Cozen O'Connor

Supreme Court Rejects Presumption of Prudence for ESOP Fiduciaries

On June 25, 2014, the Supreme Court of the United States, in Fifth Third Bancorp v. Dudenhoffer, declared that no “presumption of prudence” applied to fiduciaries of “employee stock ownership plans” (ESOPs)…more

Corporate Counsel, Duty of Prudence, ERISA, ESOP, Fiduciary Duty

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Fifth Circuit Predicts When the Texas Prompt Pay Act Begins to Accrue

In a recent decision, the Fifth Circuit considered when the 18 percent damages interest under the Texas Prompt Payment of Claims Act (Prompt Pay Act) accrues and whether an insurer can waive a policy’s one-year cost reporting…more

Commercial General Liability Policies, Condition Precedent, Declaratory Judgments, Insurance Litigation, Prompt Payment

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Professional Services Exclusion Does Not Preclude Coverage for Deceptive Advertising Claim

Recently, in Rob Levine & Associates Ltd. v. Travelers Casualty and Surety Co., No. 13-560-M, 2014 U.S. Dist. LEXIS 15807 (D.R.I. Feb. 3, 2014), the U.S. District Court for the District of Rhode Island held that a legal services…more

D&O Insurance, False Advertising, Professional Liability

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What the United States Supreme Court’s Decision in Direct TV v. Imburgia Means For Your Consumer Agreements and Arbitration Clauses

Last week, the United States Supreme Court issued its opinion in Direct TV v. Imburgia, 577 U.S. ___ (2015). This decision is important for manufacturers of consumer products because it fortifies the ability to incorporate and…more

Arbitration Agreements, Class Action, Class Action Arbitration Waivers, DirecTV v Imburgia, Federal Arbitration Act

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Health Care Reform Implementation Update

Over the past several days, the second open enrollment period through the Affordable Care Act’s (ACA’s) health insurance exchanges began; Republican lawmakers, now with majorities in both the House and the Senate, explored…more

Affordable Care Act, CMS, Dialysis Providers, Employer Mandates, Health Insurance Exchanges

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Delaware Supreme Court Affirms Enforcement of Agreement to Negotiate in Good Faith

In a recent case before the Delaware Supreme Court, SigaTechnologies v. PharmAthene, the court upheld a Delaware Chancery Court’s ruling that an express agreement between parties to negotiate in good faith, even if the subject…more

Breach of Contract, Contract Interpretation, Covenant of Good Faith and Fair Dealing, Damages, Negotiations

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Texas Supreme Court Clarifies Scope and Application of the “Anti-Technicality” Statute

In Greene v. Farmers Insurance Exchange, the Texas Supreme Court clarified the scope and application of § 862.054 of the Texas Insurance Code, the “anti-technicality” statute, holding that the clause would only operate in…more

Breach of Contract, Insurance Industry, Insureds, Materiality, Public Policy

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Oregon Supreme Court Declines to Apply $500,000 Cap on Non-Economic Damages to Birth Injuries Claim

In Klutschkowski v. Peacehealth, et al., No. 160615518 (Ore., Sept. 26, 2013), the Oregon State Supreme Court unanimously held that an Oregon statute capping non-economic damages at $500,000 was unconstitutional as applied to a…more

Birth Injuries, Damage Caps, Damages, Medical Liability, Medical Malpractice

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Update on Significant DOT, FAA and Other Federal Agencies’ Aviation-Related Regulatory Actions - February 2016

This edition of the Cozen O’Connor Aviation Regulatory Update includes the recently signed U.S.-Mexico bilateral agreement that liberalizes air services between the two countries, new Cuba-related regulations loosening…more

Aircraft, Aviation Industry, Bilateral Agreements, Cuba, Department of Transportation (DOT)

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Will Congress Come Together for Telemedicine?

Consistent with what we have been seeing in our own practice, and consumers’ growing demand for better access to telemedicine services, a bi-partisan movement is growing in both houses of Congress to expand telehealth services,…more

Medicare Access and CHIP Reauthorization (MACRA), MIPS, Proposed Legislation, Telemedicine

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Texas Supreme Court Decides that PRP Letters Issued by the EPA Under CERCLA Constitute a “Suit”

In McGinnes Industrial Maintenance Corporation v. The Phoenix Insurance Company, No. 14-0465, —S.W.3d— (Tex. June 26, 2015), a 5-4 majority of the Texas Supreme Court held that the undefined term “suit” in the standard-form CGL…more

CERCLA, Commercial General Liability Policies, Duty to Defend, EPA, Potentially Responsible Party (PRP)

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White House Announces New Requirement for Pay Data to Be Included in Form EEO-1

Last week, the White House announced yet another executive action. For the first time, private employers will be required to include pay data on the Form EEO-1, which is required annually for all employers with more than 100…more

Data Collection, EEO-1, EEOC, Reporting Requirements, Wage and Hour

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Fourth Circuit: Rule 23(f) Review Does Not Apply to Decertification Denials

Rule 23(f) provides for discretionary interlocutory review of an order “granting or denying class-action certification” if a party files a petition for permission to appeal within 14 days after the order is entered. Last month,…more

Appeals, Class Action, Class Certification, Rule 23(f)

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Supreme Court Issues Landmark Clean Air Act Ruling, Revives Cross-State Air Pollution Rule

On April 29, 2014, in a very significant 6-2 decision, the U.S. Supreme Court affirmed EPA’s Cross-State Air Pollution Rule (CSAPR or the Rule), overturning a 2012 D.C. Circuit Court of Appeals decision invalidating the Rule…more

Air Pollution, Clean Air Act, Cross-State Air Pollution, EPA, EPA v EME Homer City

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Vermont: First-Party Pollution Exclusions Are Not Confined to Traditional Environmental Pollution.

Courts in a number of American states, notably California, have found that pollution exclusions in first-party policies are “inherently ambiguous” and that the purpose of such provisions is “to address liability arising from…more

Homeowner's Insurance, Insurance Industry, Pesticides, Pollution Exclusion

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“Insanity Defense” Fails To Preserve Coverage For Insured’s Arson

Missouri resident James Roller set fire to his garage in an attempt to commit suicide. When smoke and fumes surrounded him he changed his mind, fled the garage, and alerted his wife of the fire. Mrs. Roller called 911. A…more

Declaratory Judgments, Denial of Insurance Coverage, Fire Damage, Homeowner's Insurance, Innocent Spouse Exception

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FDA’s Comment Period for “Natural” Food Labels Is Now Open

FDA took long-awaited and much-anticipated steps this week to address the requests of both consumers and food manufacturers and producers for guidance and regulation on use of the term “natural.” For years now, consumer…more

All Natural, FDA, Food Labeling, Food Manufacturers, Natural Products

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Commonwealth Court Approves PA PUC’s Implementation of Distribution System Improvement Charge

The Commonwealth Court of Pennsylvania issued a decision on November 3, 2015, available here, that has significant implications for public utilities in Pennsylvania seeking to recover costs associated with distribution system…more

Cost Recovery, Income Taxes, Public Utilities Commission, Tax Deductions, Tax Rates

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The “Other” Safe Harbor: OIG Warns Healthcare Providers and Vendors Against Information Blocking and Federal Anti-Kickback Violations

For those of us who work in the privacy and security space this past week has been a whirlwind with focus on the ramifications of the European Court of Justice (ECJ) decision invalidating the EU-U.S. Safe Harbor Agreement. Much…more

Anti-Kickback Statute, Cybersecurity, Data Protection Authority, Edward Snowden, Electronic Health Record Incentives

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Chris Correa Isn’t Billy Beane and This Isn’t Moneyball

The lights going on and off within the head of former St. Louis Cardinals scouting director Chris Correa were once probably flickering more actively than the lights inside of The Staples Center just before the Los Angeles Lakers…more

Cardinals, Cybersecurity, Guilty Pleas, Hackers, Houston Astros

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Employers May Fire Employees for State-Licensed Medical Marijuana Use, Colorado Supreme Court Holds

In a much anticipated decision, the Colorado Supreme Court confirmed an employer’s right to fire employees for drug use — even state-licensed use of medical marijuana. The court ruled in a unanimous decision that Dish Network…more

CO Supreme Court, Dish Network, Drug & Alcohol Abuse, Hiring & Firing, Medical Marijuana

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Will Plan Participants’ Demands for Perfection Retire Large 401(k) Plans?

Participants in Anthem Inc.’s $5.1 billion 401(k) plan have sued plan fiduciaries, alleging that they have top-shelf tastes that constitute a breach of the duties of loyalty and prudence owed to participants, and that the…more

401k, Anthem Insurance, Corporate Counsel, Duty of Loyalty, Duty of Prudence

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Washington Court Upholds Preemption Ruling for Aircraft Component Manufacturer

Last week, in the Estate of Virgil Becker v. Forward Technology Industries, Inc., a Washington appellate court upheld a lower court decision affirming the dismissal of claims against an aircraft component manufacturer on grounds…more

Airplane Accidents, Aviation Industry, Manufacturers, Manufacturing Defects, Preemption

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What Can Be Learned From Madonna’s Custody Battle

Pop icon Madonna is facing a difficult battle concerning custody of her 15 year-old son, Rocco.  While the divorce agreement she entered into with Guy Ritchie about eight years ago, awarded her custody of Rocco, it appears that…more

Child Custody, Co-Parenting, Custody Modification, Physical Custody

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Group Homes Were Not Charitable

A panel of the Commonwealth Court of Pennsylvania held that group homes maintained by a nonprofit for persons with intellectual disabilities were not entitled to real estate tax exemptions as charities. ARC Human Services, Inc…more

Non-Profits, Property Tax, Tax Exemptions

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New York Court Erodes Privilege for Attorney-Insurer Communications

On July 31, 2014, the New York Supreme Court, Appellate Division, First Department chipped away at the privilege protections available to insurers. In National Union Fire Ins. Co. of Pittsburgh, Pennsylvania v. TransCanada…more

Attorney-Client Privilege, Insurance Industry, Qualified Privilege

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The Next Generation of Data Breach Notice Law — Florida’s Information Protection Act of 2014

In a harbinger of data-breach-laws to come, the Florida State Legislature just passed a new Florida Information Protection Act, which establishes tough new notification requirements for businesses and governmental entities. With…more

Breach Notification Rule, Cybersecurity, Data Breach, Data Protection, Information Governance

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Tenth Circuit Holds That Two-And-One-Half Years And Two-And-One-Half Million Dollars Do Not Constitute Prejudice

In BSC Holding, Inc. et al. v. Lexington Ins. Co., — Fed.Appx. –, 2014 WL 929194 (10th Cir., March 11, 2014), the Tenth Circuit recently underscored how difficult it can be for an insurer to demonstrate prejudice as a result of…more

Insurance Industry, Late Notices, Prejudice, Property Insurance, Summary Judgment

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Labor and Employment Observer 2015/2016

The Irony in Regulating Employee Social Media Speech: the NLRB vs. the FTC - BREAKING NEWS: Employees use social media. A lot. And, in a related story, Bush beat Gore, according to the Supreme Court. All breaking news, of…more

Employer Liability Issues, Exempt-Employees, FLSA, FTC, Gun Laws

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Securities Law and Corporate Governance Developments: A Look Back at 2015 and a Preview of 2016

Initiatives by Congress, the Securities and Exchange Commission (SEC), activist shareholders, and federal and state courts from 2015 will reshape public company disclosure and policies, and offer new avenues for private…more

Capital Raising, CEO's, Clawbacks, Corporate Governance, Crowdfunding

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Labor and Employment Observer 2015/2016

