Tips [Expect Focus – Vol. 1, Winter 2015]

IN THE SPOTLIGHT · Is your Company Ready to Comply with Encryption of Individually Identifiable Health Information? LIFE INSURANCE · STOLI Schemers Must Make Good on Damages Caused · At the State Level, Is a Fixed-Index…more

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Questions About Delivery Drivers’ Employee/Independent Contractor Status Preclude Commonality and Predominance Findings

A New Jersey district court denied certification of a putative class of furniture delivery drivers and helpers employed by various transportation companies (the “Driver/Helpers”) and individuals who owned those transportation…more

Class Certification, Commonality, Corporate Counsel, Independent Contractors, Misclassification

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The CFPB Takes First Enforcement Action Related to Data Security Practices

The Consumer Financial Protection Bureau (CFPB ) has taken its first UDAAP action against a consumer financial service provider related to data security practices. Since its launch in December 2009, Dwolla, Inc. ("Dwolla"), an…more

CFPB, Data Security, Dwolla, Enforcement Actions, Financial Services Industry

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EXPECT FOCUS: Onboard Technology, NAIC Cybersecurity, DOL, ACA Litigation, SEC Regulation (Vol. III, Summer 2015)

In This Issue: IN THE SPOTLIGHT - - Your Data Breach Collided With My Personal Injury Coverage LIFE INSURANCE - - Phantom Injury Dooms “Shadow Insurance” Case - Latest NAIC Cybersecurity News…more

AIG, ALJ, Auto Body Shop, Bailout, Banking Sector

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Supreme Court Once Again Upholds Class Arbitration Waiver

On June 20, 2013, the United States Supreme Court issued its decision in American Express Co. v. Italian Colors Restaurant, holding that the Federal Arbitration Act (“FAA”) “does not permit courts to invalidate a contractual…more

American Express, American Express v Italian Colors Restaurant, Arbitration, Arbitration Agreements, AT&T Mobility

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California District Court Holds Class Action Alleging Securities Act Claims Not Removable Under SLUSA

The United States District Court for the Northern District of California recently clarified the criteria for removal of a securities class action filed in state court under the Securities Act of 1933, 15 U.S.C. §§ 77a, et seq…more

Class Action, Initial Public Offerings, IPO, Motion to Remand, Securities Act

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Real Property & Title Insurance Update: Weeks Ending April 15 & 22, 2016

REAL PROPERTY UPDATE - - Foreclosure/Standing: original allonge is part of original note and must be filed to prove standing; assignment of mortgage that did not assign note insufficient to establish standing to foreclose …more

Foreclosure, Standing, Statute of Limitations, Title Insurance

See All Updates »

Construction Case Law Update - January 11, 2016

CGL Policies, Supplemental Payment Provision, and Attorney’s Fees - A contractor’s commercial general liability insurer appealed a final judgment in favor of homeowners that damages awarded to them in a construction defect suit…more

Anti-Assignment Clauses, Commercial General Liability Policies, Construction Defects, Construction Industry, Insurance Industry

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Ninth Circuit Leaves it to Policyholder to Pay Eddie Haskell’s Attorneys’ Fees

Moral hazard lurks around the edges of many disputes about liability coverage. Everyone agrees in principle that insurance shouldn’t help bad actors benefit from their wrongdoing, but parties often clash over where the principle…more

Actors, Attorney's Fees, Class Action, Commercial General Liability Policies, Compensatory Damages

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EXPECT FOCUS: Onboard Technology, NAIC Cybersecurity, DOL, ACA Litigation, SEC Regulation (Vol. III, Summer 2015)

In This Issue: IN THE SPOTLIGHT - - Your Data Breach Collided With My Personal Injury Coverage LIFE INSURANCE - - Phantom Injury Dooms “Shadow Insurance” Case - Latest NAIC Cybersecurity News…more

AIG, ALJ, Auto Body Shop, Bailout, Banking Sector

See All Updates »

Expect Focus - ONLINE HEALTH CARE: NOT SO FAST Telemedicine Hits A Few Speed Bumps, Volume II, Spring 2015

In This Issue: - IN THE SPOTLIGHT • Risky Business: Common Cyber Security Risks, Expensive Consequences - LIFE INSURANCE • Ninth Circuit Finds Bonus Indexed Annuity Delivers Exactly What…more

Accounting Fraud, Annuities, Bad Faith, Broker-Dealer, Captive Insurance Company

See All Updates »

In Flannery v. SEC, First Circuit Rebukes Commission, Signals Departure from Deferential Review

On December 8, 2015, the U.S. Court of Appeals for the First Circuit ruled in Flannery v. SEC that the Securities and Exchange Commission lacked substantial evidence in finding securities law violations by two executives in…more

ALJ, Corporate Counsel, Popular, RMBS, SEC

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Food for Thought: Ninth Circuit Reinstates 'Natural' Labeling Class Suit Against Hain Celestial - Balser v. The Hain Celestial Group, Inc., No. 14-55074 (9th Cir. Feb. 22, 2016)

The Ninth Circuit held that a consumer’s definition of “natural” as alleged in the complaint is sufficient for the court’s determination of the sufficiency of the pleading with respect to a motion to dismiss. In Balser, putative…more

All Natural, False Advertising, Food Labeling, Food Manufacturers, Food Marketing

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Northern District of Illinois Declines To Restrict Defense Counsel’s Communications With Putative Class Members

The Northern District of Illinois refused to restrict a defense counsel’s communications with putative class members, reasoning that the communications were not misleading or coercive. The case arose when a “romantic getaway”…more

Class Action, Putative Class Actions

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In Overhead and Profit Class Actions, The Third Trade’s No Longer The Charm

When repairs to a damaged home reach a certain level of complexity, they call for supervision by a general contractor, who receives a percentage of the actual repair costs as “general contractor’s overhead and profit” or “GCOP.”…more

Contractors, General Contractors, Insurance Litigation, Policy Exclusions, Property Damage

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Cuba: The Risks and Rewards for U.S. Businesses

Background - Last week, the Obama Administration announced that the President intends to visit Cuba next month. He will find a political mixed bag of optimism and resignation. American businesses will find an equally…more

Cuba, Embargo, Export Controls, Obama Administration, Popular

See All Updates »

eCommerce Regulation, Bitcoin, Anti-Money Laundering, Shadow Insurance, 401(k) Litigation [Expect Focus – Vol. IV, Fall 2015]

IN THE SPOTLIGHT - - California Passes Life and Annuity Electronic Transactions Law LIFE INSURANCE - - Under a Spotlight, "Shadow Insurance" Lawsuit Fails Scrutiny - NAIC Evaluates Insurer’s Use of Variable…more

401k, Administrative Proceedings, Big Data, Bitcoin, BSA/AML

See All Updates »

EXPECT FOCUS: Onboard Technology, NAIC Cybersecurity, DOL, ACA Litigation, SEC Regulation (Vol. III, Summer 2015)

In This Issue: IN THE SPOTLIGHT - - Your Data Breach Collided With My Personal Injury Coverage LIFE INSURANCE - - Phantom Injury Dooms “Shadow Insurance” Case - Latest NAIC Cybersecurity News…more

AIG, ALJ, Auto Body Shop, Bailout, Banking Sector

See All Updates »

Storm Clouds Gather for Life Insurers’ Cost of Insurance Rate Increases

For more than two decades any insurer increasing its cost of insurance (COI) rates on its universal life policies was likely to be met with policyholder lawsuits and even, occasionally, regulatory resistance. Until the past…more

Insurance Industry, Insurance Rates, Life Insurance

See All Updates »

U.S. Pre-Immigration Tax Planning

The U.S. Pre-Immigration Tax Planning brochure provides information on the U.S. Tax Code, income tax, estate and gift tax, and pre-immigration considerations, in addition to real-world examples. There are no adverse…more

Capital Gains, Estate Tax, Foreign Tax Credits, Foreign Taxpayers, Gift Tax

See All Updates »

Timing is Everything: When Is The Right Time To Move To Remand?

