Cozen O'Connor

Prejudice Not Required in New Jersey To Deny Coverage for Late Notice Under a Claims Made Policy

On February 11, 2016, the Supreme Court of New Jersey in Templo Fuente de Vida Corp. v. National Union Fire Ins. Co. of Pittsburgh, declared that an insurance company was not required to show it suffered prejudice before…more

Breach of Contract, Claims Made Policy, D&O Insurance, Denial of Insurance Coverage, Late Notices

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Avoid Inconsistent Communications By “Revolving Door” Adjusters

In CE and CLE courses, we hear all the time that the most often cited reason for a grievance or complaint is lack of communication. This truism provides a useful rule of thumb to avoid bad faith claims. Remember, for most…more

Bad Faith, Construction Industry, Insurance Adjusters, Insurance Industry, Insurance Investigations

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Protection of Marijuana Brands in the United States

Brand protection for companies engaged in marijuana-related businesses continues to present special challenges given the federal prohibition on the sale, distribution, and possession of marijuana under the Controlled Substances…more

Brand, Controlled Substances Act, Marijuana, Marijuana Related Businesses, Trademark Registration

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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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Punitive Damages and an Essential Jury Instruction

In one of our recent posts we touched on punitive damages in the context of one of the Pinnacle Hip bellwether trials. In this post, we address another interesting aspect of punitive damages: whether they can be used to punish a…more

Compensatory Damages, Due Process, Jury Awards, Punitive Damages, Young Lawyers

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Five Washington Realities for President Trump’s Consideration

Last week, we published an op-ed, “Here are Five things President Trump can't change,” in The Hill discussing long-established and irrevocable rules of how D.C. works that Trump and his team need to factor into their thought…more

Attorney Generals, Executive Orders, Inspector General, Procurement Guidelines, Trump Administration

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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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February 2017 Update on Significant DOT, FAA and Other Federal Agencies’ Aviation-Related Regulatory Actions

This edition of the Cozen O’Connor Aviation Regulatory Update discusses DOT’s final approval of antitrust immunity for Delta Air Lines and Aeromexico, DOT’s proceeding to reallocate some of Delta/Aeromexico’s Mexico City and JFK…more

Amtrak, Antitrust Immunity, Aviation Industry, Customs and Border Protection, Delta Airlines

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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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Reservation of Rights Requirements Adopted by South Carolina Supreme Court

The South Carolina Supreme Court’s recent decision in Harleysville Group Insurance v. Heritage Communities, Inc., Appellate Case Nos. 2013-001281 and 2013-001291, 2017 WL 105021 (S.C. Jan. 11, 2017) affirms what is and is not…more

Commercial General Liability Policies, Construction Industry, Insurance Industry, Property Damage, Reservation of Rights

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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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Allocation Clause Held Enforceable in a Duty To Defend D&O Policy

In Housing. Auth. of New Orleans v. Landmark Ins. Co., 2016 U.S. Dist. LEXIS 24419 (E.D. La. Feb. 29, 2016), the court provided a rare analysis of the interplay between a duty to defend in a D&O policy and the allocation clause…more

Contract Terms, Cost Allocation, D&O Insurance, Duty to Defend, Indemnification Clauses

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2016/2017 Labor & Employment Observer

Activist NLRB Created More Problems For All Employers in 2016 - What Happens Under President Trump? During 2016, the National Labor Relations Board (NLRB or the Board) maintained its generally pro-union, anti-employer…more

21st Century Cures Initiative, ADA, Affordable Care Act, Ambush Election Rules, Anti-Retaliation Provisions

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New California Law Takes Aim at Choice of Law Provisions in Employment Agreements

Borrowing from the famous tourism marketing tagline of its neighboring state, a new California law effectively tells employers, “what happens in California stays in California,” and gives employees the power to strike down…more

Adjudicatory Process, Employment Contract, Jerry Brown, Pre-Employment Agreements

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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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Medical Marijuana to be Legal in Pennsylvania

The Pennsylvania House of Representatives on April 13, 2016 passed Senate Bill 3, legalizing medical marijuana in the commonwealth of Pennsylvania. The Pennsylvania Senate had approved the bill earlier in the week…more

Decriminalization of Marijuana, Department of Health, Medical Marijuana, Pending Legislation

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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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SEC Proposes to Require Universal Proxies; Adopts Final Rules to Facilitate Intrastate Offerings

On October 26, 2016, the Securities and Exchange Commission (SEC) proposed amendments to the proxy rules to require parties in contested elections to use universal proxy cards that would include the names of all board of…more

Board of Directors, Capital Raising, Director Nominations, Final Rules, Proposed Amendments

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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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Coverage to Rebuild a Foundation to Comply with Changed Building Codes Following a Fire are Subject to Code-Upgrade Endorsement’s Sublimit

Does the efficient proximate cause rule serve to afford coverage for the additional costs to rebuild the foundation of a home in compliance with changed building code requirements beyond the sublimit of liability of an optional…more

Appeals, Building Codes, Construction Industry, Construction Project, Denial of Insurance Coverage

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NIST Releases Comprehensive Cyber Security Guidelines for the Internet of Things

As the Internet of Things continues to grow and expand, the fact that guidance on security measures and protections is a necessity has become increasingly evident. Recently, the National Institute of Standards and Technology…more

Cyber Attacks, Cybersecurity, Data Breach, Internet of Things, NIST

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Three Key Immigration Developments in President Trump’s First Weeks

Immigration has been in the forefront of the news since President Trump took office and will likely remain so in the near future. Here, we discuss three key business immigration issues that have seen significant developments in…more

Executive Orders, Foreign Nationals, Foreign Workers, Green Cards, H-1B

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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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“Full Employment for CISOs in New York”: New York Proposes the Nation’s First Cybersecurity Regulation

If you’re a CISO living in New York get ready for the phone calls!!! On September 13, 2016, Governor Andrew M. Cuomo proposed the nation’s first cybersecurity regulation. Starting on September 28, 2016 there is a limited 45 day…more

CISO, Cybersecurity, Financial Institutions, NYDFS, Public Comment

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When “Shhh” turns to “Oh $%*#!” – No Pseudonyms for Ashley Madison Plaintiffs

Nothing good has come from the Ashley Madison hacking incident, except hopefully some well-deserved apologies to loved ones. Now the E.D. Mo. Court hearing the In Re Ashley Madison Customer Security Breach Litigation, MDL No…more

Ashley Madison, Cybersecurity, Data Breach, Data Privacy, Data Protection

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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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2016/2017 Labor & Employment Observer

Activist NLRB Created More Problems For All Employers in 2016 - What Happens Under President Trump? During 2016, the National Labor Relations Board (NLRB or the Board) maintained its generally pro-union, anti-employer…more