The Irony in Regulating Employee Social Media Speech: the NLRB vs. the FTC - BREAKING NEWS: Employees use social media. A lot. And, in a related story, Bush beat Gore, according to the Supreme Court. All breaking news, of…more

Employer Liability Issues, Exempt-Employees, FLSA, FTC, Gun Laws

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Illinois Tightens Settlement Procedures

We have all experienced the frustration of having negotiated an acceptable settlement recovery after years of loss investigation and discovery, only to have the settling defendant drag its heels in terms of proffering a release…more

Settlement

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Using the Privilege: Fifth Amendment Fundamentals for Corporations

Most in-house lawyers, if they're fortunate, haven't bumped up against the Fifth Amendment and its related issues since the bar exam. After all, the so-called "nickel" typically arises solely in the criminal context, and…more

Attorney-Client Privilege, Corporate Officers, Fifth Amendment, SEC, Securities Fraud

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Texas Court: No Prejudice Required to Deny for Late Reporting Under a Claims-Made Policy

This summer in Nicholas Petroleum, Inc. v. Mid-Continent Cas. Co., 2015 WL 4456185, 2015 Tex. App. LEXIS 7489 (Tex.App., Jul. 21, 2015), a Dallas panel of Texas’ intermediate level appellate court rejected policyholder…more

Appeals, Claims Made Policy, Contamination, Environmental Liability, Insurance Industry

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Third Circuit Invalidates HHS’ Medicare Wage Index Reclassification Rule

On July 23, 2015, the Third Circuit invalidated, as being contrary to the Medicare statute, the U.S. Department of Health and Human Services’ (HHS) Medicare wage index “reclassification rule,” 42 C.F.R. § 412.230(a)(5)(iii)…more

Chevron Deference, HHS, Hospitals, Medicare, Reclassification Rules

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Colorado: No Prejudice Required to Enforce Date-Certain Notice Requirements in Claims-Made Policies

In Colorado, under the notice-prejudice rule, an insured who gives late notice of a claim to his or her liability insurer does not lose coverage benefits unless the insurer proves that the late notice prejudiced its interests…more

Claims Made Policy, D&O Insurance, Liability Insurance, Notice Prejudice Rule, Travelers

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Labor and Employment Observer 2015/2016

The Irony in Regulating Employee Social Media Speech: the NLRB vs. the FTC - BREAKING NEWS: Employees use social media. A lot. And, in a related story, Bush beat Gore, according to the Supreme Court. All breaking news, of…more

Employer Liability Issues, Exempt-Employees, FLSA, FTC, Gun Laws

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2015 Year End Tax Update

A BRIEF LOOK BACK - Where We Are Now – The View from Bucks County, Thanksgiving 2015 - 1. “Make America Great Again!” Sounds like a terrific idea, even for those (few?) of us who think America is already great and who…more

Affordable Care Act, Corporate Taxes, Data Breach, FICA Taxes, IRS

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Understanding the Risk and Defending Against Food-Borne Illness Class Action Litigation

Companies in the food and beverage industry are routinely confronted with false advertising claims making incredulous allegations. Recently, consumers claimed to be misled because “Froot Loops” has no real fruit and there are no…more

Class Certification, Defense Strategies, Food Contamination, Food Manufacturers

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Practice Leasing: An Alternative Worth Considering

As hospitals look to forge alignments with medical staff physicians and many “independent” physicians consider whether they want to become employees of a hospital or health system or remain independent operators of their own…more

Healthcare, Hospitals, Leases, Physicians

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Third Circuit Says No To Insured’s Request For Reserve Information

In a victory for insurers, the United States Court of Appeals for the Third Circuit recently rejected an insured’s discovery request for reserve information in a first-party bad faith action. In its April 29, 2014 decision in…more

Appeals, Bad Faith, Discovery, Insureds

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A New Twist in the California Debate Over Allegedly Inadequate Replacement Cost Limits in Homeowners’ Policies

The April 8, 2015 decision of the California Court of Appeals in Ass’n. of Cal. Insurance Companies v. Jones, 2015 WL 1569669, 2015 Cal. App. LEXIS 298 (Cal.Ct.App., Apr. 8, 2015) held that the state’s Insurance Commissioner…more

Appeals, Homeowner's Insurance, Insurance Litigation, Property Damage, Replacement Costs

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Texas Rule Change: Supreme Court Holds Loss of Use Damages Are Recoverable Where Property Total Loss

In J & D Towing, LLC v. American Alternative Insurance Corporation, No. 14-0574, 2016 WL 91201 (Tex. Jan. 8, 2016), the Texas Supreme Court considered J & D Towing, LLC’s (“J & D”) claim for loss of use damages under its…more

Denial of Insurance Coverage, Insurance Industry, Loss of Use, TX Supreme Court, Uninsured and Under-Insured Motorists

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New Condominium Sponsor-Developers Guidelines Go Into Effect November 1: Certificates of Occupancy

Earlier this week, the Real Estate Finance Bureau of the New York State Office of the Attorney General (REF) provided significant guidance on several issues facing sponsor-developers of new construction and gut-renovation…more

Board of Directors, Certificates of Occupancy, Condominium Corporation, Condominiums, Construction Project

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Hawaii Supreme Court Holds a Primary Insurer Cannot Gamble with the Excess Insurer’s Money

On June 29, 2015, in responding to a certified question from the U.S. District Court for the District of Hawaii, the Hawaii Supreme Court held in St. Paul Fire & Marine Ins. Co. v. Liberty Mutual Ins. Co., SCCQ-14-0000727, that…more

Bad Faith, Covenant of Good Faith and Fair Dealing, Equitable Subrogation, Excess Policies, Insurance Settlements

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ESOPs’ Fables: On Winning Wars but Losing Battles

As the end of the Supreme Court term approached, decisions came down fast and furious. Last week’s big decisions, at least around our nerdish water cooler, were Halliburton and Fifth Third Bancorp v. Dudenhoeffer. (Yes, we know…more

Cell Phones, Employee Benefits, ERISA, ESOP, FIfth Third Bancorp v Dudenhoeffer

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SEC and FINRA Announce 2015 Exam Priorities

The U.S. Securities and Exchange Commission (SEC) and the Financial Industry Regulatory Authority (FINRA) recently announced their 2015 exam priorities for their respective examination programs. Both the SEC and FINRA have…more

Broker-Dealer, FINRA, Industry Examinations, Investment Adviser, OCIE

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Eleventh Circuit Finds No Bad Faith in Multiple-Claimant Claims-Handing Situation

In a new decision, Mesa v. Clarendon National Ins. Co., 2015 WL 5059496, 2015 U.S. App. LEXIS 15203 (11th Cir., Aug. 28, 2015), the Court of Appeals found that the insurer’s claims-handling of multiple claimants did not rise to…more

Appeals, Auto Insurance, Bad Faith, Car Accident, Insurance Industry

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Court Holds that Privacy Violations Allegations Are Not Covered

A federal court in Washington recently issued an unpublished decision affirming that a common policy exclusion protects insurers from having to provide coverage in certain cases of alleged privacy violations. The same court…more

Commercial General Liability Policies, Corporate Counsel, Insurance Industry, Personally Identifiable Information, Policy Exclusions

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Will Plan Participants’ Demands for Perfection Retire Large 401(k) Plans?

Participants in Anthem Inc.’s $5.1 billion 401(k) plan have sued plan fiduciaries, alleging that they have top-shelf tastes that constitute a breach of the duties of loyalty and prudence owed to participants, and that the…more

401k, Anthem Insurance, Corporate Counsel, Duty of Loyalty, Duty of Prudence

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Eleventh Circuit Holds No Duty to Defend Directors Serving in Mixed Capacities

On June 22, 2015, the 11th Circuit affirmed a Georgia federal court decision that there was no coverage under a director’s and officer’s (D&O) insurance policy for claims asserted by beneficiaries of a family trust against a…more

Beneficiaries, Closely Held Businesses, D&O Insurance, Duty to Defend, Family Trusts

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DOL Issues Re-Proposed Regulations Defining Investment Advice Fiduciary and Proposes New PTEs

The U.S. Department of Labor (DOL) issued long awaited re-proposed regulations governing fiduciary status and investment advice titled “Definition of the Term ‘Fiduciary’; Conflict of Interest Rule—Investment Advice” for public…more

DOL, ERISA, Fiduciary Duty, FINRA, Investment Adviser

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Washington Court of Appeals Holds No Duty to Defend: An Invitation to Initiate Cleanup Is Not A Suit

On June 2, 2014, the Washington State Court of Appeals issued a published opinion regarding what constitutes a “suit” in the context of environmental liability claims under the Model Toxics Control Act (MTCA). The court held…more

Contamination, Department of Toxic Substances Control, Duty to Defend, Toxic Exposure

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Finding Bad Faith in Kentucky Requires Evidence of Outrageous Conduct By Insurer

In its recent decision in Powell v. Cherokee Insurance Company, Case No.: 5:09-CV-00205, the U.S. District Court for the Western District of Kentucky reaffirmed that in a third-party bad faith lawsuit alleging failure to timely…more

Bad Faith, Burden of Proof, Evidence, Insurance Industry, Third-Party

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“Uncollectibility” Is an Affirmative Defense to Legal Malpractice Claims in Washington

The Washington Supreme Court addressed two issues of first impression regarding legal malpractice claims in Schmidt v. Coogan, No. 88460-9, (October 9, 2014) and held: (1) that “uncollectibility” is an affirmative defense to a…more

Attorney Malpractice

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Pennsylvania High Court Rules First Manifestation Trigger Applies to Property Damage Claims

The Pennsylvania Supreme Court in Pennsylvania Nat’l Mut. Cas. Ins. Co. v. St. John, et al., 2014 WL 7088712 (December 15, 2014), has affirmed that a first manifestation trigger applies to property damage claims under a CGL…more

Commercial General Liability Policies, Insurance Litigation, Multiple Trigger, Property Damage, Triggering Event

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Supreme Court Rules that FERC Wholesale Markets Can Compensate Demand Response Providers

In late January, the Supreme Court issued a decision in Federal Energy Regulatory Commission v. Electric Power Supply Association, et al., 577 U.S. __, slip. op. (2016) upholding Federal Energy Regulatory Commission (FERC) Order…more

Demand Response, Electricity, Energy Market, Energy Sector, Federal Power Act

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Are We Becoming More Social?

It goes without saying that there’s been much attention given to the use of social media in litigation. As litigators, we regularly monitor Facebook, LinkedIn, Instagram and other social media networks to surveille those who…more

Notifications, Service of Process, Social Media, Social Networks

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Florida, Georgia And Texas Appraisal Update: Is Causation A Coverage Question For The Court Or A Damages Question For The Panel?

In most jurisdictions, underlying coverage issues must be resolved prior to invoking appraisal in a first-party property claim. The question of what constitutes a coverage issue (typically reserved for a court’s judicial…more

Appraisal, Causation, Damages, Homeowner's Insurance, Insurance Industry

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Facebook v. Typosquatters: Damages and Domains Awarded Under Anticybersquatting Consumer Protection Act

On April 30, 2013, Magistrate Judge Westmore recommended that the U.S. District Court, Northern District of California award Facebook $2.8 million in damages from typosquatters under the Anticybersquatting Consumer Protection…more

Consumer Protection Act, Cybersquatting, Damages, Domain Names, Facebook

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Can Grandma and Grandpa Get Custody In Pennsylvania?