It may not always be apparent whether a potential basis for remand is procedural or impacts subject matter jurisdiction. As a recent federal case from Kentucky demonstrates, identifying issues and classifying them early is…more

Diversity Jurisdiction, Objection Procedures, Remand

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4 Reasons Why Companies Can Ask Exempt Employees to Work for 'Free'

The leaked Urban Outfitters memo asking salaried employees to volunteer one or more weekend shifts at an Urban Outfitters fulfillment center to pick, pack and ship merchandise is really no story at all, despite Internet shaming…more

Exempt-Employees, FLSA, Popular, Threshold Requirements, Urban Outfitters

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Close But No Cigar: Fourth Circuit Finds Waiver Where Party Failed to Adequately Press Defense

With regard to preservation of an issue for appeal, how close is close enough? This issue was examined in a recent decision by the Fourth Circuit Court of Appeals in CoreTel Virginia, LLC v. Verizon Virginia, LLC, No. 15-1008,…more

Appeals, Evidence, Pleadings, Statute of Limitations, Verizon

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Florida Imposes Additional Unclaimed Property Requirements on Life Insurers

On April 12, Florida Governor Scott signed Senate Bill 0966 into law. SB 0966 amends the insurance benefits provisions of Florida’s Uniform Unclaimed Property Act, Fl. Stat. Section 717.107. These amendments effectively codify…more

Death Benefits, Florida, Insurance Industry, Insurance Regulations, Life Insurance

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New FIRPTA Exceptions Provide Opportunities for Foreign Pensions and Investment Funds

The Foreign Investment in Real Property Tax Act of 1980 (FIRPTA) authorized the United States to tax foreign persons on the gain from the disposition of U.S. real property or U.S. real property interests (USRPIs). Recently, the…more

FIRPTA, Pension Funds, Protecting Americans from Tax Hikes (PATH) Act, Real Estate Market, REIT

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Expansion of Fiduciary Duties Will Impact Florida LLCs – Is it Time to Update Your Operating Agreement?

Amendments to the Florida Revised Limited Liability Company Act go into effect on July 1, 2015. It governs all limited liability companies in the state of Florida. Effective July 1, 2015, the Act was amended, in part, to change…more

Fiduciary Duty, Limited Liability Companies, LLC, New Amendments, Operating Agreements

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Closing Gaps? FinCEN Proposes Anti-Money Laundering Rule for Investment Advisers

After more than a decade of delay, the Financial Crimes Enforcement Network (FinCEN) of the Department of Treasury issued a notice of proposed rulemaking that would require registered investment advisers to establish anti-money…more

Anti-Money Laundering, Banking Sector, Banks, BSA/AML, Compliance

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New Statute Clarifies Florida’s Judgment Execution Law

Florida’s proceedings supplementary statute (Fla. Stat. 56.29) provides a wide range of collection options to judgment creditors. Over the years, courts inconsistently applied various parts of the statute, which had remained…more

Consumer Bankruptcy, Debt Collection, Florida, Judgment Creditors

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Federal Court Issues $1 Million Contempt Award for Repeated Cell Phone Unlocking Misconduct

On March 18, United States District Judge Ursula Ungaro of the United States District Court for the Southern District of Florida entered an order against a Hong Kong-based company that was improperly distributing prohibited…more

Cell Phones, Contempt, Final Judgment, Hackers, Permanent Injunctions

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Seventh Circuit Holds No Agreement Entered Into With Respect To On-Line Contract

This case arises from an appeal from an Illinois federal district court, which ruled that TransUnion, a credit reporting agency, did not give a putative class of its website users proper notice of an arbitration agreement, and…more

Arbitration, Arbitration Agreements, Corporate Counsel, Credit Reporting Agencies, Putative Class Actions

See All Updates »

Expect Focus - ONLINE HEALTH CARE: NOT SO FAST Telemedicine Hits A Few Speed Bumps, Volume II, Spring 2015

In This Issue: - IN THE SPOTLIGHT • Risky Business: Common Cyber Security Risks, Expensive Consequences - LIFE INSURANCE • Ninth Circuit Finds Bonus Indexed Annuity Delivers Exactly What…more

Accounting Fraud, Annuities, Bad Faith, Broker-Dealer, Captive Insurance Company

See All Updates »

Objecting to a Magistrate Judge's Report and Recommendation

An unpublished opinion from the Tenth Circuit Court of Appeals in January 2016 caught our eye because it collected various established preservation-of-error principles for objecting to a magistrate judge's report and…more

Litigation Strategies, Objection Procedures, Trial Preparation, Trials

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SEC Provides Long-Awaited Guidance on Fund Distribution and Sub-Accounting Fees

Guidance Update No. 2016-01, published this month by the SEC’s Division of Investment Management, provides extensive guidance concerning the possibility that payments from mutual funds are being used to promote sales of the…more

Fund Distribution, Intermediaries, Investment Company Act of 1940, Mutual Funds, SEC

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Q&A With Carlton Fields' Dave Leonard

Dave Leonard, a shareholder with Carlton Fields, has experience in civil litigation, arbitration and negotiation of disputes. Q: What is the most challenging case you have worked on and what made it…more

Contract Drafting, Contract Interpretation, Expert Testimony, Insurance Industry, Law School

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New Legislation Enacted to Protect the Use of Private Property

In the 2015 session, the Legislature passed and the Governor signed House Bill 383 to address unconstitutional conditions by government agencies on the use of private property in Florida. This expands the existing Bert Harris…more

Conservation, Exactions, Koontz v St John's River Water Management, New Legislation, Private Property

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Florida Court Rejects "Date of Death" Trigger for Escheating Life Insurance Death Benefits Under Florida's Unclaimed Property Act

On August 5, Florida's First District Court of Appeal reversed a ruling issued by Florida's Department of Financial Services ("DFS") that would have triggered an insurer's duty to escheat life insurance benefits under Florida's…more

Death Benefits, Escheat, Life Insurance, Unclaimed Property

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Real Property, Financial Services & Title Insurance Case Law Update: Week Ending July 19, 2013

I. FLORIDA STATE CASES – STEFANIE LINCOLN - Litigation Privilege: litigation privilege, which protects actions taken in the course of and related to judicial proceedings from civil liability, applies to causes of action…more

Abuse of Process, Condemnation, Malicious Prosecution, RESPA, Title Insurance

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Will Hillsborough County Adopt Mobility Fees in April?