21st Century Cures Initiative, ADA, Affordable Care Act, Ambush Election Rules, Anti-Retaliation Provisions

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AOPA Asks Supreme Court to Review Sikkelee Decision; Urges FAA Preemption

In a notable amicus curiae brief, the Aircraft Owners and Pilots Association (AOPA) has asked the U.S. Supreme Court to reverse a decision from the U.S. Court of Appeals for the Third Circuit (Third Circuit), which allowed…more

Appeals, Aviation Industry, Federal Aviation Administration (FAA), Manufacturers, Preemption

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A New Type Of Divorce Party

Today I was interviewed on television about a new type of divorce party. This is not a situation where a newly single person celebrates their freedom from an unhappy marriage, rather, this new type of divorce party has the…more

Child Custody, Divorce, Holidays

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Recent Tax Updates from the Commonwealth of Pennsylvania

Connect Modem Service Not Taxable - The Pennsylvania Commonwealth Court en banc affirmed a panel decision that service provided by Level 3 Communications to America Online, Inc. constituted internet access service and was,…more

Internet, Internet Tax Freedom Act, Manufacturers, Public Policy, Sales & Use Tax

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New York Court Confirms: Additional Insured Coverage Limited to Contractual Privity

On September 15, 2016, the New York Supreme Court, Appellate Division, First Department found that an additional insured endorsement provided additional insured coverage only to the entity in direct contractual privity with the…more

Additional Insured Endorsements, Commercial General Liability Policies, Construction Project, Contract Terms, Multi-Party Litigation

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Battery Problems Spread to Smartphones

After more than a decade of laptop battery fires, coupled with the surge in new battery operated devices causing fires (including hoverboards and e-cigarettes), it seemed almost impossible that news of a new string of…more

Consumer Product Safety Commission (CPSC), Lithium Batteries, Manufacturers, Product Recalls, Smartphones

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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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Disciplining February 17 General Strikers May Cause Problems for Employers

Organizers have called for a National General Strike Against the Policies of President Trump on February 17. Many of our clients are asking what their rights are in the event some of their employees choose to participate…more

Employer Liability Issues, NLRA, NLRB, Strike, Trump Administration

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Rollback of SEC Regulations Promulgated Under Dodd-Frank Has Begun

In several uncoordinated actions, the dismantling of Securities and Exchange Commission (SEC) regulations promulgated under The Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (Dodd-Frank) has begun. In two…more

Conflict Mineral Rules, Consumer Protection Act, Dodd-Frank, Executive Orders, Financial Regulatory Reform

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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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Seventh Circuit Holds Pre-Bankruptcy Termination of Lease May Be Avoidable Transfer

Landlords dealing with troubled tenants often enter into termination agreements that dictate terms for the consensual terminations of unexpired leases. Among other benefits, such termination agreements provide certainty and…more

Commercial Bankruptcy, Commercial Leases, Corporate Counsel, Fraudulent Transfers, Lease Termination

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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 Supreme Court Limits Use of Extrinsic Evidence and Reasonable Expectations Doctrine

On Monday, the Colorado Supreme Court issued its decision in American Family Mut. Ins. Co. v. Hansen, No. 14SC99 (Colo. June 20, 2016), holding that extrinsic evidence can only be used to interpret ambiguous policy language, not…more

Ambiguous, Auto Insurance, Bad Faith, Breach of Contract, CO Supreme Court

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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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2016 Year-End Tax Update: Okay, Now What?

In last year’s materials, loosely styled “Make America Great Again!,” we ruminated upon (and also thought about) what role, if any, federal income taxes might play in helping to make America great again, once the interminable…more

1099s, Affordable Care Act, Employment Tax, Estate Tax, Gift Tax

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Amended Rule 26: Protecting Against Competitively Sensitive Disclosures

Hundreds of billions of business e-mails are sent per day. That number may not come as a shock to many, but once a company is involved in litigation, e-discovery can be quite burdensome. Even the mention of the phrase…more

Competition, Discovery, Electronically Stored Information, Federal Rules of Civil Procedure, Multidistrict Litigation

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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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“Context Matters” – Tenth Circuit Holds Mudslide Not an Explosion Under Property Policy

On August 29, 2016, the U.S. Court of Appeals for the Tenth Circuit affirmed a Colorado district court ruling that the sudden obliteration of a building in a 2013 mudslide did not constitute an “explosion” under a commercial…more

Appeals, Commercial Insurance Policies, Commercial Property Owners, Denial of Insurance Coverage, Insurance Industry

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Prohibition Against Listing Apartments or Units on Home-Sharing Sites

On Friday, October 21, 2016, Governor Cuomo signed a bill banning the illegal advertising of apartment or units in Class A buildings on home-sharing sites such as Airbnb. The bill piggybacks on the 2010 law, which banned rentals…more

Advertising, Affordable Housing, Apartments, Governor Cuomo, Rental Property

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Fifth Circuit Provides Road Map for Review and Trial of Bad Faith Claims in Mississippi

Mississippi essentially has three levels of claim when insurance is at issue: (1) mere breach of contract, allowing recovery of contract damages; (2) breach of contract + no arguable basis for breach, which entitles recovery of…more

Appeals, Bad Faith, Bifurcation, Breach of Contract, Insurance Litigation

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Colorado Supreme Court Limits Use of Extrinsic Evidence and Reasonable Expectations Doctrine

On Monday, the Colorado Supreme Court issued its decision in American Family Mut. Ins. Co. v. Hansen, No. 14SC99 (Colo. June 20, 2016), holding that extrinsic evidence can only be used to interpret ambiguous policy language, not…more

Ambiguous, Auto Insurance, Bad Faith, Breach of Contract, CO Supreme Court

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The Illinois Supreme Court Opens Door to Claims Against Government Entities for Flood Losses

Floods lead to costly claims for insurance companies. Unfortunately, subrogated insurers are frequently precluded from pursuing governmental entities that cause flooding because they enjoy immunity from tort claims. So, for…more

Flood Insurance, Government Entities, Governmental Employees Tort Immunity Act, Insurance Industry, Subrogation

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Medical Marijuana to be Legal in Pennsylvania

The Pennsylvania House of Representatives on April 13, 2016 passed Senate Bill 3, legalizing medical marijuana in the commonwealth of Pennsylvania. The Pennsylvania Senate had approved the bill earlier in the week…more

Decriminalization of Marijuana, Department of Health, Medical Marijuana, Pending Legislation

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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 Charges 71 Issuers under its Municipalities Continuing Disclosure Cooperation Initiative

On August 24, 2016, the Securities and Exchange Commission (SEC) announced enforcement actions against 71 municipal issuers and other obligated persons (collectively, the municipal issuers) under the SEC’s Municipalities…more