We constantly receive calls from grandparents inquiring about their custody rights. In some instances, the grandparent has been the child’s primary caretaker from birth…more

Child Custody

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Supreme Court Affirms Bankruptcy Court Jurisdiction and 3rd Circuit Approves Structured Dismissals

Jurisdiction of Bankruptcy Courts to Enter Final Judgment on “Stern Claims” Based on Consent of Parties Affirmed - The U.S. Supreme Court in Wellness Int’l Network, Ltd. v. Sharif explicitly affirmed the jurisdiction of…more

Article I, Article III, Chapter 7, Jurisdiction, SCOTUS

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How Convenient: Vessel Registration and Mortgages in the Republics of the Marshall Islands and Liberia

Two registries of significant interest to shipowners are the registries of the Republics of the Marshall Islands and Liberia. Significantly, insofar as it does not conflict with the statutory laws, each country has adopted the…more

Federal Admiralty Law, Maritime Transport, Vessels

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Gun Control and HIPAA

In the wake of recent gun violence and in a concerted effort to protect public safety, the Department of Health and Human Services (HHS) released a final rule published in the Federal Register January 6, 2016, that modifies the…more

Federal Register, Final Rules, Gun Laws, HHS, HIPAA

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2014/2015 Labor and Employment Observer

In This Issue: - Message from the Chair - On the Horizon: Is Obama Remaking the Workplace While Leaving Congress Behind? - The 2014 Supreme Court Decisions Every Employer Should Know - What to Expect from the…more

Affordable Care Act, Barack Obama, Big Data, Cybersecurity, E-Verify

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Historic U.S.-China Agreement to Cut Greenhouse Gas Emissions

In a surprise announcement last evening from Beijing, President Obama and Chinese President Xi Jinping committed to ambitious cuts in carbon emissions over the next 15 years with the hope of preventing catastrophic global…more

Carbon Emissions, China, Climate Change, Global Warming

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PA Supreme Court Allows Certain Mesothelioma Claimants to Sue Their Employer

The Pennsylvania Supreme Court recently issued a ground-breaking decision that could potentially expose employers to a wave of new lawsuits by former employees suffering from mesothelioma. In its November 22, 2013 opinion in the…more

Employer Liability Issues, Mesothelioma, Workers' Compensation Defense

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Third Circuit Holds Companies in Bankruptcy Can Reject Expired CBAs

In a ruling that comes as a blow to organized labor and a boon to employers in bankruptcy, the U.S. Court of Appeals for the Third Circuit recently broke new appellate ground in holding that Section 1113 of the Bankruptcy Code…more

Collective Bargaining Agreements (CBA), Commercial Bankruptcy, Expiration Date, NLRA, NLRB

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The Failures and Future of the EB-5 Regional Center Program: Can it be Fixed?

Senate Committee on the Judiciary Hearing - The Senate Committee on the Judiciary (“Committee”) held a hearing on February 2nd regarding the future of the EB-5 Regional Center Program. The hearing was led by Senators Chuck…more

DHS, EB-5, EB-5 Regional Centers, Foreign Investment, Immigrant Investor Program

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2014/2015 Labor and Employment Observer

In This Issue: - Message from the Chair - On the Horizon: Is Obama Remaking the Workplace While Leaving Congress Behind? - The 2014 Supreme Court Decisions Every Employer Should Know - What to Expect from the…more

Affordable Care Act, Barack Obama, Big Data, Cybersecurity, E-Verify

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Investigating Employee Wrongdoing

Companies in every industry—private and public—struggle with the difficult task of promptly identifying employee wrongdoing and responding appropriately. The National Football League continues to be embroiled in a controversy…more

Chief Compliance Officers, Discipline, Employer Liability Issues, Employment Policies, Ethics

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Disclaimer Requirement of N.Y. Insurance Law § 3420(d)(2) Held Not to Apply to Property Damage Claims

The New York Court of Appeals recently confirmed that the heightened timeliness of disclaimer requirement in New York Insurance Law § 3420(d)(2) does not apply to claims arising from property damage, in KeySpan Gas East Corp. v…more

Disclaimers, Duty to Defend, Insurance Industry, Property Damage

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Pennsylvania Federal Court Reiterates EMTALA’s Inapplicability to Transfers of “Admitted Patients”

On February 23, 2015, the District Court in Baney v. Fick held that a patient’s complications arising from elective surgery do not fall under the purview of the Emergency Medical Treatment and Labor Act, 42 U.S.C. § 1395dd,…more

Healthcare, Surgery

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Newly Paved Path for Asserting Construction Defect Claims in Florida

Florida Governor Rick Scott signed HB 87 into law, codified at ch. 2015-165, which amends the notice and opportunity to cure provisions of Chapter 558, Florida’s Construction Defect Statute. These amendments will go into effect…more

Amended Legislation, Commercial General Liability Policies, Construction Defects, Construction Industry, Governor Scott

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U.S. Appeals Court Upholds the FTC’s Authority to Police Cybersecurity Practices

In a highly anticipated and precedential opinion issued earlier this week, the Third Circuit Court of Appeals upheld the FTC’s authority to regulate corporate cybersecurity. The decision in Federal Trade Commission v Wyndham…more

Administrative Authority, Cybersecurity, Data Breach, Fair Notice, FTC

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Some Considerations when Preparing to Try a Property Damage Subrogation Case in the Age of CSI

Recent criminal trials turned national media events, such as the Trayvon Martin and Casey Anthony trials, have highlighted modern jurors’ expectations for forensic evidence. Commentators have termed jurors’ expectations for…more

Evidence, Forensic Examination, Jury Instructions, Jury Trial, Litigation Strategies

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FAA Restores India to Category 1 Under International Aviation Safety Assessment Program

On April 8, 2015, U.S. Department of Transportation (DOT) Secretary Anthony Foxx and Federal Aviation Administration (FAA) officials announced during a meeting in New Delhi with India’s Minister of Civil Aviation Ashok Gajapathi…more

Aviation Industry, Federal Aviation Administration (FAA), India

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Newly Paved Path for Asserting Construction Defect Claims in Florida

Florida Governor Rick Scott signed HB 87 into law, codified at ch. 2015-165, which amends the notice and opportunity to cure provisions of Chapter 558, Florida’s Construction Defect Statute. These amendments will go into effect…more

Amended Legislation, Commercial General Liability Policies, Construction Defects, Construction Industry, Governor Scott

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Progress in Medicare Takes Many Forms: Moving Ahead with Maintenance Care After Jimmo

Somehow, although certainly not from a clear reading of the Medicare statute, there was long a perceived rule that Medicare would only cover certain services if the patient was making measurable improvement. This created the…more

CMS, Healthcare, Medicare

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DOL Sets Its Sights on Small Businesses in Recent Joint Employer Guidance

The NLRB made a splash when it laid out a new standard to capture employers previously thought to be outside the “joint employer” net with its Browning-Ferris decision in April 2015, and now the Department of Labor is making…more

Administrative Interpretation, Browning-Ferris Industries of California Inc., DOL, FLSA, Joint Employers

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Will Congress Come Together for Telemedicine?

Consistent with what we have been seeing in our own practice, and consumers’ growing demand for better access to telemedicine services, a bi-partisan movement is growing in both houses of Congress to expand telehealth services,…more

Medicare Access and CHIP Reauthorization (MACRA), MIPS, Proposed Legislation, Telemedicine

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2014/2015 Labor and Employment Observer

In This Issue: - Message from the Chair - On the Horizon: Is Obama Remaking the Workplace While Leaving Congress Behind? - The 2014 Supreme Court Decisions Every Employer Should Know - What to Expect from the…more

Affordable Care Act, Barack Obama, Big Data, Cybersecurity, E-Verify

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Securities Law and Corporate Governance Developments: A Look Back at 2015 and a Preview of 2016

Initiatives by Congress, the Securities and Exchange Commission (SEC), activist shareholders, and federal and state courts from 2015 will reshape public company disclosure and policies, and offer new avenues for private…more

Capital Raising, CEO's, Clawbacks, Corporate Governance, Crowdfunding

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A Supplemental Whitepaper Addressing Sandy’s Impact on Commercial and Residential Property Owners and Construction Companies

Superstorm Sandy, which made landfall near Atlantic City, N.J. on October 29, 2012, brought virtually unprecedented destruction to a large swath of the northeastern United States including, in particular, coastal New Jersey, New…more

Commercial Insurance Policies, Flood Insurance, Hurricane Sandy, Property Insurance

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Hawaii Supreme Court Holds a Primary Insurer Cannot Gamble with the Excess Insurer’s Money

On June 29, 2015, in responding to a certified question from the U.S. District Court for the District of Hawaii, the Hawaii Supreme Court held in St. Paul Fire & Marine Ins. Co. v. Liberty Mutual Ins. Co., SCCQ-14-0000727, that…more

Bad Faith, Covenant of Good Faith and Fair Dealing, Equitable Subrogation, Excess Policies, Insurance Settlements

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“Fiscal Cliff” Bill Reinstates and Extends Business and Personal Tax Credits for Energy Efficient Residential Properties

On January 1, 2013, the U.S. Congress passed last minute legislation known as the American Taxpayer Relief Act of 2012 to avoid automatic increases in income taxes for millions of Americans, as well as draconian cuts to the…more

Energy Efficiency, Energy-Efficiency Tax Credits, Fiscal Cliff, Tax Credits

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Supreme Court Opens Door to Increased Role for State Courts and State Regulators in the Energy Sector

The Supreme Court today allowed the states a greater role in regulating the energy sector. In ONEOK, the Court held that states can regulate activities that affect both wholesale and retail transactions to the extent that the…more

Energy Sector, Federal Power Act, FERC, Jurisdiction, Natural Gas Act

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Congressional Questions on LNG Exports Could Impact the Jones Act

Last month, Congress began consideration of comprehensive legislation to reauthorize the Coast Guard and other maritime transportation programs. Consideration of such legislation is an annual occurrence and generally moves…more

Exports, Jones Act, Liquid Natural Gas, Maritime Transport, Natural Gas

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Revisiting the New York Convention as Burundi Becomes its 150th Signatory

In recognition of the ever-increasing importance of international arbitration as a method of resolving international commercial disputes, Burundi recently became the 150th country to adopt the New York Convention on the…more

Arbitration, Arbitration Agreements, Arbitration Awards, Foreign Arbitration Clauses, International Arbitration

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Supreme Court of Texas Rules Installation of Faulty Product Not Covered by Standard CGL Policy

In U.S. Metals, Inc. v. Liberty Mutual Group, Inc., No. 14-0753, 2015 Tex. LEXIS 1081 (Tex. Dec. 4, 2015) the Supreme Court of Texas ruled that installation of a faulty component does not cause physical injury to the machinery…more

Commercial General Liability Policies, Exxon Mobil, Liberty Mutual Insurance Company, Policy Exclusions, Popular

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Delaware LLC Act Amended to Confirm Fiduciary Duties Exist Absent Express Agreement to the Contrary

Effective August 1, 2013, Section 18-1104 of the Delaware Limited Liability Company Act (the Act) was amended to confirm that, absent a provision in the limited liability company agreement to the contrary, the managers and…more

Delaware Limited Liability Company Act, Fiduciary Duty, LLC, New Legislation

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Beware of Defendants Who Attempt to Push the Boundaries of the Economic Loss Rule (Texas)

In most jurisdictions today, to recover under a strict products liability theory, the Plaintiff must prove that a defect in the subject product was a producing cause of the Plaintiff’s damages. More importantly, in order to…more

Economic Damages, Economic Loss Doctrine

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PA Supreme Court Allows Certain Mesothelioma Claimants to Sue Their Employer

The Pennsylvania Supreme Court recently issued a ground-breaking decision that could potentially expose employers to a wave of new lawsuits by former employees suffering from mesothelioma. In its November 22, 2013 opinion in the…more

Employer Liability Issues, Mesothelioma, Workers' Compensation Defense

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Connecticut Supreme Court Likely To Affirm Personal Injury Coverage For Data Breach Requires Actual Publication To Third Parties

The Connecticut Supreme Court heard oral arguments Monday April 27th on an appeal testing the scope of coverage afforded for a business’s data loss or theft events under its Commercial General Liability insurance’s “Personal…more

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2014/2015 Labor and Employment Observer

In This Issue: - Message from the Chair - On the Horizon: Is Obama Remaking the Workplace While Leaving Congress Behind? - The 2014 Supreme Court Decisions Every Employer Should Know - What to Expect from the…more

Affordable Care Act, Barack Obama, Big Data, Cybersecurity, E-Verify

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Update on Significant DOT, FAA and Other Federal Agencies’ Aviation-Related Regulatory Actions - February 2016

This edition of the Cozen O’Connor Aviation Regulatory Update includes the recently signed U.S.-Mexico bilateral agreement that liberalizes air services between the two countries, new Cuba-related regulations loosening…more

Aircraft, Aviation Industry, Bilateral Agreements, Cuba, Department of Transportation (DOT)

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Shutting Down a Capital City: How High Will Business Interruption Claims Go?