Part of the years-long transportation funding debate appears to be reaching a conclusion. On March 24, Hillsborough County held a well-attended public workshop regarding implementing mobility fees, which are described as “a…more

Construction Industry, Fees, Florida, Impact Fees, Infrastructure

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New Condominium Exemption To The Interstate Land Sales Full Disclosure Act

As we previously reported, a significant amendment to the Interstate Land Sales Full Disclosure Act (ILSA) becomes effective on March 26, 2015. HR2600 adds an exemption from registration for a “condominium unit.” This is a…more

Condominiums, Exemptions, ILSA

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U.S. Pre-Immigration Tax Planning

The U.S. Pre-Immigration Tax Planning brochure provides information on the U.S. Tax Code, income tax, estate and gift tax, and pre-immigration considerations, in addition to real-world examples. There are no adverse…more

Capital Gains, Estate Tax, Foreign Tax Credits, Foreign Taxpayers, Gift Tax

See All Updates »

What’s New In Risk Based Corrective Action In Florida?

Over the last several years, under the direction of Governor Rick Scott, the Florida Department of Environmental Protection (FDEP) has embarked on an aggressive program to streamline regulatory processes across program areas,…more

Contaminated Properties, Corrective Actions, Department of Environmental Protection, Environmental Policies

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SCOTUS Denies Review Regarding Pennsylvania Wal-Mart “Rest Break” Class Judgment

On April 4, the United States Supreme Court denied certiorari review of a $188 million class-action judgment returned against Wal-Mart in Pennsylvania state court and later upheld by the Pennsylvania Supreme Court regarding…more

Certiorari, Class Action, Dukes v Wal-Mart, Rest and Meal Break, SCOTUS

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Third Circuit Affirms Summary Judgment Of Captive Reinsurance Dispute As Being Time-Barred

In early January, the Third Circuit Court of Appeals affirmed summary judgment of a putative class action dispute regarding private mortgage insurance and captive reinsurance of the same by M&T. We previously blogged about this…more

Anti-Kickback Statute, Captive Insurance Company, Fee-Splitting, Insurance Industry, Mortgage Insurance

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eCommerce Regulation, Bitcoin, Anti-Money Laundering, Shadow Insurance, 401(k) Litigation [Expect Focus – Vol. IV, Fall 2015]

IN THE SPOTLIGHT - - California Passes Life and Annuity Electronic Transactions Law LIFE INSURANCE - - Under a Spotlight, "Shadow Insurance" Lawsuit Fails Scrutiny - NAIC Evaluates Insurer’s Use of Variable…more

401k, Administrative Proceedings, Big Data, Bitcoin, BSA/AML

See All Updates »

eCommerce Regulation, Bitcoin, Anti-Money Laundering, Shadow Insurance, 401(k) Litigation [Expect Focus – Vol. IV, Fall 2015]

IN THE SPOTLIGHT - - California Passes Life and Annuity Electronic Transactions Law LIFE INSURANCE - - Under a Spotlight, "Shadow Insurance" Lawsuit Fails Scrutiny - NAIC Evaluates Insurer’s Use of Variable…more

401k, Administrative Proceedings, Big Data, Bitcoin, BSA/AML

See All Updates »

eCommerce Regulation, Bitcoin, Anti-Money Laundering, Shadow Insurance, 401(k) Litigation [Expect Focus – Vol. IV, Fall 2015]

IN THE SPOTLIGHT - - California Passes Life and Annuity Electronic Transactions Law LIFE INSURANCE - - Under a Spotlight, "Shadow Insurance" Lawsuit Fails Scrutiny - NAIC Evaluates Insurer’s Use of Variable…more

401k, Administrative Proceedings, Big Data, Bitcoin, BSA/AML

See All Updates »

Expect Focus – International, Summer 2015

In This Issue: - TTIP’s Impact on U.S. and EU Trade Relations - Proposed Innovation Box Legislation - Justice Department Recovers Nearly $6 Billion From False Claims Act Cases in 2014 - Rules of…more

Bilateral Investment Treaties, Cross-Border Transactions, Cuba, DOJ, EU

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Supreme Court Won’t Resolve Multi-Circuit Split on Ascertainability Requirement

On February 29, the U.S. Supreme Court denied certiorari review in Mullins v. Direct Digital, LLC, No. 15-1776, an ascertainability case we previously covered when it was decided in the Seventh Circuit. In Mullins, a panel of…more

Ascertainable Class, Certiorari, Class Action, Class Certification, SCOTUS

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Florida Law Mandates Police Body Camera Policies—Then Lets Agencies Fend for Themselves

Police body cameras are the hot new item on the procurement “wish lists” of law enforcement agencies at all levels of government. Following well-publicized police encounters with citizens throughout the United States, hundreds…more

Body Worn Cameras, Data Breach, Law Enforcement, New Legislation, Policies and Procedures

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What You Must Know About Florida’s Commercial Mortgage Foreclosure Process

Introduction - Florida is a judicial foreclosure state. Mortgage foreclosures in Florida are “judicial proceedings,” and are governed by Section 45.031, Florida Statutes. Florida’s statutory judicial procedure allows a…more

Commercial Property Owners, Foreclosure, Mortgages

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2016 Federal Spending Bill Will Impact Immigration Programs

The fiscal year 2016 Department of Homeland Security (DHS) Appropriations Bill funds the Government’s immigration provisions, among others, through September 30, 2016. It will saddle many immigration programs with harsh fees and…more

Coast Guard, EB-5, H-1B, H-2B, L-1 Visas

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EXPECT FOCUS: Onboard Technology, NAIC Cybersecurity, DOL, ACA Litigation, SEC Regulation (Vol. III, Summer 2015)

In This Issue: IN THE SPOTLIGHT - - Your Data Breach Collided With My Personal Injury Coverage LIFE INSURANCE - - Phantom Injury Dooms “Shadow Insurance” Case - Latest NAIC Cybersecurity News…more

AIG, ALJ, Auto Body Shop, Bailout, Banking Sector

See All Updates »

New FIRPTA Exceptions Provide Opportunities for Foreign Pensions and Investment Funds

The Foreign Investment in Real Property Tax Act of 1980 (FIRPTA) authorized the United States to tax foreign persons on the gain from the disposition of U.S. real property or U.S. real property interests (USRPIs). Recently, the…more

FIRPTA, Pension Funds, Protecting Americans from Tax Hikes (PATH) Act, Real Estate Market, REIT

See All Updates »

Unsettled Questions Remain Under The SCRA

The Servicemembers Civil Relief Act (SCRA) protects active duty members of the military in civil actions, including foreclosures and collections. Section 533 of the Act applies to persons entering the military after incurring…more

Active Duty, Debt Collection, Default Judgment, Foreclosure, SCRA

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Real Property & Title Insurance Update: Weeks Ending April 15 & 22, 2016