Disclosure Requirements, Enforcement Actions, False Statements, MCDC, Municipal Bonds

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Concurrent Cause Cases: Florida Supreme Court Decides District Split in Favor of Coverage

On December 1, 2016, the Florida Supreme Court held in an insurance coverage case that “when independent perils converge and no single cause can be considered the sole or proximate cause, it is appropriate to apply the…more

Appeals, Concurrent Causation, Insurance Industry

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New IRS Reporting Rule Could Bite Unwary Foreign Investors

There are two main sources of reporting requirements for foreign investors in the United States — the Internal Revenue Service and the Bureau of Economic Analysis. The IRS recently upped its game by requiring reports from wholly…more

Annual Reports, Bureau of Economic Analysis, Covered Entities, Employer Identification Number (EIN), Foreign Investment

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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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2016/2017 Labor & Employment Observer

Activist NLRB Created More Problems For All Employers in 2016 - What Happens Under President Trump? During 2016, the National Labor Relations Board (NLRB or the Board) maintained its generally pro-union, anti-employer…more

21st Century Cures Initiative, ADA, Affordable Care Act, Ambush Election Rules, Anti-Retaliation Provisions

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New York Court Confirms: Additional Insured Coverage Limited to Contractual Privity

On September 15, 2016, the New York Supreme Court, Appellate Division, First Department found that an additional insured endorsement provided additional insured coverage only to the entity in direct contractual privity with the…more

Additional Insured Endorsements, Commercial General Liability Policies, Construction Project, Contract Terms, Multi-Party Litigation

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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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Reservation of Rights Requirements Adopted by South Carolina Supreme Court

The South Carolina Supreme Court’s recent decision in Harleysville Group Insurance v. Heritage Communities, Inc., Appellate Case Nos. 2013-001281 and 2013-001291, 2017 WL 105021 (S.C. Jan. 11, 2017) affirms what is and is not…more

Commercial General Liability Policies, Construction Industry, Insurance Industry, Property Damage, Reservation of Rights

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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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The Roller Coaster Ride of the New White Collar Regulations

The Fair Labor Standards Act (FLSA) got a lot of attention in 2016, and as we move into 2017, there is significant speculation as to what will happen next…more

DOL, FLSA, Minimum Salary, Minimum Wage, Over-Time

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Expanding When Liability is “Reasonably Clear”: Massachusetts Court Chips Away at Bad Faith Counterarguments

Earlier this month, a Massachusetts Appellate Court affirmed a trial court’s award of bad faith damages in a case where it found the insurer’s approach to a claim to be “at best inattentive, if not incompetent.” Although the…more

Bad Faith, Insurance Litigation, Subcontractors

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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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FERC Proposes Specifics on Allocating Real-Time Uplift to Deviations and More Information on Uplift

At its January meeting, the FERC issued a Notice of Proposed Rulemaking (NOPR) proposing (1) specific processes for allocating real-time uplift costs from deviations to market participants and (2) providing more information…more

Electricity, Energy Market, Energy Sector, Energy Storage, FERC

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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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IN Catastrophes: Preparing for Hurricane Matthew Claims in the Carolinas

Thousands of homes and other buildings both on the coast and in the interior of the Carolinas have been damaged or destroyed by Hurricane Matthew, and ongoing flooding continues to cause damage and hinder recovery efforts. By…more

Bad Faith, Emergency Orders, Enforcement, Hurricane Matthew, Hurricane Season

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Concurrent Cause Cases: Florida Supreme Court Decides District Split in Favor of Coverage

On December 1, 2016, the Florida Supreme Court held in an insurance coverage case that “when independent perils converge and no single cause can be considered the sole or proximate cause, it is appropriate to apply the…more

Appeals, Concurrent Causation, 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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Jurisdiction Over Out-Of-State Property In A Multi-State Divorce

In our increasingly mobile society, it is not uncommon for couples to relocate numerous times throughout their marriage and acquire property and assets in different states. When a divorce dissolves the marriage and forces a…more

Divorce, In Rem Jurisdiction, Marital Assets, Marriage, Personal Jurisdiction

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2016 DTSA: Providing Manufacturers with New Avenues to Protect Trade Secrets

On May 11, 2016, President Barack Obama signed the Defend Trade Secrets Act of 2016 (DTSA), which provides a federal civil cause of action to manufacturers for the misappropriation and theft of trade secrets under the Economic…more

Asset Seizure, Damages, Defend Trade Secrets Act (DTSA), Economic Espionage Act, Ex Parte

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Third Circuit Court of Appeals Upholds Carrier’s “Extended” Maritime Possessory Liens

Summary of Holding - In a recent opinion, in a case of first impression at the circuit level, the U.S. Court of Appeals for the Third Circuit held that maritime carriers and their customers may contractually extend the…more

Appeals, Commercial Bankruptcy, First Impression, Liens, Shipping Cargo

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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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The Harbor Might Not Be Safe: Failure To Update Generic Drug Labels Can Invite a Storm of State-Law Claims

The New Jersey Supreme Court ruled on August 22 that consumers’ state-law claims that manufacturers of a generic Reglan, a heartburn medication, did not adequately warn about its risks are not preempted by federal law…more

FDA, FDCA, Generic Drugs, Marketing, NJ Supreme Court

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FTC Overturns ALJ’s LabMD Decision and Reasserts its Role as a Data Security Enforcer

On July 29, 2016, the Federal Trade Commission (“FTC” or “Commission”) reversed an FTC administrative law judge’s (“ALJ”) opinion which had ruled against the FTC, finding that the Commission had failed to show that LabMD’s…more

ALJ, Data Breach, Data Security, FTC, FTC Act

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2016/2017 Labor & Employment Observer

Activist NLRB Created More Problems For All Employers in 2016 - What Happens Under President Trump? During 2016, the National Labor Relations Board (NLRB or the Board) maintained its generally pro-union, anti-employer…more

21st Century Cures Initiative, ADA, Affordable Care Act, Ambush Election Rules, Anti-Retaliation Provisions

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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 Court of Appeals Upholds Carrier’s “Extended” Maritime Possessory Liens

Summary of Holding - In a recent opinion, in a case of first impression at the circuit level, the U.S. Court of Appeals for the Third Circuit held that maritime carriers and their customers may contractually extend the…more

Appeals, Commercial Bankruptcy, First Impression, Liens, Shipping Cargo

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February 2017 Update on Significant DOT, FAA and Other Federal Agencies’ Aviation-Related Regulatory Actions

This edition of the Cozen O’Connor Aviation Regulatory Update discusses DOT’s final approval of antitrust immunity for Delta Air Lines and Aeromexico, DOT’s proceeding to reallocate some of Delta/Aeromexico’s Mexico City and JFK…more