On Thursday, January 9, 2014, a major chemical spill into West Virginia’s Elk Rivet cut off water to more than 300,000 people in the Kanawha Valley and surrounding nine counties. The chemical leak was from a facility owned by…more

Business Interruption, Chemicals, Discharge of Pollutants, Environmental Claims, Environmental Liability

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Data Breach Liability Exclusion – It’s Not Your Father’s CGL

No business is immune to data breach. Digital data in particular can be lost in innumerable ways, causing serious business interruptions and consumer injuries. After falling victim to a hack, virus, or cyber theft, companies…more

Commercial General Liability Policies, Cyber Insurance, Cybersecurity, Data Breach, Liability Insurance

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Texas Rule Change: Supreme Court Holds Loss of Use Damages Are Recoverable Where Property Total Loss

In J & D Towing, LLC v. American Alternative Insurance Corporation, No. 14-0574, 2016 WL 91201 (Tex. Jan. 8, 2016), the Texas Supreme Court considered J & D Towing, LLC’s (“J & D”) claim for loss of use damages under its…more

Denial of Insurance Coverage, Insurance Industry, Loss of Use, TX Supreme Court, Uninsured and Under-Insured Motorists

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Ticket to Sue – Pennsylvania’s Registration Requirement for Foreign Business Entities

Consider the following scenario: You represent a foreign corporation in a breach of contract action in Pennsylvania state court. Your client is seeking substantial damages for unpaid widgets that it shipped to the defendant…more

Breach of Contract, Doing Business, Foreign Corporations, Registration Requirement

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Young v. UPS Calls for a Review of Accommodations Offered to Pregnant Employees

On March 25, 2015, the U.S. Supreme Court held that a plaintiff can demonstrate at least a genuine dispute as to whether an employer violates the Pregnancy Discrimination Act (PDA) by accommodating certain categories of injured…more

Essential Functions, PDA, Pregnancy Discrimination, Reasonable Accommodation, SCOTUS

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Supreme Court Opens Door to Increased Role for State Courts and State Regulators in the Energy Sector

The Supreme Court today allowed the states a greater role in regulating the energy sector. In ONEOK, the Court held that states can regulate activities that affect both wholesale and retail transactions to the extent that the…more

Energy Sector, Federal Power Act, FERC, Jurisdiction, Natural Gas Act

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Financeable Ground Leases – They’re Not Just for Development Sites Anymore

In years past, ground leases were used primarily as vehicles for the development or redevelopment of “stand alone” real estate. The fee owner – typically an investment group that purchased an income property years ago and now…more

Land Developers, Leases, Lenders, Mortgages, Real Estate Development

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A Supplemental Whitepaper Addressing Sandy’s Impact on Commercial and Residential Property Owners and Construction Companies

Superstorm Sandy, which made landfall near Atlantic City, N.J. on October 29, 2012, brought virtually unprecedented destruction to a large swath of the northeastern United States including, in particular, coastal New Jersey, New…more

Commercial Insurance Policies, Flood Insurance, Hurricane Sandy, Property Insurance

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Some Lessons From Berg v. Nationwide Mut. Ins. Co.

On July 22, 2015, the Pennsylvania trial court in Berg v. Nationwide Mut. Ins. Co., Civ. Action No. 98-813 (Pa. Common Pleas, Jul. 22, 2015) filed a supplemental opinion under Pa. R.A.P. 1925(a) in connection with the appeal of…more

Appeals, Attorney's Fees, Bad Faith, Car Accident, Insurance Litigation

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SCOTUS to Consider Whether FCRA Violation Confers Article III Standing on Individual

On April 27, 2015 the Supreme Court of the United States granted certiorari on a petition filed by Spokeo, Inc., asking the court to review the Ninth Circuit opinion in Robins v. Spokeo, Inc., 742 F.3d 409 (9th Cir. 2014)…more

Article III, ERISA, FCRA, SCOTUS, Spokeo v Robins

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Labor and Employment Observer 2012/2013

In This Issue: - Message from the Chair - A Second Obama Administration’s Impact on Labor and Employment Issues - Will There be Comprehensive Immigration Legislation After the 2012 Presidential Election? -…more

Affordable Care Act, EEOC, FMLA, Hurricane Sandy, Immigration Reform

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Washington Appellate Court Holds That Below-Limits Settlement Fails to Trigger Excess Policies

On November 12, 2013, in Quellos Group LLC v. Federal Insurance Company, the Washington Court of Appeals affirmed summary judgment in favor of two excess professional liability insurers because the excess policies “require[d]…more

Excess Policies, Policy Limits, Settlement

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Indiana Court Dismisses Bad Faith Allegations and Praises Insurer for Timely Claims-Handling

A recent federal District Court decision from Indiana, Autumn Glen Homeowners Ass’n. v. Travelers Ind. Co. of America, 2015 WL 1256391, 2015 U.S. Dist. LEXIS 33317 (S.D. Ind., Mar. 18, 2015) provides insight into both…more

Good Faith, Homeowners' Association, Insurance Industry, Insurance Litigation, Property Damage

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Georgia Supreme Court: Insured Cannot Sue for Settlement Amount of Bad Faith Absent Insurer’s “Consent to Settle”

On April 20, 2015, the Georgia Supreme Court unanimously held that when an insured fails to seek its insurer’s consent to settle a claim, the insured cannot pursue litigation against its insurer to recover settlement amounts…more

All-Party Consent, GA Supreme Court, Insurance Litigation, Settlement

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New OFAC General License Will Facilitate Trade with Burma

A new general license issued by the Department of the Treasury’s Office of Foreign Assets Control (OFAC) will make it easier to transport goods between the United States and Burma…more

Burma, Exports, General Licenses, Imports, OFAC

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Unclaimed Property: Court Holds Life Insurer’s Escheatment Duties Not Triggered By Insured’s Death

In an opinion filed August 5, 2014, the Florida First District Court of Appeal held that under Florida’s unclaimed property law, life insurance proceeds are not “due and payable,” and the dormancy period does not begin to run,…more

Death Benefits, Escheat, Life Insurance, Notice Requirements, Unclaimed Property

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Labor And Employment Observer - 2013/2014

In This Issue: Message from the Chair; Social Media and the Workplace: 2013 and Beyond; Unpaid Internships: Training Ground or Legal Landmine?; Supreme Court’s Nassar Decision Sets Higher Causation Standard for a Variety…more

Affirmative Action, Background Checks, Big Data, Causation, D.R. Horton

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The FCC Asserts its Role as Regulator of Data Security

The FCC recently signaled its intention to move aggressively into the realm of data security regulation. On October 24, 2014, the agency released a Notice of Apparent Liability for Forfeiture (NAL), ordering two…more

Corporate Counsel, Data Breach, Data Protection, FCC, Forfeiture

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Sixth Circuit Refuses to Create a Cause of Action for Reverse Bad Faith

In an opinion handed down last week, the Sixth Circuit Court of Appeals refused to adopt a new cause of action under Kentucky law for a reverse bad faith claim by an insurer against its insured where the Kentucky Supreme Court…more

Appeals, Bad Faith, Indictments, Insurance Fraud, Insurance Industry

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Facebook "Friends", 4th Amendment Privacy & Probable Cause

A recent court decision has added support to the idea that there is no privacy on the internet. In United States v. Meregildo, defendant Melvin Colon moved to suppress evidence seized from his Facebook account pursuant to a…more

Evidence, Evidence Suppression, Facebook, Facebook Friends, Fourth Amendment

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Court Invalidates Exception to Tolling Provision for Medical Malpractice Cases Brought by Minors

In Schroeder v. Weighall, 2014 WL 172665 (Wa., Jan. 16, 2014), the Washington Supreme Court invalidated another portion of Washington’s medical malpractice reform legislation. Specifically, the court invalidated RCW 4.16.190(2),…more

Healthcare, Medical Malpractice, Minors, Statute of Limitations, Tolling

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Cozen Comics, The Flame, Vol. 1, Chapters 1-4, The Subro Recovery

We have all seen the Herculean deeds of a superhero on television or in the movies. They knock over buildings, use buses as weapons and generally cause super-sized amounts of property damage. Have you ever wondered who pays for…more

Property Damage, Subrogation

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Third Circuit Affirms Bad Faith Involuntary Bankruptcy Dismissal, Increasing Risk of Punitive Damages

Last week’s decision by the U. S. Court of Appeals for the Third Circuit in In re: Forever Green Athletic Fields, Inc., No. 14-3906 (3d Cir. Oct. 16, 2015) held that an involuntary bankruptcy petition filed under 11 U.S.C. § 303…more

Bad Faith, Bankruptcy Code, Chapter 11, Chapter 7, Compensatory Damages

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S.D.N.Y. Disqualifies Securities Class Action Plaintiffs’ Expert and Denies Class Certification

Recently, in IBEW Local 90 Pension Fund v. Deutsche Bank AG, No. 11-cv-4209, 2013 U.S. Dist. LEXIS 155136 (S.D.N.Y. Oct. 29, 2013), District Judge Katherine Forrest declined to certify a class of securities plaintiffs and…more

Class Action, Class Certification, Daubert Standards, Disqualification, Expert Witness

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Utilities Sector To Be a Focus of Executive Order Directing Development of Critical Infrastructure Cybersecurity Framework

Little more than a week after reports of cyber attacks targeted at the Department of Energy, The New York Times and The Wall Street Journal, President Obama declared in his State of the Union address that these forms of attacks…more

Critical Infrastructure Sectors, Cyber Attacks, Cybersecurity, Cybersecurity Framework, DHS

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Supreme Court Affirms Bankruptcy Court Jurisdiction and 3rd Circuit Approves Structured Dismissals

Jurisdiction of Bankruptcy Courts to Enter Final Judgment on “Stern Claims” Based on Consent of Parties Affirmed - The U.S. Supreme Court in Wellness Int’l Network, Ltd. v. Sharif explicitly affirmed the jurisdiction of…more

Article I, Article III, Chapter 7, Jurisdiction, SCOTUS

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Supreme Court Rejects Class Plaintiff’s Attempt To Avoid Federal Court By Stipulation Damages Will Be Less Than $5,000,000