REAL PROPERTY UPDATE - - Foreclosure/Standing: original allonge is part of original note and must be filed to prove standing; assignment of mortgage that did not assign note insufficient to establish standing to foreclose …more

Foreclosure, Standing, Statute of Limitations, Title Insurance

See All Updates »

Getting It Right The First Time: Presenting A Persuasive Argument Without Relying On The Court’s Familiarity With The Facts Or The Law

Even apart from the importance of assuring appellate review, properly preserving the record and carefully laying out one’s argument can have an immediate impact at the trial level. Very often, a litigator comes across a set…more

Appeals, Litigation Strategies, Trial Preparation, Trials

See All Updates »

Expect Focus - ONLINE HEALTH CARE: NOT SO FAST Telemedicine Hits A Few Speed Bumps, Volume II, Spring 2015

In This Issue: - IN THE SPOTLIGHT • Risky Business: Common Cyber Security Risks, Expensive Consequences - LIFE INSURANCE • Ninth Circuit Finds Bonus Indexed Annuity Delivers Exactly What…more

Accounting Fraud, Annuities, Bad Faith, Broker-Dealer, Captive Insurance Company

See All Updates »

California Employment Law and Arbitration: The Battle Intensifies

Tuesday, by a two-to-one vote, the Ninth Circuit joined the California Supreme Court in holding that Private Attorneys General Act (PAGA) claims are an exception to the Federal Arbitration Act. In Sakkab v. Luxottica Retail…more

Arbitration, AT&T Mobility, AT&T Mobility v Concepcion, CA Supreme Court, Class Action

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Trademarks in Cuba, Successful Whistleblowers, Big Data, Health Care Encryption, Jury Instruction Tips [Expect Focus – Vol. 1, Winter 2015]

IN THE SPOTLIGHT · Is your Company Ready to Comply with Encryption of Individually Identifiable Health Information? LIFE INSURANCE · STOLI Schemers Must Make Good on Damages Caused · At the State Level, Is a Fixed-Index…more

See All Updates »

eCommerce Regulation, Bitcoin, Anti-Money Laundering, Shadow Insurance, 401(k) Litigation [Expect Focus – Vol. IV, Fall 2015]

IN THE SPOTLIGHT - - California Passes Life and Annuity Electronic Transactions Law LIFE INSURANCE - - Under a Spotlight, "Shadow Insurance" Lawsuit Fails Scrutiny - NAIC Evaluates Insurer’s Use of Variable…more

401k, Administrative Proceedings, Big Data, Bitcoin, BSA/AML

See All Updates »

2015 Food Industry Decisions With Bite

Food for Thought is a review of significant court decisions affecting the food, beverage, dietary supplements and personal care products industry. Although many cases in this edition focus on class certification, others relate…more

Ascertainable Class, CAFA, Chobani Inc, Class Action, Class Certification

See All Updates »

Real Property & Title Insurance Update: Weeks Ending April 15 & 22, 2016

REAL PROPERTY UPDATE - - Foreclosure/Standing: original allonge is part of original note and must be filed to prove standing; assignment of mortgage that did not assign note insufficient to establish standing to foreclose …more

Foreclosure, Standing, Statute of Limitations, Title Insurance

See All Updates »

Dealmakers Q&A: Carlton Fields' Greg Null

W. Gregory Null, shareholder in the Atlanta office of Carlton Fields Jorden Burt LLP and chairman of the firm’s commercial finance industry group, has extensive experience in representing institutions and entrepreneurs in the…more

Commercial Leases, Finance Lease Contract, Financing, Real Estate Development, Real Estate Investments

See All Updates »

New Department of Justice Memo to Increase Prosecutions of White Collar Executives and Other Employees

New policy changes implemented by the Department of Justice have potentially significant implications for companies and individuals facing DOJ investigations. The new policy may create additional obstacles for companies…more

C-Suite Executives, Corporate Governance, Criminal Investigations, DOJ, Investigations

See All Updates »

EXPECT FOCUS: Onboard Technology, NAIC Cybersecurity, DOL, ACA Litigation, SEC Regulation (Vol. III, Summer 2015)

In This Issue: IN THE SPOTLIGHT - - Your Data Breach Collided With My Personal Injury Coverage LIFE INSURANCE - - Phantom Injury Dooms “Shadow Insurance” Case - Latest NAIC Cybersecurity News…more

AIG, ALJ, Auto Body Shop, Bailout, Banking Sector

See All Updates »

Cuba: The Risks and Rewards for U.S. Businesses

Background - Last week, the Obama Administration announced that the President intends to visit Cuba next month. He will find a political mixed bag of optimism and resignation. American businesses will find an equally…more

Cuba, Embargo, Export Controls, Obama Administration, Popular

See All Updates »

Domestic Partnership Agreements: FAQs

How do domestic partnership agreements (DPAs) and prenuptial or premarital agreements differ? Marriage contracts between two people who plan to marry are prenuptial agreements or antenuptial agreements. Marriage contracts…more

Domestic Partnership, DPA, Florida, Healthcare Surrogates, Living Will

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New Department of Justice Memo to Increase Prosecutions of White Collar Executives and Other Employees

New policy changes implemented by the Department of Justice have potentially significant implications for companies and individuals facing DOJ investigations. The new policy may create additional obstacles for companies…more

C-Suite Executives, Corporate Governance, Criminal Investigations, DOJ, Investigations

See All Updates »

Trademarks in Cuba, Successful Whistleblowers, Big Data, Health Care Encryption, Jury Instruction Tips [Expect Focus – Vol. 1, Winter 2015]

IN THE SPOTLIGHT · Is your Company Ready to Comply with Encryption of Individually Identifiable Health Information? LIFE INSURANCE · STOLI Schemers Must Make Good on Damages Caused · At the State Level, Is a Fixed-Index…more

See All Updates »

Smooth Operators: Seventh Circuit Untangles Objections and Affirms Settlement of Hair Product Class

The Seventh Circuit Court of Appeals affirmed a class settlement over objection in a case involving a hair-smoothing product (“the Smoothing Kit”) that allegedly destroyed users’ hair and burned their scalps. Plaintiffs sued…more

Class Action, Class Members, Reimbursements, Settlement Agreements, Unilever

See All Updates »

Getting It Right The First Time: Presenting A Persuasive Argument Without Relying On The Court’s Familiarity With The Facts Or The Law

Even apart from the importance of assuring appellate review, properly preserving the record and carefully laying out one’s argument can have an immediate impact at the trial level. Very often, a litigator comes across a set…more

Appeals, Litigation Strategies, Trial Preparation, Trials

See All Updates »

New Department of Justice Memo to Increase Prosecutions of White Collar Executives and Other Employees

New policy changes implemented by the Department of Justice have potentially significant implications for companies and individuals facing DOJ investigations. The new policy may create additional obstacles for companies…more

C-Suite Executives, Corporate Governance, Criminal Investigations, DOJ, Investigations

See All Updates »

Storm Clouds Gather for Life Insurers’ Cost of Insurance Rate Increases

For more than two decades any insurer increasing its cost of insurance (COI) rates on its universal life policies was likely to be met with policyholder lawsuits and even, occasionally, regulatory resistance. Until the past…more