Amtrak, Antitrust Immunity, Aviation Industry, Customs and Border Protection, Delta Airlines

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2016/2017 Labor & Employment Observer

Activist NLRB Created More Problems For All Employers in 2016 - What Happens Under President Trump? During 2016, the National Labor Relations Board (NLRB or the Board) maintained its generally pro-union, anti-employer…more

21st Century Cures Initiative, ADA, Affordable Care Act, Ambush Election Rules, Anti-Retaliation Provisions

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IRS Proposed Regulations Attack Valuation Discounts for Family Transfers — The Clock Is Now Ticking

The U.S. Department of the Treasury and the IRS have just issued anticipated proposed regulations that, if made final, would severely limit the ability of taxpayers to transfer interests in family limited partnerships and…more

Estate Planning, Estate Tax, Family Businesses, Family Limited Partnerships, Gift Tax

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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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2016/2017 Labor & Employment Observer

Activist NLRB Created More Problems For All Employers in 2016 - What Happens Under President Trump? During 2016, the National Labor Relations Board (NLRB or the Board) maintained its generally pro-union, anti-employer…more

21st Century Cures Initiative, ADA, Affordable Care Act, Ambush Election Rules, Anti-Retaliation Provisions

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2016/2017 Labor & Employment Observer

Activist NLRB Created More Problems For All Employers in 2016 - What Happens Under President Trump? During 2016, the National Labor Relations Board (NLRB or the Board) maintained its generally pro-union, anti-employer…more

21st Century Cures Initiative, ADA, Affordable Care Act, Ambush Election Rules, Anti-Retaliation Provisions

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Update No. 2: Is This The Year Florida Recognizes Direct Primary Care?

House Bill 37 (“HB 37”), a bill intended to codify and regulate direct primary care in the State of Florida, which had sailed through the Florida House with virtually unanimous support, died in the Senate as the legislative…more

Healthcare Reform, Pending Legislation

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Why Having A “Gifted” Child In NJ May Cost You More Child Support

The benefits of enrolling children in extracurricular activities are endless. Not only do they learn how to play a sport or musical instrument, but also soft skills and valuable life lessons, such as teamwork, the importance of…more

Child Custody, Child Support, Co-Parenting, Divorce, Education Expenses

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2016/2017 Labor & Employment Observer

Activist NLRB Created More Problems For All Employers in 2016 - What Happens Under President Trump? During 2016, the National Labor Relations Board (NLRB or the Board) maintained its generally pro-union, anti-employer…more

21st Century Cures Initiative, ADA, Affordable Care Act, Ambush Election Rules, Anti-Retaliation Provisions

See All Updates »

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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Rollback of SEC Regulations Promulgated Under Dodd-Frank Has Begun

In several uncoordinated actions, the dismantling of Securities and Exchange Commission (SEC) regulations promulgated under The Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (Dodd-Frank) has begun. In two…more

Conflict Mineral Rules, Consumer Protection Act, Dodd-Frank, Executive Orders, Financial Regulatory Reform

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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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FTC and DOJ Issue Guidance on Application of Antitrust Law to Employee Hiring and Compensation

On Thursday, October 20, 2016, the U.S. Federal Trade Commission (FTC) and the Department of Justice Antitrust Division (DOJ) jointly released Antitrust Guidance for Human Resources Professionals (guidance) to explain how…more

Compensation, DOJ, Enforcement, FTC, Hiring & Firing

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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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Ninth Circuit Finds Plausible Claim of Damages Avoids Dismissal of Bad Faith Lawsuit

Can an insurer be potentially liable for breach of contract or bad faith where the insured can only plead a plausible claim of damages? The Ninth Circuit has answered “yes” in a recent decision in the case of Beverly Burton v…more

Bad Faith, Data Breach, Federal Rules of Civil Procedure, Insurance Industry, Life Insurance

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Supreme Court Overturns Former VA Governor’s Conviction Based on Narrowed Federal Bribery Definition

On June 27, 2016, in an 8-0 decision, the U.S. Supreme Court reversed and remanded to the Fourth Circuit the conviction of former Virginia Governor Robert McDonnell on honest services fraud charges and charges that Governor…more

Bribery, Criminal Prosecution, Governor McDonnell, Honest Services Fraud, McDonnell v US

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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, Limited Liability Company (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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Washington Supreme Court Limits “Insurance Fair Conduct Act” — Three Things Insurers Must Know

On Groundhog Day 2017, the Washington Supreme Court issued its first major opinion interpreting the state’s 2007 “Insurance Fair Conduct Act” (IFCA). The decade-old legislation had caused shockwaves among insurers when its…more

Bad Faith, IFCA, Insurance Industry, Insureds, State Farm

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Sometimes It’s Hard to Waive Subrogation: Pacific Indemnity v. Deming

According to the recent decision of the U.S. Court of Appeals for the First Circuit in Pacific Indemnity Company v. Deming, 2016 WL 3607028, 2016 U.S. App. LEXIS 12374 (July 5, 2016) common contractual provisions that defendants…more

Appeals, Bylaws, Condominium Trust, Condominiums, Contract Terms

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2016/2017 Labor & Employment Observer

Activist NLRB Created More Problems For All Employers in 2016 - What Happens Under President Trump? During 2016, the National Labor Relations Board (NLRB or the Board) maintained its generally pro-union, anti-employer…more

21st Century Cures Initiative, ADA, Affordable Care Act, Ambush Election Rules, Anti-Retaliation Provisions

See All Updates »

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 »

Texas Supreme Court Classifies Mosquitos as Wild Animals, Discharges Liability for Mosquito Bites

The Texas Supreme Court handed property owners a major victory on an issue of increasing importance as West Nile Virus and Zika Virus spread around the country. The court held that the doctrine of ferae naturae limits a property…more

Property Owners, TX Supreme Court, Zika

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February 2017 Update on Significant DOT, FAA and Other Federal Agencies’ Aviation-Related Regulatory Actions

This edition of the Cozen O’Connor Aviation Regulatory Update discusses DOT’s final approval of antitrust immunity for Delta Air Lines and Aeromexico, DOT’s proceeding to reallocate some of Delta/Aeromexico’s Mexico City and JFK…more

Amtrak, Antitrust Immunity, Aviation Industry, Customs and Border Protection, Delta Airlines

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Lessons Emerging from Pinnacle Hip Bellwether Trials

In a staggering verdict, a Texas jury recently awarded over $1 billion against Johnson & Johnson (“J&J”) and its subsidiary DePuy Orthopaedics Inc. (“DePuy”) (collectively referred to as “Defendants”) to six California…more

BMW, CA Supreme Court, DePuy Hip Replacement, Johnson & Johnson, Jury Verdicts

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Summary Judgment May Be Appropriate When Insured Fails to Take Reasonable Measures to Prevent Property Damage