In Standard Fire Ins. Co. v. Knowles, the U.S. Supreme Court held that a class-action plaintiff may not avoid the effect of the federal Class Action Fairness Act (CAFA) by “stipulating” he will not seek damages in excess of…more

Amount in Controversy, CAFA, Class Action, Class Certification, Damages

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Oregon Adopts Covenants Not To Execute/Assignments

This past week, the Supreme Court of Oregon overturned 42 years of precedent, holding that Stubblefield v. St. Paul Fire & Marine, 267 Ore. 397, 517 P.2d 262 (1973) erred when it decided that a covenant not to execute given in…more

Assignments, Construction Defects, Insurance Litigation, Negligence, OR Supreme Court

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Israeli Tax Authority Extends Deadline to Register Family Trusts and Elect Tax Regime

On June 29, 2015, the Israeli Tax Authority extended the deadline for registration of Family Trusts (sometimes referred to as Relatives Trusts), which are trusts created by a non-Israeli grantor for the benefit of one or more…more

Double Taxation, Family Trusts, Filing Deadlines, Income Taxes, Israel

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Supreme Court: Reverse Payment Settlements Subject to Antitrust Scrutiny

On June 17, 2013, the U.S. Supreme Court handed down a decision that addressed a “reverse payment” settlement agreement between a brand-name pharmaceutical company (plaintiff patent holder) and multiple generic drug companies…more

ANDA, Antitrust Litigation, FTC, FTC v Actavis, Generic Drugs

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Benefit Corporations – A New Type Of Corporation – Are Now Authorized In Pennsylvania

On January 23, 2013, the Pennsylvania Benefit Corporation Act (the Act) became effective. The Act authorizes a new type of for-profit business corporation known as a benefit corporation. Pennsylvania is now one of 12 states that…more

Benefit Corporations, Corporate Officers, Directors, Investors, Shareholders

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Update on Significant DOT, FAA and Other Federal Agencies’ Aviation-Related Regulatory Actions - February 2016

This edition of the Cozen O’Connor Aviation Regulatory Update includes the recently signed U.S.-Mexico bilateral agreement that liberalizes air services between the two countries, new Cuba-related regulations loosening…more

Aircraft, Aviation Industry, Bilateral Agreements, Cuba, Department of Transportation (DOT)

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Malaysian Block Exemption for Liner Shipping Agreements; Read the Fine Print to Ensure Compliance

Cooperative agreements among liner shipping companies have existed in most trades for more than 100 years. Most major trading nations in Asia and the Pacific Rim have recognized the importance of these agreements to both the…more

Compliance, Shipping, Vessels

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Highlights of the Omnibus HIPAA/HITECH Final Rule

On January 25, 2013, the Office of Civil Rights (OCR) of the Department of Health & Human Services (HHS) published the long-awaited omnibus final regulation governing health data privacy, security and enforcement (Omnibus Rule)…more

Affirmative Defenses, Business Associates, Compliance, Data Breach, Enforcement

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Supreme Court Rules that FERC Wholesale Markets Can Compensate Demand Response Providers

In late January, the Supreme Court issued a decision in Federal Energy Regulatory Commission v. Electric Power Supply Association, et al., 577 U.S. __, slip. op. (2016) upholding Federal Energy Regulatory Commission (FERC) Order…more

Demand Response, Electricity, Energy Market, Energy Sector, Federal Power Act

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Collectibility in Legal Malpractice Suits – A Required Element in Proving Damages: Schmidt v. Coogan

In Schmidt v. Coogan, No. 41279-9-II, 2012 WL 5331567 (October 30, 2012), the Washington Court of Appeals held that (1) collectibility is a required component in determining legal malpractice damages and (2) the failure to prove…more

Attorney Malpractice, Damages

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Cybersecurity…At Least There Is One Thing Congress Can Agree On

While most political observers were focused last week on the debates surrounding passage of the so-called “Cromnibus” spending bill, less noted was the fact that the U.S. Congress managed to pass a number of cyber-security bills…more

Cybersecurity, Data Protection, DHS, National Security

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Benchmarking Begins for Owners of Large Commercial Buildings in Philadelphia

Last year, we notified you that the city of Philadelphia adopted new energy benchmarking requirements to track and assess energy and water consumption for large commercial buildings. The time has come for owners to comply with…more

Benchmarks, Commercial Leases, Commercial Property Owners, Energy Efficiency, Environmental Policies

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IRS Releases Final Regulations Facilitating P3s and Mixed-Use Developments, and Remedial Actions

On October 26, 2015, the Internal Revenue Service released final allocation and accounting regulations (the Final Regulations) under Section 141 of the Internal Revenue Code of 1986, as amended (the Code) related to accounting…more

501(c)(3), Accounting, Allocation of Funds, Bond Financing, Final Rules

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A Good Faith Review of 2013

With the arrival of the new year, many are applying the mantra “out with the old, in with the new.” Although this may be motivational for personal resolutions, it does not generally apply in the context of law as last year’s law…more

Attorney-Client Privilege, Bad Faith, Confidential Information, D.R. Horton, Duty to Defend

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Malaysian Block Exemption for Liner Shipping Agreements; Read the Fine Print to Ensure Compliance

Cooperative agreements among liner shipping companies have existed in most trades for more than 100 years. Most major trading nations in Asia and the Pacific Rim have recognized the importance of these agreements to both the…more

Compliance, Shipping, Vessels

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The Start of a Promising New Relationship Between the U.S. and India

Narendra Modi, the newly elected prime minister of India and leader of more than 1 billion people, made his maiden visit to the White House at President Obama’s invitation en route to the U.N. General Assembly. Last May, Modi…more

Foreign Policy, India, Trade Policy, WTO

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New York State Legislation Alert: April 2014

New York’s recently passed legislation, effective April 1, 2014, significantly changes its estate tax regime and income tax regime for certain trusts. This Alert discusses the implications of this legislation…more

Estate Tax, Income Taxes, State Budgets, State Taxes, Trusts

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Recent Notable Recalls

By now most subrogation professionals understand the importance of keeping current with the frequent Consumer Product Safety Commission recall notices. For this blog post we note the following recent notable recalls for the…more

Consumer Product Safety Commission (CPSC), Product Recalls, Subrogation

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Gun Control and HIPAA

In the wake of recent gun violence and in a concerted effort to protect public safety, the Department of Health and Human Services (HHS) released a final rule published in the Federal Register January 6, 2016, that modifies the…more

Federal Register, Final Rules, Gun Laws, HHS, HIPAA

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Eighth Circuit Deems Legal Threats a “Claim;” Regulation Requiring Prejudice Inapplicable

On January 9, 2015, the U.S. Court of Appeals for the 8th Circuit handed down Philadelphia Consolidated Holdings Corp. v. LSi-Lowery Systems, Inc., which decided whether a technology company’s claim was covered under its…more

Appeals, Breach of Contract, Late Notices, Liability Insurance, Notice Prejudice Rule

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SEC, FINRA and the MSRB Announce Compliance Outreach Program for Municipal Advisors

The Securities and Exchange Commission (the SEC), the Financial Industry Regulatory Authority (FINRA), and the Municipal Securities Rulemaking Board (the MSRB) announced today the opening of registration for the first Compliance…more

Compliance, FINRA, MSRB, Municipal Advisers, SEC

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A Supplemental Whitepaper Addressing Sandy’s Impact on Commercial and Residential Property Owners and Construction Companies

Superstorm Sandy, which made landfall near Atlantic City, N.J. on October 29, 2012, brought virtually unprecedented destruction to a large swath of the northeastern United States including, in particular, coastal New Jersey, New…more

Commercial Insurance Policies, Flood Insurance, Hurricane Sandy, Property Insurance

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California Fair Pay Act: New Obligations for Employers or a Paper Tiger?

Widely lauded as the strongest equal pay legislation in the nation, California’s Fair Pay Act (Senate Bill 358) is now law. Effective January 1, 2016, the new law modifies California’s existing wage discrimination measures by…more

Anti-Retaliation Provisions, DLSE, Employee Rights, Employer Liability Issues, Equal Pay

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State Farm v. Hansen: Nevada Supreme Court Adopts California Independent Counsel Rules

The Nevada Supreme Court has adopted California’s independent counsel rules, holding that an insured is entitled to select its own counsel where an insurer’s coverage reservation creates an actual conflict of interest between…more

Attorney's Fees, Conflicts of Interest, Cumis Counsel, Duty to Defend, Insurance Industry

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EMV Credit Cards Are Coming, But Consumers Must Stay Vigilant

Major credit card companies, including Visa, MasterCard, Discover, and American Express, have announced plans to switch to EMV cards in the United States over the course of 2015…more

Banks, Credit Cards, Cybersecurity, EMV, Fraud

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How Convenient: Vessel Registration and Mortgages in the Republics of the Marshall Islands and Liberia

Two registries of significant interest to shipowners are the registries of the Republics of the Marshall Islands and Liberia. Significantly, insofar as it does not conflict with the statutory laws, each country has adopted the…more

Federal Admiralty Law, Maritime Transport, Vessels

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Facebook v. Typosquatters: Damages and Domains Awarded Under Anticybersquatting Consumer Protection Act

On April 30, 2013, Magistrate Judge Westmore recommended that the U.S. District Court, Northern District of California award Facebook $2.8 million in damages from typosquatters under the Anticybersquatting Consumer Protection…more

Consumer Protection Act, Cybersquatting, Damages, Domain Names, Facebook

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NLRB’s Joint Employer Ruling Threatens to Reorder Employment Relations in the Health Care Industry

More than many other industries, the American health care system has a highly fragmented set of interlocking business relationships. Services are provided in an integrated network by a host of service providers who operate…more

Browning-Ferris Industries of California Inc., Collective Bargaining, Healthcare, Hiring & Firing, Hospitals

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No Harm, No Foul in Apple E-Book Notice Screw Up

In mid-September, class notices went out in the ongoing Apple E-books class action lawsuit that might have momentarily had Apple’s attorneys a little concerned. Over three million potential members of the class received…more

Antitrust Litigation, Apple, Class Action, e-Books, Notice Requirements

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Supreme Court Willing to Reconsider Deference to Administrative Agencies

Most of the federal government's authority is exercised, on a day-to-day basis, through its administrative agencies. Central to the efficiency of those agencies — such as it is — is the judiciary's substantial deference to…more

Clean Water Act, EPA, Logging, Permits, SCOTUS

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Pennsylvania High Court Rules First Manifestation Trigger Applies to Property Damage Claims

The Pennsylvania Supreme Court in Pennsylvania Nat’l Mut. Cas. Ins. Co. v. St. John, et al., 2014 WL 7088712 (December 15, 2014), has affirmed that a first manifestation trigger applies to property damage claims under a CGL…more

Commercial General Liability Policies, Insurance Litigation, Multiple Trigger, Property Damage, Triggering Event

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SuperValu Latest in Debate over Standing

Last month, a Minnesota federal judge tossed out extensive multidistrict legislation concerning a proposed class action of SuperValu shoppers. Shoppers from Illinois, Minnesota, and Idaho had alleged that the supermarket chain…more

Article III, Class Action, Data Breach, Grocery Stores, Multidistrict Litigation

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California Statute Trumps Anti-Assignment Clauses in Liability Insurance Policies

In a unanimous decision that will have a serious impact on long-tail exposures, the California Supreme Court in Fluor Corp. v. Superior Court (Hartford Acc. & Indem.) has determined that policyholders may transfer liability…more