Insurance Industry, Insurance Rates, Life Insurance

See All Updates »

Second Circuit Upholds Arbitration Agreement Absent Employee’s Signature

The United States Court of Appeals for the Second Circuit issued a summary order affirming a decision by the district court for the district of Connecticut compelling arbitration pursuant to an employee handbook’s mandatory…more

Appeals, Arbitration, Employee Handbooks, Motion to Compel

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Storm Clouds Gather for Life Insurers’ Cost of Insurance Rate Increases

For more than two decades any insurer increasing its cost of insurance (COI) rates on its universal life policies was likely to be met with policyholder lawsuits and even, occasionally, regulatory resistance. Until the past…more

Insurance Industry, Insurance Rates, Life Insurance

See All Updates »

A Kickstart to Business: Florida Joins Other States in Passing Intrastate Crowdfunding Exemption

The local charitable campaign that raised funds for new team uniforms is moving to the boardroom as Florida joins more than 20 other states that have passed legislation or enacted regulations permitting some form of intrastate…more

Crowdfunding, Financial Institutions, Florida, Internet, Investment

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Grateful Marijuana Grower Scores Coverage Victory in Colorado Federal Court

The Green Earth Wellness Center operates a retail medical marijuana business and adjacent growing facility in Colorado Springs, Colorado. In 2012, it purchased commercial insurance from Atain Specialty Insurance Company. Atain…more

Bad Faith, Breach of Contract, Commercial General Liability Policies, Controlled Substances, Decriminalization of Marijuana

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The Aftermath of Tyson Foods: Lessons for Employers

The Supreme Court’s recent decision in a Fair Labor Standards Act (FLSA) class action against Tyson Foods is an important reminder that employers must be aware that certain pre- or post-employment activities are compensable…more

Admissible Evidence, Class Action, Class Certification, Doffing, Donning

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EXPECT FOCUS: Onboard Technology, NAIC Cybersecurity, DOL, ACA Litigation, SEC Regulation (Vol. III, Summer 2015)

In This Issue: IN THE SPOTLIGHT - - Your Data Breach Collided With My Personal Injury Coverage LIFE INSURANCE - - Phantom Injury Dooms “Shadow Insurance” Case - Latest NAIC Cybersecurity News…more

AIG, ALJ, Auto Body Shop, Bailout, Banking Sector

See All Updates »

In Construction Disputes, Tell the Story

Construction disputes are inherently complex. They involve numerous facts that are usually highly technical and beyond the understanding of lay persons. These cases typically draw in multiple parties and require extensive expert…more

Construction Disputes, Litigation Strategies

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2015 Food Industry Decisions With Bite

Food for Thought is a review of significant court decisions affecting the food, beverage, dietary supplements and personal care products industry. Although many cases in this edition focus on class certification, others relate…more

Ascertainable Class, CAFA, Chobani Inc, Class Action, Class Certification

See All Updates »

Coverage for Direct Physical Loss Does Not Necessarily Include “Matching” or Require “Aesthetic Uniformity”

When a property insurance policy covers a multi-story building or multi-building property, and a portion sustains damage, there is often a question regarding the extent to which undamaged property should be replaced to ensure…more

Denial of Benefits, Insurance Industry, Property Damage, Property Insurance, Summary Judgment

See All Updates »

Expect Focus - Spot The Regulator, Volume IV, Fall 2014

In This Issue: - IN THE SPOTLIGHT ..Crisis Management: Five Steps to Take Before Providing That Comment - LIFE INSURANCE ..Third Circuit Limits ERISA Fiduciary Liability to those with Ultimate…more

Automotive Loans, CFTC, Class Action, Consumer Complaint System, Data Breach

See All Updates »

Cuba: A Playing Field for Trademark Pirates

Now that President Obama has lifted trade restrictions, American businesses are considering whether to expand their operations to Cuba. For some corporations, it makes immediate sense. For others, it may not. But regardless of…more

Business Opportunities, Cuba, Sanctions, Third-Party Risk, Trade Relations

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Seventh Circuit Weighs In On One-Way Intervention

Does plaintiff’s contemporaneous filing of a motion for summary judgment and a motion for class certification violate the rule against one-way intervention? In Costello, plaintiff filed his motions for summary judgment and class…more

Class Certification, Judgment on the Merits, Motion for Summary Judgment, Young Lawyers

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AAA/ICDR Adopts New Optional Appellate Arbitration Rules

In a move that is bound to revolutionize both domestic and international arbitration, the American Arbitration Association ("AAA"), including its international arm, the International Centre for Dispute Resolution ("ICDR"), has…more

Arbitration, International Arbitration

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Food for Thought: California Court Prevents Second Bite at the Yogurt - Torrent v. Yakult U.S.A., Inc., No. 8:15-cv-00124-CJC-JCG (C.D. Cal., March 7, 2016)

Plaintiff Nicolas Torrent filed a putative class action alleging yogurt drink manufacturer, Yakult U.S.A., Inc.’s marketing and advertising claims concerning digestive health benefits were false and deceptive. Plaintiff sought…more

Class Certification, False Advertising, Food Labeling, Food Manufacturers, Food Marketing

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Construction Case Law Update - October 2014

Applying the Ameris factors, the Middle District of Florida abstained from and dismissed indemnitor’s declaratory judgment action to determine indemnity provision’s (1) scope, (2) duty to defend against third-party contractor’s…more

Construction Contracts, Construction Industry, Construction Workers, Contractors, Subcontractors

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No Harm, No Standing: Texas Federal Court Dismisses Data Breach Class Action

Dismissing a class action based on a data breach, the Southern District of Texas added to the growing number of decisions that find an alleged risk of future identity theft due to a data breach is not an injury that creates…more

Actual Injuries, Class Action, Corporate Counsel, Data Breach, Dismissals

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New FIRPTA Exceptions Provide Opportunities for Foreign Pensions and Investment Funds

The Foreign Investment in Real Property Tax Act of 1980 (FIRPTA) authorized the United States to tax foreign persons on the gain from the disposition of U.S. real property or U.S. real property interests (USRPIs). Recently, the…more

FIRPTA, Pension Funds, Protecting Americans from Tax Hikes (PATH) Act, Real Estate Market, REIT

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CFPB Issues Compliance Bulletin Clarifying Expectations on Furnisher Obligations Under the Fair Credit Reporting Act

The Consumer Financial Protection Bureau has issued CFPB Compliance Bulletin 2016-01, which "emphasize[s] the obligation of furnishers under Regulation V[1] to establish and implement reasonable written policies and procedures…more

CFPB, Consumer Information, Consumer Reporting Agencies, FCRA, Financial Sector

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Q&A With Carlton Fields' Brian Rosner

Brian Rosner is a shareholder in Carlton Fields' New York office. Q: What is the most challenging case you have worked on and what made it challenging? Originally Published in Law360, New York - April 29, 2013…more

Billing, Litigation Strategies, Securities Fraud

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Construction Case Law Update - January 11, 2016