Many first party property insurance policies exclude claims for water damage that occurs when the insured premises is left vacant or unoccupied, unless the insured has used reasonable care to prevent such losses. In litigation…more

Allstate, Denial of Insurance Coverage, Insurance Industry, Insurance Litigation, Property Damage

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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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Making The Divorce Process Easier For Victims Of Spousal Abuse

Pennsylvania allows parties to a divorce action to seek both no-fault and fault divorces. While fault remains available, the overwhelming majority of divorces are granted under no-fault grounds. The statutory framework for…more

Bodily Injury, Divorce, Domestic Violence, Marriage, New Legislation

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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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Fifth Circuit Provides Road Map for Review and Trial of Bad Faith Claims in Mississippi

Mississippi essentially has three levels of claim when insurance is at issue: (1) mere breach of contract, allowing recovery of contract damages; (2) breach of contract + no arguable basis for breach, which entitles recovery of…more

Appeals, Bad Faith, Bifurcation, Breach of Contract, Insurance Litigation

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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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Colorado Court Finds Legal Marijuana Insurable Under Commercial Property Policy and Orders Trial on Claim for Damaged Buds

ArcView Group, which tracks the legal marijuana markets, recently estimated that legal U.S. pot sales could reach $6.7 billion in 2016. As the legal marijuana economy has grown, insurance coverage for this emerging industry has…more

Commercial General Liability Policies, Commercial Insurance Policies, Corporate Counsel, Insurance Industry, Marijuana

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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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When a Policy Limits Offer is Not Enough: A Cautionary Tale of a Failure to Settle Case

In a recent unpublished decision, the California Court of Appeals upheld a $3 million judgment against an auto liability insurer that rejected proposed language in a settlement agreement, notwithstanding the insurer’s policy…more

Appeals, Auto Insurance, Bad Faith, Car Accident, Corporate Counsel

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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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2016 Presidential Prognostications & Insights: The Democratic Race Winds Down

Mark, Howard and Blake discuss the state of the Democratic race. Also, Bernie Nash and Lori Kalani, co-chairs of Cozen O'Connor's State AG practice, discuss the State AG races…more

Bernie Sanders, Hillary Clinton, Political Candidates, Presidential Elections, Trump Administration

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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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Trump Administration Turns Up the Heat on Iran

On February 3, 2017, in response to recent Iranian ballistic missile tests, the U.S. Office of Foreign Assets Control (OFAC) added 13 individuals and 12 entities to the Specially Designated Nationals and Blocked Persons (SDN)…more

Iran, Iran Sanctions, Joint Comprehensive Plan of Action (JCPOA), OFAC, SDN List

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Text Messages Add New Layer of Risk to Deal-Making in the Modern Age

Texting is becoming ubiquitous in this era of 24/7 connectivity, but a recent court decision stands as a strong reminder that those quickly composed texts can be held up as a “writing” sufficient to seal a multi-million dollar…more

Commercial Real Estate Contracts, Contract Terms, Electronic Communications, Letters of Intent, Offers

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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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Expanding When Liability is “Reasonably Clear”: Massachusetts Court Chips Away at Bad Faith Counterarguments

Earlier this month, a Massachusetts Appellate Court affirmed a trial court’s award of bad faith damages in a case where it found the insurer’s approach to a claim to be “at best inattentive, if not incompetent.” Although the…more

Bad Faith, Insurance Litigation, Subcontractors

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Don’t Get Burned by a “Holt Demand” in Georgia

Georgia has a very specific law called “Holt demands” concerning time-limited demands made against a liability insurance policy. In Southern General Ins. Co. v. Holt, 262 Ga. 267, 416 S.E.2d 274 (1992), the Georgia Supreme Court…more

Bad Faith, Calculation of Damages, GA Supreme Court, Liability Insurance, Policy Limits

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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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Pennsylvania’s New Law for Valuing Acquired Municipal/Authority Water and Wastewater Systems

On Thursday, April 14, 2016, Pennsylvania Governor Tom Wolf signed Act 12 of 2016 (Act 12) into law. Among other things, Act 12 revises Chapter 13 of the Pennsylvania Public Utility Code (the Code) to provide a framework for…more

Acquisitions, Fair Market Value, Governor Wolf, Municipalities, Public Utility

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Seventh Circuit Holds Pre-Bankruptcy Termination of Lease May Be Avoidable Transfer

Landlords dealing with troubled tenants often enter into termination agreements that dictate terms for the consensual terminations of unexpired leases. Among other benefits, such termination agreements provide certainty and…more

Commercial Bankruptcy, Commercial Leases, Corporate Counsel, Fraudulent Transfers, Lease Termination

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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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Washington Court Rejects Bad Faith Coverage by Estoppel Because Insured Was Insulated from Liability

This week, the Division I Washington Court of Appeals granted partial relief to an insurer and held that if an insured is legally insulated from any exposure to a tort victim, the presumption of harm in a bad faith claim against…more

Bad Faith, Estoppel, Insurance Industry, Insurance Litigation

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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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February 2017 Update on Significant DOT, FAA and Other Federal Agencies’ Aviation-Related Regulatory Actions

This edition of the Cozen O’Connor Aviation Regulatory Update discusses DOT’s final approval of antitrust immunity for Delta Air Lines and Aeromexico, DOT’s proceeding to reallocate some of Delta/Aeromexico’s Mexico City and JFK…more

Amtrak, Antitrust Immunity, Aviation Industry, Customs and Border Protection, Delta Airlines

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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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Does Arbitration Belong in the Nursing Home World?

As part of admission into a nursing home, a facility typically requires prospective residents to agree to binding arbitration. Arbitrating disputes generally allows nursing facilities to handle disputes without incurring the…more

Arbitration Agreements, Binding Arbitration, CMS, Nursing Homes, Unconscionable Contracts

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NERC Increasing Penalties for Fundamentally Failing to Comply with Cyber Standards

For the second time in less than a year, the North American Electric Reliability Corporation (NERC) has imposed a six-figure penalty on a participant in the electric market for fundamentally failing to comply with the NERC…more

CIP, Cyber Attacks, Electricity, Energy Sector, NERC

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Lack of Federal Cannabis Regulations Continue to Foster Health and Safety Concerns

Cannabis products available to consumers under state legalization laws continue to expand in volume and variety. As the industry grows, so too do the risks and liabilities. Though the U.S. Food & Drug Administration (FDA) keeps…more

FDA, Health and Safety, Marijuana, Marijuana Related Businesses

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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 New Issue Price Rules

On December 9, 2016, the Internal Revenue Service (the IRS) released new regulations under Section 148 of the Internal Revenue Code of 1986, as amended, (referred to herein as the code) regarding the determination of the issue…more