CA Supreme Court, Commercial General Liability Policies, Corporate Restructuring, Corporate Sales Transactions, Fluor

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Prohibiting Discovery of Attorney-Expert Communications

Are communications between attorneys and their retained experts discoverable? For now, the answer appears to be no, as a divided Pennsylvania Supreme Court recently affirmed a Superior Court decision “creat[ing] a bright-line…more

Appeals, Attorney-Client Privilege, Corporate Counsel, Discovery, Expert Witness

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Supreme Court’s Myriad Decision on Patenting Isolated DNA

The Supreme Court of the United States has now ruled on the patent eligibility of isolated DNA. On June 13, 2013, in Association for Molecular Pathology v. Myriad Genetics, Inc., the Court unanimously held that a “naturally…more

AMP v Myriad, DNA, Gene Patenting, Human Genes, Myriad

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Enforcing Confidential Mediation Settlements

It’s the morning of your big mediation and you are fully prepared to resolve your case without sacrificing key positions. You and your attorney have set your expectations as to what will happen, who will speak, what the mediator…more

Confidential Information, Enforcement, Mediation, Settlement

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Health Care Reform Implementation Update

The 113th Congress concluded its final legislative work with a $1.1 trillion spending bill, a tax extenders package, and a flurry of nomination confirmations including a new surgeon general. Additionally, the Affordable Care Act…more

Affordable Care Act, CMS, Healthcare, Healthcare Reform, HHS

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Attorney Means “Attorney” – Lessons for Subrogation Professions From Recent Federal Court Decisions Clarifying the Disclosure Requirements for Expert Materials

The Amendments to Rule 26 - In 2010, Federal Rule of Civil Procedure 26 was amended to provide new limitations on the discovery allowed for testifying experts in federal court cases. The most significant changes with…more

Discovery, Expert Witness, Rule 26, Subject Matter Experts, Subrogation

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Superstorm Sandy Is Causing New York and New Jersey Legislators to Reconsider Passing Legislation that Would Establish a Private Right of Action for Bad Faith Claim Handling

Policyholders in New York and New Jersey presently have no private right of action against insurance companies for alleged violations of each state’s respective statutory claim handling guidelines – New York’s Unfair Claim…more

Actual Malice, Attorney's Fees, Bad Faith, Damages, Hurricane Sandy

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Get the Insured to Sign a Subrogation Receipt

In Quebec civil law, the claim must be brought under the insurer’s name, and not under the insured’s name as in Ontario. Once the payment is made, the insurer is subrogated in the insured’s rights, and the right to bring a claim…more

Canada, Insurance Industry, Insureds, Subrogation

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A Good Faith Review of 2013

With the arrival of the new year, many are applying the mantra “out with the old, in with the new.” Although this may be motivational for personal resolutions, it does not generally apply in the context of law as last year’s law…more

Attorney-Client Privilege, Bad Faith, Confidential Information, D.R. Horton, Duty to Defend

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Pre-Emption of State-Law Design-Defect Claim Against Generic Drug Company

On June 24, 2013, in a 5-4 decision, the U.S. Supreme Court in Mutual Pharmaceutical Co., Inc. v. Bartlett held that state-law design-defect claims based on the inadequacy of a generic drug’s labeled warnings are pre-empted by…more

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

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Pennsylvania Court Dismisses Data Breach Claims

In 2014, the University of Pittsburgh Medical Center’s computer system was hacked, resulting in the disclosure of sensitive personal information of current and former employees, including names, addresses, birthdates, social…more

Class Action, Data Breach, Dismissals, Duty of Care, Economic Damages

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California Enacts New Data Privacy Legislation

California is once again initiating significant changes to protect informational privacy in the digital world. Governor Jerry Brown recently signed several pieces of legislation in an attempt to protect individuals against…more

Data Collection, Internet Privacy, New Legislation, Personally Identifiable Information, Privacy Laws

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If You Uncover Potential Juror Bias, Do You Tell The Court? Yes

On the eve of a criminal trial, you decide to Google the names of a few prospective jurors. One appears to have been suspended from the practice of law due to a criminal conviction. The next day at voir dire, however, the…more

Juror, Jury Selection

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Labor and Employment Observer 2015/2016

The Irony in Regulating Employee Social Media Speech: the NLRB vs. the FTC - BREAKING NEWS: Employees use social media. A lot. And, in a related story, Bush beat Gore, according to the Supreme Court. All breaking news, of…more

Employer Liability Issues, Exempt-Employees, FLSA, FTC, Gun Laws

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Labor and Employment Observer 2015/2016

The Irony in Regulating Employee Social Media Speech: the NLRB vs. the FTC - BREAKING NEWS: Employees use social media. A lot. And, in a related story, Bush beat Gore, according to the Supreme Court. All breaking news, of…more

Employer Liability Issues, Exempt-Employees, FLSA, FTC, Gun Laws

See All Updates »

Supreme Court Sends ERISA Plans Racing to the Courthouse for Subrogation Recoveries

The Supreme Court of the United States recently handed down a decision that opens the door for participants in ERISA-covered benefits plans to stop a lawsuit against them in its tracks by doing something that most people love to…more

Corporate Counsel, Employer Group Health Plans, Equitable Relief, ERISA, Medical Expenses

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Halliburton Decided! World Does Not End

Yesterday, the Supreme Court released its highly-anticipated decision in Hallburton Co. v. Erica P. John Fund, Inc. As we (and, to be fair, others) predicted after the oral argument, the Court did not have the appetite to…more

Basic v Levinson, Class Action, Class Certification, Corporate Counsel, Fraud

See All Updates »

Pre-Emption of State-Law Design-Defect Claim Against Generic Drug Company

On June 24, 2013, in a 5-4 decision, the U.S. Supreme Court in Mutual Pharmaceutical Co., Inc. v. Bartlett held that state-law design-defect claims based on the inadequacy of a generic drug’s labeled warnings are pre-empted by…more

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

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HHS Ups The Ante: Announces Percentages And Time Frames On Goals For Medicare Pay-For-Value Efforts

On January 26, 2015, the Secretary of the United States Department of Health and Human Services (“HHS”), Sylvia Mathews Burwell, announced two important goals for the Department..…more

Affordable Care Act, Fee-for-Service, Healthcare, HHS, Medicare

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Carrier's Website Does Not Limit Liability Under Carmack Amendment

A recent decision in District Court in New Jersey may interest insurers subrogating transportation claims. In particular, it sets forth the legal argument to challenge target-carriers’ arguments about purported limitations of…more

Damages, Interstate Commerce, Limitation of Liability Clause, Subrogation

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Click it to Stick it: Guide to Creating Binding Online Agreements

Contract terms and purchaser assent to those terms, conditions, intended use and warning information provided with a purchased product are known fertile ground for defending product claims. In today’s virtual age, consumers…more

Actual or Constructive Knowledge, Amazon, Arbitration, Barnes and Noble, Browsewrap Agreement

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Fiscal Cliff Deal and Healthcare: 3-Point Bulletin

On January 1, President Obama signed the American Taxpayer Relief Act of 2012 into law to prevent the country from going over the proverbial “fiscal cliff.” The fiscal cliff deal prevents the scheduled 26.5% cut in reimbursement…more

Affordable Care Act, American Taxpayer Relief Act, CLASS Act, Co-Op, Fiscal Cliff

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Labor and Employment Observer 2015/2016

The Irony in Regulating Employee Social Media Speech: the NLRB vs. the FTC - BREAKING NEWS: Employees use social media. A lot. And, in a related story, Bush beat Gore, according to the Supreme Court. All breaking news, of…more

Employer Liability Issues, Exempt-Employees, FLSA, FTC, Gun Laws

See All Updates »

Repetitive Water Heater Failure Claims – New Theories of Recovery

It can be frustrating when pursuit of a products liability case is not economically feasible due to the small dollar value of the claim. This is especially true with repetitive failure claims – when the same type of product…more

Boilers, Manufacturers, Manufacturing Defects

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Bill Introduced to Congress Which Establishes National Hiring Standards for Motor Carriers

The recent introduction of H.R. 4727 in the House of Representatives marks the first step toward insulating freight brokers and third-party logistics providers (3PLs) from claims by plaintiffs who seek an alternate source for…more

Commercial Truck Drivers, Hiring & Firing, Trucking Industry

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Executives in the Crosshairs: DOJ Increases the Focus on Individuals to Combat Corporate Wrongdoing

Earlier this month, the Deputy Attorney General of the Department of Justice (“DOJ”) released a memorandum (“Guidance”) setting forth six key steps to which DOJ attorneys should adhere in the investigation of corporate…more

C-Suite Executives, Corporate Misconduct, DOJ, Government Investigations, New Guidance

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Additional California Rulings on Right to Repair Act Defense

In August 2013, we reported that Christmas had come early for the California subrogation community due to a recent decision from the Court of Appeals which found that the “Right to Repair Act” (SB 800) did not apply to cases in…more

Actual Injuries, Construction Defects, Damages, Right to Repair, Subrogation

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Group Homes Were Not Charitable

A panel of the Commonwealth Court of Pennsylvania held that group homes maintained by a nonprofit for persons with intellectual disabilities were not entitled to real estate tax exemptions as charities. ARC Human Services, Inc…more

Non-Profits, Property Tax, Tax Exemptions

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Unclaimed Property: Court Holds Life Insurer’s Escheatment Duties Not Triggered By Insured’s Death

In an opinion filed August 5, 2014, the Florida First District Court of Appeal held that under Florida’s unclaimed property law, life insurance proceeds are not “due and payable,” and the dormancy period does not begin to run,…more

Death Benefits, Escheat, Life Insurance, Notice Requirements, Unclaimed Property

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Reflections on Low-E Glass vs. Vinyl Siding

From luxury vehicles melting on the streets of London to sunbathers being attacked by a “death ray” at a Las Vegas pool, splashy news reports highlight unanticipated hazards associated with the use of low-e glass in new…more

Exclusions, Negligence, Property Damage, Subrogation, Warranties

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Proposed Florida Advisory Opinion Would Allow Attorneys to Advise Clients to Clean Up Social Media before Litigation Starts

On January 23, 2015, the Professional Ethics Committee of the Florida Bar issued Proposed Advisory Opinion 14-1, in which the Committee found that “a lawyer may advise the client pre-litigation to remove information from a…more

Ethics, Popular, Social Media, Social Networks, Trial Preparation

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Colorado Supreme Court: Indefinite, Future Assignment of Insurance Proceeds Unenforceable Against Insurer

It is not uncommon for injured persons to assign their rights to insurance proceeds to a third party, and the enforceability of those assignments has been the subject of frequent litigation around the country. In the most recent…more

Assignments, Car Accident, CO Supreme Court, Insurance Industry

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SEC and FINRA Announce 2015 Exam Priorities

The U.S. Securities and Exchange Commission (SEC) and the Financial Industry Regulatory Authority (FINRA) recently announced their 2015 exam priorities for their respective examination programs. Both the SEC and FINRA have…more

Broker-Dealer, FINRA, Industry Examinations, Investment Adviser, OCIE

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Labor And Employment Observer - 2013/2014

In This Issue: Message from the Chair; Social Media and the Workplace: 2013 and Beyond; Unpaid Internships: Training Ground or Legal Landmine?; Supreme Court’s Nassar Decision Sets Higher Causation Standard for a Variety…more

Affirmative Action, Background Checks, Big Data, Causation, D.R. Horton

See All Updates »

Legislation Alters Shipping Act Treatment of Attorneys’ Fees

Late yesterday, both the U.S. House of Representatives and the U.S. Senate passed S. 2444, the Howard Coble Coast Guard and Maritime Transportation Act of 2014…more