CGL Policies, Supplemental Payment Provision, and Attorney’s Fees - A contractor’s commercial general liability insurer appealed a final judgment in favor of homeowners that damages awarded to them in a construction defect suit…more

Anti-Assignment Clauses, Commercial General Liability Policies, Construction Defects, Construction Industry, Insurance Industry

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Delaware Supreme Court Rejects Presumption of Disloyalty for Independent Directors

Public companies incorporated in Delaware frequently adopt a charter provision, pursuant to 8 Del. C. § 102(b)(7), that insulates their directors from monetary damages for breaches of the fiduciary duty of care. Those…more

Breach of Duty, Controlling Stockholders, Delaware General Corporation Law, Derivatives, Exculpatory Clauses

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We Don’t Feel Your Pain: Massachusetts Limits Recoveries By Workers Compensation Insurers

When an injured employee sues a third party for negligence, the law usually permits her employer’s workers compensation insurer to share in the recovery. Last month, in DiCarlo v. Suffolk Construction Co., Nos. SJC-11854 and…more

Economic Loss Doctrine, Insurance Industry, MA Supreme Court, Pain and Suffering, Tort

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Domestic Partnership Agreements: FAQs

How do domestic partnership agreements (DPAs) and prenuptial or premarital agreements differ? Marriage contracts between two people who plan to marry are prenuptial agreements or antenuptial agreements. Marriage contracts…more

Domestic Partnership, DPA, Florida, Healthcare Surrogates, Living Will

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A Pleading Malfunction Dooms Malfunction Theory

White v. Mazda Motor of Am., Inc., 313 Conn. 610 (2014) - This case illustrates the importance of sufficiently pleading claims and defenses, and moving for leave to amend the pleadings if there is some question or doubt…more

Defense Strategies, Mazda, Pleading Standards, Pleadings

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Alternative Fee Arrangements

Clients and law firms sometimes talk about "Alternative Fee Arrangements" (or "AFAs") without understanding what they entail. Best understood, the term describes any arrangement other than payment based purely on hourly billing…more

Alternative Fee Arrangements, Billing, Budgets, Fixed-Fee, Young Lawyers

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Does Your Company Website Violate the ADA?

The Americans with Disabilities Act (ADA) has is most commonly thought of as prohibiting workplace discrimination against individuals with disabilities and requiring the elimination of physical barriers to public locations. But…more

ADA, DOJ, Public Accommodation, Title III, Website Accessibility

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Personal Injury: Defendants May Conduct Multiple Independent Medical Examinations With Good Cause

Gomez v. Rendon, No. 3D12-1105, 2013 WL 1316439 (Fla. 3d DCA April 3, 2013) - When a personal injury plaintiff’s physical condition is in controversy, and it changes substantially after the defendant conducts an…more

Medical Examinations, Medical Records, Notice for Independent Medical Exam

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10 Tips for Minimizing Company Liability for Terminating Employees who Steal Trade Secrets

When your company uncovers evidence that an employee misappropriated trade secrets it must act swiftly. The company may want to fire the employee to protect itself from the potentially devastating consequences. But how can you…more

COBRA, Compliance, Computer Fraud and Abuse Act, Employer Liability Issues, Employment Policies

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Florida Imposes Additional Unclaimed Property Requirements on Life Insurers

On April 12, Florida Governor Scott signed Senate Bill 0966 into law. SB 0966 amends the insurance benefits provisions of Florida’s Uniform Unclaimed Property Act, Fl. Stat. Section 717.107. These amendments effectively codify…more

Death Benefits, Florida, Insurance Industry, Insurance Regulations, Life Insurance

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Companies, Through Best Practices, Can Help Keep Cyber Insurance Prices Reasonable

In speaking to a cybersecurity conference in 2012, then FBI Director Robert Mueller told attendees that there are only two types of companies: those that have been hacked and those that will be. Sadly, with each passing day,…more

Best Practices, Cyber Insurance, Cybersecurity, Insurance Industry, Price Transparency

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The Future of Class Actions: The Impact of Justice Scalia’s Death on Upcoming Rulings

There is no doubt that the death of Supreme Court Justice Antonin Scalia will have major repercussions on Supreme Court jurisprudence. A 30-year veteran of the Court, Justice Scalia was known for his originalist positions and…more

AT&T Mobility v Concepcion, Barack Obama, Class Action, Class Certification, Comcast v. Behrend

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Companies, Through Best Practices, Can Help Keep Cyber Insurance Prices Reasonable

In speaking to a cybersecurity conference in 2012, then FBI Director Robert Mueller told attendees that there are only two types of companies: those that have been hacked and those that will be. Sadly, with each passing day,…more

Best Practices, Cyber Insurance, Cybersecurity, Insurance Industry, Price Transparency

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IRS Targets Captive Insurance Companies Owned by Closely-Held and Middle Market Companies

In February 2015, the IRS added certain small or “micro” captive insurance companies to its “Dirty Dozen” list of abusive tax scams for the 2015 filing season. In response to what it sees as an abuse involving a legitimate…more

Captive Insurance Company, Insurance Industry, Internal Revenue Code (IRC), IRS, Tax Scams

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New Condominium Exemption To The Interstate Land Sales Full Disclosure Act

As we previously reported, a significant amendment to the Interstate Land Sales Full Disclosure Act (ILSA) becomes effective on March 26, 2015. HR2600 adds an exemption from registration for a “condominium unit.” This is a…more

Condominiums, Exemptions, ILSA

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What the Recent NAIC Financial Condition Examiners Handbook Changes Mean for Insurers

On September 21, 2015, the National Association of Insurance Commissioners (NAIC) IT Examination Working Group adopted amendments to the IT section of the Financial Condition Examiners Handbook (“the Handbook”). The changes are…more

Cyber Threats, Cybersecurity, Cybersecurity Framework, Guidance Update, Handbooks

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Pre-Trial Problems: Don’t Forfeit Your Personal-Jurisdiction Defense

The Seventh Circuit’s decision in German American Financial Advisors & Trust Co. v. Rigsby, No. 15-1612, --- F. App’x ----, 2015 WL 5579751 (7th Cir. Sept. 23, 2015), highlights the preservation pitfall of forfeiting a…more

Litigation Strategies, Motion to Dismiss, Personal Jurisdiction, Summary Judgment

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Real Property & Title Insurance Update: Weeks Ending April 15 & 22, 2016

REAL PROPERTY UPDATE - - Foreclosure/Standing: original allonge is part of original note and must be filed to prove standing; assignment of mortgage that did not assign note insufficient to establish standing to foreclose …more

Foreclosure, Standing, Statute of Limitations, Title Insurance

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eCommerce Regulation, Bitcoin, Anti-Money Laundering, Shadow Insurance, 401(k) Litigation [Expect Focus – Vol. IV, Fall 2015]

IN THE SPOTLIGHT - - California Passes Life and Annuity Electronic Transactions Law LIFE INSURANCE - - Under a Spotlight, "Shadow Insurance" Lawsuit Fails Scrutiny - NAIC Evaluates Insurer’s Use of Variable…more