Bonds, Initial Public Offerings, Internal Revenue Code (IRC), IRS, Issue Price

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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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FTC and DOJ Issue Guidance on Application of Antitrust Law to Employee Hiring and Compensation

On Thursday, October 20, 2016, the U.S. Federal Trade Commission (FTC) and the Department of Justice Antitrust Division (DOJ) jointly released Antitrust Guidance for Human Resources Professionals (guidance) to explain how…more

Compensation, DOJ, Enforcement, FTC, Hiring & Firing

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Insurer’s Denial of Mitigation Claim for Extra Costs to Prevent Cancellation of Contract Upheld

Many property insurance policies that provide coverage for business interruption losses also include “extra expense” coverage for reasonable and necessary extra costs to temporarily continue as nearly as possible normal business…more

Business Income, Business Interruption, Commercial Insurance Policies, Insurance Industry, Insurance Litigation

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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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Prohibition Against Listing Apartments or Units on Home-Sharing Sites

On Friday, October 21, 2016, Governor Cuomo signed a bill banning the illegal advertising of apartment or units in Class A buildings on home-sharing sites such as Airbnb. The bill piggybacks on the 2010 law, which banned rentals…more

Advertising, Affordable Housing, Apartments, Governor Cuomo, Rental Property

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Assignment v. Subrogation — Prosecuting Recovery Actions Arising from Personal Injury Claims

It is common in most jurisdictions that personal injury claims cannot be assigned. This can occasionally present a concern when an insurance carrier attempts to bring a contribution action against a third-party tortfeasor…more

Assignments, Contribution Claims, Homeowner's Insurance, Liability Insurance, Licensees

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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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FTC and DOJ Issue Guidance on Application of Antitrust Law to Employee Hiring and Compensation

On Thursday, October 20, 2016, the U.S. Federal Trade Commission (FTC) and the Department of Justice Antitrust Division (DOJ) jointly released Antitrust Guidance for Human Resources Professionals (guidance) to explain how…more

Compensation, DOJ, Enforcement, FTC, Hiring & Firing

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Pennsylvania Issues Grower/Processor and Dispensary Permit Applications for Medical Marijuana Program

On January 17, 2017, the Pennsylvania Department of Health (“DOH”) released grower/processor and dispensary permit applications (“Applications”), which can be found on Pennsylvania’s Medical Marijuana Program website. DOH will…more

Department of Health, Dispensaries, Marijuana Cultivation, Medical Marijuana

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Prejudice Not Required in New Jersey To Deny Coverage for Late Notice Under a Claims Made Policy

On February 11, 2016, the Supreme Court of New Jersey in Templo Fuente de Vida Corp. v. National Union Fire Ins. Co. of Pittsburgh, declared that an insurance company was not required to show it suffered prejudice before…more

Breach of Contract, Claims Made Policy, D&O Insurance, Denial of Insurance Coverage, Late Notices

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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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San Francisco Ordinance Requires Six Weeks of Fully Paid Parental Leave

San Francisco just became the first city in the United States to require employers to provide workers with up to six weeks of fully paid parental leave for the birth or adoption of a child. This benefit applies to mothers and…more

Local Ordinance, Paid Family Leave Law, Parental Leave, Wage and Hour

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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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How the United Kingdom’s Vote to Leave the European Union Affects Your EU Trademarks and Patents

The United Kingdom (UK) voted to leave the European Union (EU). The vote to leave the EU will not affect the UK’s relationship with the European Patent Office (EPO). The EPO is governed by the European Patent Convention…more

Community Designs, EU, European Patent Convention, European Patent Office, Intellectual Property Protection

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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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Seventh Circuit Says No Asylum for Bisexual Man; Posner Dissents

Last week, the Seventh Circuit declined to review the asylum application of a bisexual individual who applied for fear of persecution. Ray Fuller, 51, told an immigration judge and the Board of Immigration Appeals that he could…more

Appeals, Asylum, Board of Immigration Appeals, Conditional Permanent Residence, Criminal Prosecution

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Are Attorneys’ Bills Privileged Once Litigation Ends – California Supreme Court Says No in ACLU Litigation?

The California Supreme Court recently held, in Los Angeles Board of Supervisors v. Superior Court (2016) that attorneys’ invoices may not be protected by the attorney-client privilege after litigation ends. The issue arose out…more

ACLU, Attorney-Client Privilege, Costco, Legal Fees, Privileged Documents

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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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Rescission: An Underutilized Tool

The rescission of an insurance policy is one of the most underutilized tools in handling insurance claims. If used properly, it unwinds the insurance transaction and the parties are restored to their position prior to the…more

Bad Faith, Insurance Industry, Material Misrepresentation, Misrepresentation, Rescission

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Establishing General Jurisdiction Post-Daimler Using Waiver or Consent

Determining where to file suit in a subrogation claim can have implications both monetarily and for convenience. Courts must have jurisdiction over a defendant for the case to proceed. The easiest path to jurisdiction is…more

DaimlerChrysler v Bauman, General Jurisdiction, Personal Jurisdiction, Specific Jurisdiction

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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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Cyber Attacks Reach Subrogation

It was just a matter of time. As cyber-attacks rose and the data security breaches became increasingly devastating to businesses and individuals, cyber breach insurance became more prevalent. And where insurance appears,…more

Cyber Attacks, Cyber Insurance, Cybersecurity, Data Breach, Data Security

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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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2016 Presidential Prognostications & Insights: The Democratic Race Winds Down

Mark, Howard and Blake discuss the state of the Democratic race. Also, Bernie Nash and Lori Kalani, co-chairs of Cozen O'Connor's State AG practice, discuss the State AG races…more

Bernie Sanders, Hillary Clinton, Political Candidates, Presidential Elections, Trump Administration

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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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President Trump Orders Far-Reaching Suspension of Entry: The Response and What to Expect Next

On January 27, 2017, President Trump issued an Executive Order (EO), titled, “Protecting the Nation from Foreign Terrorist Entry into the United States.” Among other provisions, the EO suspends immigrant and nonimmigrant entry…more

DHS, Executive Orders, Foreign Nationals, Green Cards, Immigrants

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New York State Gifts Employers With State Wage Regulation End-of-Year Overhaul

While almost everyone’s attention is focused on changes that the Trump administration will bring at the national level, New York is about to implement far-reaching regulations that will significantly impact employers throughout…more

DOL, Exempt-Employees, Minimum Salary, Minimum Wage, Non-Exempt Employees

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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

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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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The Duty to Follow-up Part II: When The Underlying Litigation Changes

Last month, we discussed the duty to follow-up in the context of an offer to settle made by a tort claimant and how neglect of that duty cost an insurer dearly by converting a claim that could have been settled for $25,000 into…more