Attorney's Fees, Federal Maritime Commission, Maritime Transport, Shipping

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New Jersey Becomes Latest State to “Ban the Box”

On August 11, 2014, Governor Chris Christie signed into law the Opportunity to Compete Act, New Jersey’s version of “ban the box.” When the law takes effect on March 1, 2015, companies who employ 15 or more employees will be…more

Ban the Box, Criminal Background Checks, Employee Rights, Job Applicants

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CMS Proposes Prospective Payment System Update Rules for Inpatient and Long Term Care Hospitals

On Friday, April 26, the Centers for Medicare and Medicaid Services (CMS) issued a crucial payment system rule that proposes updated rates and regulatory policies for inpatient hospitals (including inpatient psychiatric…more

CMS, Document Coding, Healthcare, Hospitals, Long Term Care Facilities

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A Study Analysis and Recommendations on Approaches to First U.S. Acquisitions by Non-U.S. Companies: How Chinese Companies May Succeed in Overseas M&A Transactions

Recently, as the pace of “going global” speeds up, a large amount of Chinese companies have participated in M&A, control investments and substantial minority investments in businesses and properties located outside of China…more

Acquisitions, China, Cross-Border

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30 (b)(6) Corporate Designee Depositions - What You Need to Know

In a world where the overwhelming majority of cases never make it to trial, depositions take on outsized importance. They will almost certainly be the only in-person testimony either party has the opportunity to elicit and the…more

Depositions, Federal Rules of Civil Procedure, Litigation Strategies

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Washington Appellate Court Holds That Below-Limits Settlement Fails to Trigger Excess Policies

On November 12, 2013, in Quellos Group LLC v. Federal Insurance Company, the Washington Court of Appeals affirmed summary judgment in favor of two excess professional liability insurers because the excess policies “require[d]…more

Excess Policies, Policy Limits, Settlement

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Indiana: New Home Warranties Must Be Insured

When faced with a subrogation loss involving a new or fairly new house, and a potential construction defect that caused the loss, one of the first things to look for is how warranties can help or hurt your case. Did the builder…more

Construction Defects, Implied Warranty of Habitability, Warranties

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The Fairness in Class Action Litigation Act of 2016 – What It Can Mean For Consumer Product Manufacturers

Last year, the chairman of the House Judiciary Committee, Bob Goodlatte (R. Va.), proposed the Fairness in Class Action Litigation Act of 2015-2016 (H.R. 1927). The Act passed the House last week on January 8, 2016, and is…more

Class Certification, The Fairness in Class Action Litigation Act of 2015

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Delaware LLC Act Amended to Confirm Fiduciary Duties Exist Absent Express Agreement to the Contrary

Effective August 1, 2013, Section 18-1104 of the Delaware Limited Liability Company Act (the Act) was amended to confirm that, absent a provision in the limited liability company agreement to the contrary, the managers and…more

Delaware Limited Liability Company Act, Fiduciary Duty, LLC, New Legislation

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Eleventh Circuit Holds No Duty to Defend Directors Serving in Mixed Capacities

On June 22, 2015, the 11th Circuit affirmed a Georgia federal court decision that there was no coverage under a director’s and officer’s (D&O) insurance policy for claims asserted by beneficiaries of a family trust against a…more

Beneficiaries, Closely Held Businesses, D&O Insurance, Duty to Defend, Family Trusts

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Labor and Employment Observer 2015/2016

The Irony in Regulating Employee Social Media Speech: the NLRB vs. the FTC - BREAKING NEWS: Employees use social media. A lot. And, in a related story, Bush beat Gore, according to the Supreme Court. All breaking news, of…more

Employer Liability Issues, Exempt-Employees, FLSA, FTC, Gun Laws

See All Updates »

Group Homes Were Not Charitable

A panel of the Commonwealth Court of Pennsylvania held that group homes maintained by a nonprofit for persons with intellectual disabilities were not entitled to real estate tax exemptions as charities. ARC Human Services, Inc…more

Non-Profits, Property Tax, Tax Exemptions

See All Updates »

The Failures and Future of the EB-5 Regional Center Program: Can it be Fixed?

Senate Committee on the Judiciary Hearing - The Senate Committee on the Judiciary (“Committee”) held a hearing on February 2nd regarding the future of the EB-5 Regional Center Program. The hearing was led by Senators Chuck…more

DHS, EB-5, EB-5 Regional Centers, Foreign Investment, Immigrant Investor Program

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How to Protect Corporate Attorney-Client Privilege – Defense Fails in Sex Discrimination Case

Last month, a Pennsylvania federal judge rejected a company’s claim to attorney-client privilege as an obstacle to pursuit of a sex discrimination suit brought by a lawyer and former employee…more

Attorney-Client Privilege, Employer Liability Issues, Rules of Professional Conduct, Sex Discrimination

See All Updates »

Commonwealth Court Approves PA PUC’s Implementation of Distribution System Improvement Charge

The Commonwealth Court of Pennsylvania issued a decision on November 3, 2015, available here, that has significant implications for public utilities in Pennsylvania seeking to recover costs associated with distribution system…more

Cost Recovery, Income Taxes, Public Utilities Commission, Tax Deductions, Tax Rates

See All Updates »

A New Twist in the California Debate Over Allegedly Inadequate Replacement Cost Limits in Homeowners’ Policies

The April 8, 2015 decision of the California Court of Appeals in Ass’n. of Cal. Insurance Companies v. Jones, 2015 WL 1569669, 2015 Cal. App. LEXIS 298 (Cal.Ct.App., Apr. 8, 2015) held that the state’s Insurance Commissioner…more

Appeals, Homeowner's Insurance, Insurance Litigation, Property Damage, Replacement Costs

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In Suing Commonwealth of PA, Clean Air Council Takes A Stand For Up-To-Date Building Codes

There is a war on building codes across the United States, and Pennsylvania is ground zero. After years of regular building code updates, a law was passed in 2011 (Act 1) at the urging of the Pennsylvania Builders…more

Building Codes, Construction Industry, New Legislation, Real Estate Development

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Texas PUC to Submit Proposed Rules for Adoption

In September 2014, responsibility for regulation of water and wastewater utilities was transferred from the Texas Commission on Environmental Quality (TCEQ) to the Public Utility Commission (PUC). The transfer allows TCEQ to…more

Consumer Utility Costs, Public Utilities Commission, Utilities Sector, Wastewater, Water Supplies

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Pennsylvania Supreme Court Rules Statutory Bad Faith Claims are Assignable

On December 15, 2014, the Supreme Court of Pennsylvania held, in a 5-1 decision, that bad faith claims brought pursuant to 42 Pa. C.S. § 8371 may be assigned by an insured to an injured third party under Pennsylvania law. See…more

Allstate, Assignments, Bad Faith, Insurance Litigation

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Benefit Corporations – A New Type Of Corporation – Are Now Authorized In Pennsylvania

On January 23, 2013, the Pennsylvania Benefit Corporation Act (the Act) became effective. The Act authorizes a new type of for-profit business corporation known as a benefit corporation. Pennsylvania is now one of 12 states that…more

Benefit Corporations, Corporate Officers, Directors, Investors, Shareholders

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Insider Trading Hack was Cinematic in Scope

The U.S. Department of Justice announced indictments in Brooklyn and New Jersey last month of 32 people for fraudulently obtaining inside information and then using that knowledge to make millions in the market, in the “largest…more

Cybersecurity, Data Breach, DOJ, Hackers, Indictments

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SuperValu Latest in Debate over Standing

Last month, a Minnesota federal judge tossed out extensive multidistrict legislation concerning a proposed class action of SuperValu shoppers. Shoppers from Illinois, Minnesota, and Idaho had alleged that the supermarket chain…more

Article III, Class Action, Data Breach, Grocery Stores, Multidistrict Litigation

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New Partnership Audit Rules Require Careful Review of Partnership and LLC Agreements

If you are a partner of a partnership or a member of a limited liability company (LLC) taxed as a partnership, or are entering into a new partnership or LLC, you may have some important decisions to make in light of impending…more

Audits, Bipartisan Budget, Corporate Counsel, IRS, LLC

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Potential Recovery Opportunities Arising From Pollution Claims

Energy production in the United States is at an all-time high. In 2013, an average of 7.5 million barrels of oil were pumped every day, which bested the previous production record (2012) by one million barrels. Domestic oil…more

Contaminated Properties, Environmental Claims, Environmental Liability, Environmental Policies, Oil & Gas

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Wyndham Settles with FTC

Last month, Wyndham Worldwide Corp. settled its lengthy civil case with the Federal Trade Commission. The suit began in 2012, when the FTC sued Wyndham and three of its subsidiaries, alleging three data breaches between 2008…more

Data Breach, Data Security, FTC, FTC Act, FTC v Wyndham

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Labor and Employment Observer 2015/2016

The Irony in Regulating Employee Social Media Speech: the NLRB vs. the FTC - BREAKING NEWS: Employees use social media. A lot. And, in a related story, Bush beat Gore, according to the Supreme Court. All breaking news, of…more

Employer Liability Issues, Exempt-Employees, FLSA, FTC, Gun Laws

See All Updates »

FDA Proposes Regulations on Safe Food Transport

In early February, the U.S. Food and Drug Administration (FDA) issued its seventh and final major rule as part of the implementation of the Food Safety Modernization Act. The proposed rule seeks to prevent the contamination of…more

FDA, Food Safety, FSMA, Shipping, Trucking Industry

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Labor and Employment Observer 2015/2016

The Irony in Regulating Employee Social Media Speech: the NLRB vs. the FTC - BREAKING NEWS: Employees use social media. A lot. And, in a related story, Bush beat Gore, according to the Supreme Court. All breaking news, of…more

Employer Liability Issues, Exempt-Employees, FLSA, FTC, Gun Laws

See All Updates »

Labor and Employment Observer 2015/2016

The Irony in Regulating Employee Social Media Speech: the NLRB vs. the FTC - BREAKING NEWS: Employees use social media. A lot. And, in a related story, Bush beat Gore, according to the Supreme Court. All breaking news, of…more

Employer Liability Issues, Exempt-Employees, FLSA, FTC, Gun Laws

See All Updates »

Halliburton Decided! World Does Not End

Yesterday, the Supreme Court released its highly-anticipated decision in Hallburton Co. v. Erica P. John Fund, Inc. As we (and, to be fair, others) predicted after the oral argument, the Court did not have the appetite to…more

Basic v Levinson, Class Action, Class Certification, Corporate Counsel, Fraud

See All Updates »

One Size Does Not Fit All: Written Disclosure Policies in a Time of Increased SEC Enforcement

The U.S. Securities and Exchange Commission (SEC) continues to increase its enforcement efforts in the municipal bond market by focusing on the sufficiency and timeliness of disclosure in initial municipal securities offerings…more

Compliance, Disclosure Requirements, EMMA, Enforcement Actions, Material Misstatements

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Your Client is Hacked and Personal Information is Leaked Online – Now What?