401k, Administrative Proceedings, Big Data, Bitcoin, BSA/AML

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Employment and Labor Law Road Map for Employers Entering the U.S. Market

Foreign companies and investors that enter the U.S. market will be governed by numerous state and federal labor and employment laws. When opening a business in the United States, it is therefore critical to work with experienced…more

Compensation & Benefits, Employer Liability Issues, Employer Mandates, Employment Policies, FLSA

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Expect Focus - Spot The Regulator, Volume IV, Fall 2014

In This Issue: - IN THE SPOTLIGHT ..Crisis Management: Five Steps to Take Before Providing That Comment - LIFE INSURANCE ..Third Circuit Limits ERISA Fiduciary Liability to those with Ultimate…more

Automotive Loans, CFTC, Class Action, Consumer Complaint System, Data Breach

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Expect Focus - Catching The Next Wave, Regulatory and Litigation Developments - Volume II, Spring 2014

In This Issue: - IN THE SPOTLIGHT ..Private Equity: The Next Wave of SEC Enforcement Actions? - LIFE INSURANCE ..How to Fight a STOLI Scheme: Court Rulings Offer Clues ..STOA Schemes Face Increased…more

Compliance, Enforcement, Enforcement Actions, PBGC, Private Equity

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Employment and Immigration Issues Facing Banks

EMPLOYMENT ISSUES - 1. No compensation for compensable work - Many banks—including large, sophisticated banks—are facing class action lawsuits for not compensating non-exempt employees for compensable work. These…more

Banks, Class Action, Criminal Background Checks, Employer Liability Issues, Foreign Nationals

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Keep This Between Us—and the Government: Confidentiality of Witness Interviews in Corporate Internal Investigations

Internal investigations into suspected employee wrongdoing are particularly tricky for in-house counsel, who must protect corporate confidentiality, be mindful of regulatory reporting requirements, and respect labor agreements…more

Collective Bargaining, Corporate Investigations, Internal Investigations, NLRB, Popular

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The Future of Class Actions: The Impact of Justice Scalia’s Death on Upcoming Rulings

There is no doubt that the death of Supreme Court Justice Antonin Scalia will have major repercussions on Supreme Court jurisprudence. A 30-year veteran of the Court, Justice Scalia was known for his originalist positions and…more

AT&T Mobility v Concepcion, Barack Obama, Class Action, Class Certification, Comcast v. Behrend

See All Updates »

CFPB Issues Statement Following Reports of Widespread Student Loan Servicing Failures

The Consumer Financial Protection Bureau (CFPB) recently focused its attention on the student loan industry following alleged widespread servicing failures reported by borrowers and found by the CFPB's examinations and…more

Borrowers, CFPB, Consumer Financial Products, Consumer Lenders, Debt

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Developments in Cybersecurity: Privacy Laws, Hacking Beyond Customer Data, and Communicating with Corporate Boards

I. Legal Exposure to Federal and State Privacy Laws - A. Federal Statutes and Enforcement - 1. Federal Trade Commission Act, 15 U.S.C. §§ 41-58 - The Federal Trade Commission (FTC) has emerged as the leading…more

Breach Notification Rule, Communications Act of 1934, Cybersecurity, Cybersecurity Information Sharing Act (CISA), Data Security

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Eleventh Circuit Reverses District Court on Application of Noneconomic Damages Cap

Yesterday, the Eleventh Circuit issued an order in Estate of McCall v. USA reversing the district court’s order applying the noneconomic damages cap. The Eleventh Circuit remanded the case for further proceedings consistent with…more

Damage Caps, Tort Claims Act, Wrongful Death

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Cut! Eighth Circuit Excludes Non-Board Member from CGL Coverage for “Directors”

Directors and Officers liability policies are typically precise in defining the job descriptions of the individuals to whom they offer coverage. Recently, in United Fire & Cas. Ins. Co. v. Thompson, No. 13-2352 (8th Cir. July…more

Board of Directors, Commercial General Liability Policies, Directors

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Moving For Remand: When Have You Lost Your Chance?

If you actively litigate your removed case in federal court before timely moving to remand, do you waive the right to remand? It depends on the Circuit. A February 2016 decision from the Southern District of West Virginia…more

Litigation Strategies, Motion to Remand, Trial Preparation

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Will Hillsborough County Adopt Mobility Fees in April?

Part of the years-long transportation funding debate appears to be reaching a conclusion. On March 24, Hillsborough County held a well-attended public workshop regarding implementing mobility fees, which are described as “a…more

Construction Industry, Fees, Florida, Impact Fees, Infrastructure

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Construction Case Law Update - January 11, 2016

CGL Policies, Supplemental Payment Provision, and Attorney’s Fees - A contractor’s commercial general liability insurer appealed a final judgment in favor of homeowners that damages awarded to them in a construction defect suit…more

Anti-Assignment Clauses, Commercial General Liability Policies, Construction Defects, Construction Industry, Insurance Industry

See All Updates »

Real Property & Title Insurance Update: Weeks Ending April 15 & 22, 2016

REAL PROPERTY UPDATE - - Foreclosure/Standing: original allonge is part of original note and must be filed to prove standing; assignment of mortgage that did not assign note insufficient to establish standing to foreclose …more

Foreclosure, Standing, Statute of Limitations, Title Insurance

See All Updates »

Court Denies Discovery Of Reserve Information

On Plaintiffs’ motion to compel discovery in a bad faith action against first-party property insurer Liberty Mutual Fire Insurance Company (“Liberty Mutual”), an Alabama federal court limited, but allowed, discovery related to:…more

Bad Faith, Commercial Real Estate Market, Discovery, Insurance Industry, Insurance Litigation

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SCOTUS v. the Ninth Circuit on Failure to Enforce ERISA Stock-Drop Pleading Standard

In a terse per curiam opinion, the U.S. Supreme Court in Amgen Inc. v. Harris, No. 15-278 (U.S. Jan. 25, 2016), made clear that it expects lower courts to faithfully apply the pleading requirements for “stock-drop” cases under…more

Amgen, Breach of Duty, Employee Benefits, ERISA, ESOP

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The Basics of E-Recording

The Uniform Electronic Transactions Act (UETA) in most states, and the Global National Commerce Act (E-sign) federally, allow sale contracts, mortgage instruments, and promissory notes to be memorialized with the electronic…more

E-SIGN, Florida, Recording Requirements, UETA

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The Reply Brief: Turning "Getting the Last Word" into "Getting the Win"

When you are the appellant, you always have the burden of persuasion in seeking a reversal. Even on a de novo review, you are starting at least a step behind, psychologically. A reply brief may be the last word and the last…more

Appeals, Litigation Strategies

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Don’t Let The Two Issue Rule Send Your Appeal Down the Drain

There are several preservation pitfalls to be mindful of when drafting the verdict form. One such issue is whether and how to avoid the "two-issue rule." As commonly found in most jurisdictions, the two-issue rule states that…more

Appeals, Litigation Strategies, Young Lawyers

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The CFPB Takes First Enforcement Action Related to Data Security Practices