Auto Insurance, Bad Faith, Damages, Insurance Industry, Partial Summary Judgments

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No Closure Yet on the Issue of Aggregation of Claims Against Solicitors

The Court of Appeal in AIG Europe Ltd v OC320301 LLP (formerly The International Law Partnership LLP) has ordered a retrial of the question of whether actions brought by 214 investors in two failed holiday property schemes in…more

Aggregation Rules, Appeals, Commercial Court, Escrow Accounts, Indemnity Insurance

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Futures in Doubt of CMS’ New Mandatory Bundled Payment Models and Medicare Shared Savings Program Track 1+

Word spread quickly Monday (December 20, 2016) about CMS’ issuance of final regulations (to be published in the Federal Register on January 3, 2017) rolling out new mandatory bundled payments models for Acute Miocardial…more

CMS, HHS, Incentives, Medicare, Medicare Access and CHIP Reauthorization (MACRA)

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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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The Critical Role of Telemedicine in the Addiction Crisis

Telemedicine is now mainstream. Surprisingly, however, one area in which telemedicine has not been used to its fullest capability is drug addiction treatment. As you are aware, the country is in the midst of an addiction crisis…more

Drug & Alcohol Abuse, Health Care Providers, Telemedicine

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New York State Gifts Employers With State Wage Regulation End-of-Year Overhaul

While almost everyone’s attention is focused on changes that the Trump administration will bring at the national level, New York is about to implement far-reaching regulations that will significantly impact employers throughout…more

DOL, Exempt-Employees, Minimum Salary, Minimum Wage, Non-Exempt Employees

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Commercial Trucking Goes Green for Safer Streets

A new federal mandate requires most commercial truck drivers to “go green” by trading in their old paper logs for electronic logging devices (ELDs) by December 18, 2017. Thought to affect roughly 3.5 million truck drivers, the…more

Commercial Truck Drivers, Department of Transportation (DOT), Electronic Devices, Trucking Industry

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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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Pennsylvania Issues Grower/Processor and Dispensary Permit Applications for Medical Marijuana Program

On January 17, 2017, the Pennsylvania Department of Health (“DOH”) released grower/processor and dispensary permit applications (“Applications”), which can be found on Pennsylvania’s Medical Marijuana Program website. DOH will…more

Department of Health, Dispensaries, Marijuana Cultivation, Medical Marijuana

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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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#servicebysocialmedia — Federal Courts Allow Use of Social Media to Serve Foreign Defendants

In the recent decision of St. Francis Assisi v. Kuwait Finance House, et al., Case No. 3:16-cv-3240-LB (N.D. Ca. September 30, 2016), the U.S. District Court for the Northern District of California allowed a plaintiff to serve a…more

Federal Rules of Civil Procedure, Foreign Defendants, ISIS, Social Media, Twitter

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California Supreme Court Upholds Replacement Cost Estimate Regulation (For Now)

In 2011, the California Insurance Commissioner promulgated a regulation governing replacement cost estimates for homeowners insurance (Cal. Code Regs., tit. 10, §2695.183 [the Regulation]). After the trial court and intermediate…more

Administrative Procedure Act, CA Supreme Court, Denial of Insurance Coverage, Homeowner's Insurance, Insurance Litigation

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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

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Third Circuit Decisions Affirms Contractual Extension/Modification of Maritime Liens

A decision issued by the U.S. Court of Appeals for the Third Circuit on April 20, 2016, affirms the ability of ocean carriers and their customers to extend and/or modify the possessory lien that carriers have on cargo under…more

Contract Terms, Federal Maritime Commission, Liens, Shipping Cargo, Vessels

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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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Rescission: An Underutilized Tool

The rescission of an insurance policy is one of the most underutilized tools in handling insurance claims. If used properly, it unwinds the insurance transaction and the parties are restored to their position prior to the…more

Bad Faith, Insurance Industry, Material Misrepresentation, Misrepresentation, Rescission

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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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The Third Parties (Rights against Insurers) Act 2010 and Its Impact on Subrogated Claims

It has been some time coming, but on August 1, 2016, the operative provisions of the Third Parties (Rights against Insurers) Act 2010 (the Act) will come into force. The Act will significantly improve the subrogation prospects…more

Insolvency, Insurance Industry, Insurance Litigation, Ireland, Policies and Procedures

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The Illinois Supreme Court Opens Door to Claims Against Government Entities for Flood Losses

Floods lead to costly claims for insurance companies. Unfortunately, subrogated insurers are frequently precluded from pursuing governmental entities that cause flooding because they enjoy immunity from tort claims. So, for…more

Flood Insurance, Government Entities, Governmental Employees Tort Immunity Act, Insurance Industry, Subrogation

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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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Five Washington Realities for President Trump’s Consideration

Last week, we published an op-ed, “Here are Five things President Trump can't change,” in The Hill discussing long-established and irrevocable rules of how D.C. works that Trump and his team need to factor into their thought…more

Attorney Generals, Executive Orders, Inspector General, Procurement Guidelines, Trump Administration

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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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New FDA Draft Guidance on Benefit-Risk Factors Affecting Medical Device Compliance and Enforcement

In June, the U.S. Food and Drug Administration released draft guidance to clarify the benefit and risk factors it may consider in compliance and enforcement actions involving medical devices. Medical device manufacturers…more

Draft Guidance, FDA, Manufacturers, Medical Benefits, Medical Devices

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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, Limited Liability Company (LLC), New Legislation

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Seventh Circuit Eases ERISA Plaintiffs’ Pleading Burden Against Private Company Plan Fiduciaries

On August 25, 2016, the U.S. Court of Appeals for the Seventh Circuit, in Allen v. GreatBanc Trust Co., No. 15-3569, 2016 WL 4474730 (7th Cir. 2016), held that (1) the defendant in an ERISA case, rather than the plaintiff, bears…more

Affirmative Defenses, Appeals, Burden of Proof, Corporate Counsel, ERISA

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Third Circuit Rules in Favor of Noteholders on Make-Whole Provision in Debt Indenture

Debt indentures often contain what is known as a “make-whole” provision, which requires the borrower, upon an early repayment of the debt, to make an additional payment to the lender to compensate the lender for its anticipated,…more

Bankruptcy Court, Borrowers, Chapter 11, Commercial Bankruptcy, Debt

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Erecting a Legal Defense Through Social Media

I hope you had a very happy holiday season and New Year. Both seem to be distant memories at this point. Many of the upcoming posts in 2017 will undoubtedly address, and be impacted by, the nature of the new Trump administration…more

Employer Liability Issues, Hiring & Firing, Social Media, Social Media Policy

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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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Road to the Oval Office: Live at the RNC – July 19

Live from Cleveland, Mark Alderman, Blake Rutherford and Jim Schultz provide an update on developments unfolding at the Republican National Convention. Blake: Thanks, and welcome everyone to the eleventh call in our series…more

Bernie Sanders, Hillary Clinton, Political Campaigns, Political Candidates, Political Conventions

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Fifth Circuit Clarifies Claims Handling Quandary: When Does a Cause of Action Accrue?