You are general counsel to a company, and your CEO steps into your office, clutching his iPhone in one hand and wiping sweat from his brow with the other, and tells you that a compromising photograph of him was stolen from his…more

Celebrities, CEOs, Copyright, Copyright Infringement, Corporate Counsel

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Attack on Citizens’ Bad Faith Immunity Receives a Chilly Reception at Florida Supreme Court

In 2002, the Florida Legislature created Citizens Property Insurance Company Corporation (Citizens) to make affordable insurance available to Florida citizens who were not otherwise able to obtain property insurance. In adopting…more

Bad Faith, Citizens Property Insurance Corporation, Insurance Industry, Intentional Torts

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Piracy, Kidnap & Ransom: UK Bans Ransom Payments by Insurers

On 26 November 2014 the British Home Secretary introduced the Counter-Terrorism and Security Bill (the Bill) to Parliament, part of which deals specifically with prohibiting the payment of insurance claims in respect of payments…more

Counter-Terrorist, Insurance Industry, New Legislation, UK

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Court Holds Excise Tax Does Not Apply to Foreign Retrocessional Reinsurance

In Validus Reinsurance, Ltd. v. United States, No. 13-0109 (ABJ), 2014 WL 462886 (D.D.C. 2014), the U.S. District Court for the District of Columbia found that although foreign reinsurance contracts covering certain U.S. risks…more

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Labor and Employment Observer 2015/2016

The Irony in Regulating Employee Social Media Speech: the NLRB vs. the FTC - BREAKING NEWS: Employees use social media. A lot. And, in a related story, Bush beat Gore, according to the Supreme Court. All breaking news, of…more

Employer Liability Issues, Exempt-Employees, FLSA, FTC, Gun Laws

See All Updates »

U.S. DOT Emergency Order Impacts Crude Oil Testing, Rail Shipping Requirements

In an emergency order issued on February 25, 2014, the U.S. Department of Transportation (DOT) directed all parties offering for transport or transporting petroleum crude oil to ensure that product is properly tested and…more

Department of Transportation (DOT), Hazardous Substances, Oil & Gas, Railways

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Group Homes Were Not Charitable

A panel of the Commonwealth Court of Pennsylvania held that group homes maintained by a nonprofit for persons with intellectual disabilities were not entitled to real estate tax exemptions as charities. ARC Human Services, Inc…more

Non-Profits, Property Tax, Tax Exemptions

See All Updates »

Significant Restrictions on Local Government Debt and Swaps Introduced in the Pennsylvania General Assembly

Legislation (Senate Bills No. 901, 902, 903 and 904 (SB 901, SB 902, SB 903 and SB 904)) has been introduced in the Pennsylvania General Assembly that, if passed, in whole or in part, could significantly affect certain types of…more

Economic Development, Funding, Legislative Agendas, Municipalities, Ultra Vires

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Claims Handling Reminders for Oklahoma Storm Losses

In light of the recent devastating storms in Oklahoma, it is worth bearing in mind: (1) Oklahoma’s basic rules for interpreting insurance policies, including the “reasonable expectation doctrine,” (2) Oklahoma’s standard for…more

Bad Faith, Covenant of Good Faith and Fair Dealing, Oklahoma Tornado

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Third Circuit Holds Companies in Bankruptcy Can Reject Expired CBAs

In a ruling that comes as a blow to organized labor and a boon to employers in bankruptcy, the U.S. Court of Appeals for the Third Circuit recently broke new appellate ground in holding that Section 1113 of the Bankruptcy Code…more

Collective Bargaining Agreements (CBA), Commercial Bankruptcy, Expiration Date, NLRA, NLRB

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2014/2015 Labor and Employment Observer

In This Issue: - Message from the Chair - On the Horizon: Is Obama Remaking the Workplace While Leaving Congress Behind? - The 2014 Supreme Court Decisions Every Employer Should Know - What to Expect from the…more

Affordable Care Act, Barack Obama, Big Data, Cybersecurity, E-Verify

See All Updates »

“John Doe” Saves the Day in Washington: Avoiding S.O.L. Defense by Properly Naming “Doe” Defendants

In Powers v. W.B. Mobile Servs., Inc., 311 P.3d 58, 2013 WL 5645561 (2013), Division Two of the Washington Court of Appeals held that if a plaintiff (1) names a “John Doe” defendant with “reasonable particularity,” files suit…more

Insurance Industry, Pleading Standards, Pleadings, Statute of Limitations, Subrogation

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Revisiting the New York Convention as Burundi Becomes its 150th Signatory

In recognition of the ever-increasing importance of international arbitration as a method of resolving international commercial disputes, Burundi recently became the 150th country to adopt the New York Convention on the…more

Arbitration, Arbitration Agreements, Arbitration Awards, Foreign Arbitration Clauses, International Arbitration

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Update on Significant DOT, FAA and Other Federal Agencies’ Aviation-Related Regulatory Actions - February 2016

This edition of the Cozen O’Connor Aviation Regulatory Update includes the recently signed U.S.-Mexico bilateral agreement that liberalizes air services between the two countries, new Cuba-related regulations loosening…more

Aircraft, Aviation Industry, Bilateral Agreements, Cuba, Department of Transportation (DOT)

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Labor and Employment Observer 2015/2016

The Irony in Regulating Employee Social Media Speech: the NLRB vs. the FTC - BREAKING NEWS: Employees use social media. A lot. And, in a related story, Bush beat Gore, according to the Supreme Court. All breaking news, of…more

Employer Liability Issues, Exempt-Employees, FLSA, FTC, Gun Laws

See All Updates »

Zhang v. Sup. Ct.: Violation of Unfair Insurance Practices Act May Support Unfair Competition Claim

In a highly awaited decision, the California Supreme Court in Zhang v. Sup. Ct. of San Bernardino County (August 1, 2013) 2013 Cal. LEXIS 6520, Case No. S178542, considered whether insurance practices that violate the California…more

Insurance Industry, Third-Party, Unfair Competition, Unfair Insurance Practices Act

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Binding Arbitration Agreements in Insurance Contracts are Void in Washington

In Washington State Department of Transportation v. James River Insurance Company, Wash. No. 87644-4 (January 17, 2013), the Washington Supreme Court declared binding arbitration agreements in insurance contracts void and…more

Arbitration, Arbitration Agreements, Binding Arbitration

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NE Supreme Court Issues Insurer-Friendly Decision on the Applicability of the Pollution Exclusion

In interpreting the scope of the pollution exclusion, one question seems to appear in case after case — what exactly does the pollution exclusion exclude? In State Farm Fire & Casualty Company v. Dantzler, 289 Neb. 1 (2014), the…more

Contamination, Pollution Exclusion, Property Damage, Property Insurance

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When Does a Defendant Have Standing to Challenge an Attorney Fee Award?

The class action has settled. There is a possibility that a portion of the settlement fund, if otherwise unclaimed, will ultimately revert to the defendant. Does this possibility give the defendant standing to object to class…more

Appeals, Attorney's Fees, Class Action, Corporate Counsel, Reversionary Rights

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How to Protect Corporate Attorney-Client Privilege – Defense Fails in Sex Discrimination Case

Last month, a Pennsylvania federal judge rejected a company’s claim to attorney-client privilege as an obstacle to pursuit of a sex discrimination suit brought by a lawyer and former employee…more

Attorney-Client Privilege, Employer Liability Issues, Rules of Professional Conduct, Sex Discrimination

See All Updates »

Sixth Circuit Limits Scope of Disgorgement Provision in E&O Policy

In a cutting-edge decision, the federal 6th Circuit Court of Appeals has ruled that an exclusion barring coverage for an insured’s liability for “disgorgement” of “remuneration” or “advantage” is limited to “acquiring” funds as…more

Board of Directors, D&O Insurance, Disgorgement, Professional Liability, Remuneration

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2014/2015 Labor and Employment Observer

In This Issue: - Message from the Chair - On the Horizon: Is Obama Remaking the Workplace While Leaving Congress Behind? - The 2014 Supreme Court Decisions Every Employer Should Know - What to Expect from the…more

Affordable Care Act, Barack Obama, Big Data, Cybersecurity, E-Verify

See All Updates »

DOL Sets Its Sights on Small Businesses in Recent Joint Employer Guidance

The NLRB made a splash when it laid out a new standard to capture employers previously thought to be outside the “joint employer” net with its Browning-Ferris decision in April 2015, and now the Department of Labor is making…more

Administrative Interpretation, Browning-Ferris Industries of California Inc., DOL, FLSA, Joint Employers

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Think You Cannot Be Sued For Bad Faith Because You Haven’t Issued A Policy to A Plan Participant? Think Again . . .

Just because there is no insurance policy may not mean there is no cause of action for bad faith according to a recent Hawaii Supreme Court decision analyzing the Joint Underwriting Program (“JUP”) statute. Willis v. Swain case…more

Bad Faith, Covenant of Good Faith and Fair Dealing, Insurance Industry

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Caveat Empty Box

In a strong defense victory from earlier this year, the U.S. District Court for the Eastern District of California denied a proposed class of laptop purchasers the opportunity to proceed against Toshiba as a class, instead…more

Arbitration, Arbitration Agreements, Class Action, Manufacturers, Toshiba

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Labor and Employment Observer 2015/2016

The Irony in Regulating Employee Social Media Speech: the NLRB vs. the FTC - BREAKING NEWS: Employees use social media. A lot. And, in a related story, Bush beat Gore, according to the Supreme Court. All breaking news, of…more

Employer Liability Issues, Exempt-Employees, FLSA, FTC, Gun Laws

See All Updates »

Two New Laws Give DHS Increased Cybersecurity Authority

Two recently enacted laws give the Department of Homeland Security (DHS) increased authority and ability to contain cybersecurity threats and breaches. Congress passed both the Federal Information Security Modernization Act and…more

Cyber Threats, Cybersecurity, DHS, FISMA, New Legislation

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Crime-Fraud Exception to Attorney-Client Privilege – Facebook’s Lawsuit

The crime-fraud exception to attorney-client privilege: As an attorney, you may not anticipate it applying to your emails, your letters or your advice to your client. But even if you never see it coming, your client’s intentions…more

Attorney-Client Privilege, Contract Disputes, Crime-Fraud Exception, Facebook, Fraud

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Commonwealth Court Approves PA PUC’s Implementation of Distribution System Improvement Charge

The Commonwealth Court of Pennsylvania issued a decision on November 3, 2015, available here, that has significant implications for public utilities in Pennsylvania seeking to recover costs associated with distribution system…more

Cost Recovery, Income Taxes, Public Utilities Commission, Tax Deductions, Tax Rates

See All Updates »

DOL Issues Final Rule Providing FMLA Rights To All Workers in Legal Same-Sex Marriages

The Department of Labor issued its Final Rule on Family Medical Leave Act (FMLA) rights on February 25, joining the Internal Revenue Service in adopting the “place of celebration”/“state of celebration” test. By virtue of this…more

DOL, FMLA, Leave of Absence, Medical Leave, Same-Sex Marriage

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Texas 5th Circuit Holds Settlement for Less than Policy Limits Did Not Exhaust Primary Policy

In a recent decision, the Fifth Circuit held that a primary policy was not exhausted, after the primary insurer made settlement payments that did not exceed the primary policy limits, even though the insured contributed amounts…more

Denial of Insurance Coverage, Excess Policies, Exhaustion Doctrine, Insurance Litigation, Policy Limits

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Coverage Opinions Remain Privileged in Bad Faith Action Even Where Gist of Recommendation is Set Forth in Letter to Insured

As a matter of first impression, the Supreme Court of West Virginia recently held that coverage opinion letters were protected by the attorney-client privilege even though the insurer subsequently sent correspondence to its…more

Attorney-Client Privilege, Bad Faith, Privilege Waivers, Waivers

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  • Illinois
  • New Jersey
  • New York
  • North Carolina
  • Pennsylvania
  • Texas
  • Washington
Other Countries
  • Canada
  • United Kingdom
Number of Attorneys

400+ Attorneys

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