The Consumer Financial Protection Bureau (CFPB ) has taken its first UDAAP action against a consumer financial service provider related to data security practices. Since its launch in December 2009, Dwolla, Inc. ("Dwolla"), an…more

CFPB, Data Security, Dwolla, Enforcement Actions, Financial Services Industry

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Q&A With Carlton Fields' Jim Walker

James Walker IV is a shareholder in Carlton Fields Jorden Burt PA's Atlanta office and co-chairman of the firm’s technology industry group. His practice is focused on representing companies and investment funds in complex…more

Acquisitions, Capital Markets, Divestiture, Joint Venture

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OMG! I Have To Produce What? 4 Steps To Tipping The Field With Social Media

Not every widower mourns by partying with several young women. And most of those who soothe their pain with a couple cold ones and a few warm shoulders to cry on don’t commemorate the occasion with a Facebook photo. But a few…more

Discovery, Document Productions, Social Media

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Federal Court Issues $1 Million Contempt Award for Repeated Cell Phone Unlocking Misconduct

On March 18, United States District Judge Ursula Ungaro of the United States District Court for the Southern District of Florida entered an order against a Hong Kong-based company that was improperly distributing prohibited…more

Cell Phones, Contempt, Final Judgment, Hackers, Permanent Injunctions

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Second Circuit Rules On Arbitrability Question

After a de novo review of the District Court’s ruling denying a bank’s motion to compel arbitration, the United States Court of Appeals for the Second Circuit reversed and remanded a district’s court order. The plaintiff argued…more

Arbitration, Banking Sector, De Novo Standard of Review, Mandatory Arbitration Clauses, Motion to Compel

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Trademarks in Cuba, Successful Whistleblowers, Big Data, Health Care Encryption, Jury Instruction Tips [Expect Focus – Vol. 1, Winter 2015]

IN THE SPOTLIGHT · Is your Company Ready to Comply with Encryption of Individually Identifiable Health Information? LIFE INSURANCE · STOLI Schemers Must Make Good on Damages Caused · At the State Level, Is a Fixed-Index…more

See All Updates »

Employment and Immigration Issues Facing Banks

EMPLOYMENT ISSUES - 1. No compensation for compensable work - Many banks—including large, sophisticated banks—are facing class action lawsuits for not compensating non-exempt employees for compensable work. These…more

Banks, Class Action, Criminal Background Checks, Employer Liability Issues, Foreign Nationals

See All Updates »

Alleged Misrepresentations to DFS Warrant SLUSA Preclusion

The Southern District of New York recently granted defendant’s motion to dismiss a putative class action claiming that AXA Equitable Life Insurance Company breached its contractual obligation by implementing a volatility…more

AXA Equitable Life, Breach of Contract, Insurance Industry, Life Insurance, Misrepresentation

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Will Tender of Full Amount of Named Plaintiff’s Claim Moot a TCPA Class Action?

In Campbell-Ewald Co. v Gomez, 136 S.Ct. 663 (2016), the Supreme Court held that Rule 68 offers of judgment to a class representative do not moot a class action. The Supreme Court left open the possibility that an actual tender…more

Mootness, Putative Class Actions, Rule 68, TCPA, Tender Offers

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Two Key Insurance Considerations For Startups

Startups have numerous and different insurance needs and will face many challenges as new businesses, but by considering whether general liability and key person insurance are appropriate products they will likely be better…more

Business Formation, Entrepreneurs, Legal Perspectives, Liability Insurance, Popular

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Illinois Supreme Court: Innocent Insured Doctrine? For a Lawyer? (cough)

Illinois State Bar Assoc. Mut. Ins. Co. v. Law Office Of Tuzzolino and Terpinas, the Illinois Supreme Court held that the “innocent insured” doctrine does not protect an innocent prospective insured, if his law partner makes…more

Attorney Malpractice, ILL Supreme Court, Innocent Insured, Law Firm Partners, Malpractice Insurance

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Florida’s Third DCA Withdraws Opinion Impacting Mortgage Lenders

Last April, we provided an update on the Florida Third District Court of Appeal’s opinion in Deutsche Bank Trust Company Americas v. Beauvais. In that decision, the Third District held a dismissal without prejudice does not…more

Deutsche Bank, Dismissals, En Banc Review, Financial Sector, Foreclosure

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Federal Courts Lack Jurisdiction Over Enforcement Of Foreign Judgments, Even Where Judgment Is Inconsistent With Earlier Arbitration Award Or Agreement To Arbitrate

Plaintiff Albaniabeg, power plant operator, sought enforcement of an Albanian judgment in a New York state court against defendant Italian power companies. Section 205 of the FAA permits removal of an action that relates to an…more

Arbitration, Arbitration Agreements, Arbitration Awards, Federal Arbitration Act, Foreign Arbitration Clauses

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Court Looks To Prior Related Reinsurance Litigation In Ruling That Reinsurer Must Post Pre-Pleading Security

We previously reported on reinsurance litigation in Connecticut federal court between Travelers Indemnity Co. and Excalibur Reinsurance Corp, which the parties settled in May 2014. See prior post dated July 31, 2014. A year…more

Insurance Industry, Insurance Litigation, Reinsurance, Travelers Property Casualty Co.

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BP Settlement Claim

After years of litigation, BP Exploration & Production, Inc. and BP America Production Company (collectively, "BP") entered a class-wide settlement ("BP Settlement") that covers most businesses located in the Gulf Coast Region,…more

BP, Class Action, Eligibility, Gulf Oil Spill, Settlement

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National Union Prevails on $40 Million Coblentz Enforcement Action in D&O Case

On October 20, the U.S. District Court for the Middle District of Florida granted summary judgment to National Union Fire Insurance Company of Pittsburgh, Pa., in BondSafeguard v. National Union, 6:13-cv-561. The court held that…more

D&O Insurance, Development Agreements, Negligent Misrepresentation, Policy Exclusions, Real Estate Development

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SEC Provides Long-Awaited Guidance on Fund Distribution and Sub-Accounting Fees

Guidance Update No. 2016-01, published this month by the SEC’s Division of Investment Management, provides extensive guidance concerning the possibility that payments from mutual funds are being used to promote sales of the…more

Fund Distribution, Intermediaries, Investment Company Act of 1940, Mutual Funds, SEC

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Lines Drawn In Tesla Direct Sales Battle

Elon Musk's battle to sell Teslas directly to consumers continues. In the last five months, the governors and legislatures of Pennsylvania and New Jersey and, now, even the White House, have taken stands on whether or not Tesla…more

Auto Manufacturers, Automotive Industry, Car Dealerships, Elon Musk, New Legislation

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Trademarks in Cuba, Successful Whistleblowers, Big Data, Health Care Encryption, Jury Instruction Tips [Expect Focus – Vol. 1, Winter 2015]

IN THE SPOTLIGHT · Is your Company Ready to Comply with Encryption of Individually Identifiable Health Information? LIFE INSURANCE · STOLI Schemers Must Make Good on Damages Caused · At the State Level, Is a Fixed-Index…more

See All Updates »

Contact

4221 W Boy Scout Blvd., Suite 1000
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