The U.S. Court of Appeals for the Fifth Circuit issued a per curiam opinion in De Jongh v. State Farm Lloyds, 2016 U.S. App. LEXIS 21432 (5th Cir. 2016) that clarified a typical but potentially tricky question involving property…more

Cause of Action Accrual, Insurance Industry, Property Damage, Property Insurance, State Farm

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Five Washington Realities for President Trump’s Consideration

Last week, we published an op-ed, “Here are Five things President Trump can't change,” in The Hill discussing long-established and irrevocable rules of how D.C. works that Trump and his team need to factor into their thought…more

Attorney Generals, Executive Orders, Inspector General, Procurement Guidelines, Trump Administration

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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

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Seventh Circuit Eases ERISA Plaintiffs’ Pleading Burden Against Private Company Plan Fiduciaries

On August 25, 2016, the U.S. Court of Appeals for the Seventh Circuit, in Allen v. GreatBanc Trust Co., No. 15-3569, 2016 WL 4474730 (7th Cir. 2016), held that (1) the defendant in an ERISA case, rather than the plaintiff, bears…more

Affirmative Defenses, Appeals, Burden of Proof, Corporate Counsel, ERISA

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Pennsylvania’s New Law for Valuing Acquired Municipal/Authority Water and Wastewater Systems

On Thursday, April 14, 2016, Pennsylvania Governor Tom Wolf signed Act 12 of 2016 (Act 12) into law. Among other things, Act 12 revises Chapter 13 of the Pennsylvania Public Utility Code (the Code) to provide a framework for…more

Acquisitions, Fair Market Value, Governor Wolf, Municipalities, Public Utility

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Claim For Fraudulent Wire Transfer Under Commercial Crime Policy Found to be Covered, Although Denial Not In Bad Faith

Principle Solutions Group, LLC, an information technology company, lost $1.717 million when it became the victim of a fraud scheme for which it sought coverage under the terms of a commercial crime policy issued by Ironshore…more

Acquisitions, Bad Faith, Banks, China, Commercial Crime Insurance Polices

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New Jersey Repeals Estate Tax

As a result of new legislation, New Jersey has eliminated its estate tax as of January 1, 2018. Under the estate tax, New Jersey levies a tax on all assets of a decedent’s estate in excess of $675,000 (except assets passing to…more

Death Tax, Estate Planning, Estate Tax, Inheritance Tax

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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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Waiting for the FDA is the Hardest Part, California Federal Judge Rules

What it means for food to be “natural” has become a topic of contentious debate, and the Food and Drug Administration (“FDA”) entered the fray earlier this year, requesting comments on use of the term on food labeling. Some…more

Class Action, FDA, Food Labeling, Food Manufacturers, Food Marketing

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Protect Against Cyber Attacks: A New Guide to Help Small Businesses

No business is too small to be the victim of a cyberattack. In fact, as larger companies invest more resources in cybersecurity, attackers are beginning to target smaller, less secure businesses. It is important for every small…more

Cyber Attacks, Cybersecurity, Data Protection, Data Security, Hackers

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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, Limited Liability Company (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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Washington Court Rejects Bad Faith Coverage by Estoppel Because Insured Was Insulated from Liability

This week, the Division I Washington Court of Appeals granted partial relief to an insurer and held that if an insured is legally insulated from any exposure to a tort victim, the presumption of harm in a bad faith claim against…more

Bad Faith, Estoppel, Insurance Industry, Insurance Litigation

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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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New FinCEN Proposal Will Extend AML Rules to Currently Exempt Banks and Other Institutions

Seeking to close a perceived “gap” in regulations intended to facilitate the government’s efforts to curb money laundering and the financing of terrorism, the U.S. Department of the Treasury’s Financial Crimes Enforcement…more

Anti-Money Laundering, Bank Secrecy Act, Banks, Customer Due Diligence (CDD), Customer Identification Program (CIP)

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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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Three Key Immigration Developments in President Trump’s First Weeks

Immigration has been in the forefront of the news since President Trump took office and will likely remain so in the near future. Here, we discuss three key business immigration issues that have seen significant developments in…more

Executive Orders, Foreign Nationals, Foreign Workers, Green Cards, H-1B

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Three Key Immigration Developments in President Trump’s First Weeks

Immigration has been in the forefront of the news since President Trump took office and will likely remain so in the near future. Here, we discuss three key business immigration issues that have seen significant developments in…more

Executive Orders, Foreign Nationals, Foreign Workers, Green Cards, H-1B

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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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New York Court of Appeals Rejects Litigation Science under Frye Standard

Put quotes around the phrase “litigation science” and Google it. Go ahead, we’ll wait. . . . . What did you find? Not good, right. You found a lot. Too much. The first Google page alone shows how controversial this subject…more

Birth Defects, Daubert Standards, Evidence, Expert Testimony, Kelly-Frye Test

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Washington Supreme Court Expands Physicians’ Duty to Third Parties

Most states have laws either requiring or permitting mental health professionals to disclose information about patients who may become violent. These voluntary or mandatory reporting laws require a balancing of the…more

Duty to Warn, Medical Malpractice, Medical Negligence, Mental Health, Physician-Patient Confidentiality

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2016/2017 Labor & Employment Observer

Activist NLRB Created More Problems For All Employers in 2016 - What Happens Under President Trump? During 2016, the National Labor Relations Board (NLRB or the Board) maintained its generally pro-union, anti-employer…more

21st Century Cures Initiative, ADA, Affordable Care Act, Ambush Election Rules, Anti-Retaliation Provisions

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Settlements Ended Under the SEC’s Municipalities Continuing Disclosure Cooperation (MCDC) Initiative

The Securities and Exchange Commission (SEC) has ended settlements under its Municipalities Continuing Disclosure Cooperation (MCDC) Initiative. Details of the SEC’s MCDC Initiative can be found in our prior Alert. For those…more

MCDC, Municipal Securities Issuers, Municipalities, SEC, Self-Reporting

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Missouri Federal Court Identifies Roadblocks For An Excess Carriers’ Claim For Attorney Fees Against Primary Carrier

The court’s decision in Axis Specialty Insurance Company v. New Hampshire Insurance Company highlights the scope of recovery available for an excess carrier seeking to recover against a primary carrier. Emboldened by the recent…more

Excess Policies, Indemnity Insurance, Insurance Litigation, Settlement

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NLRB General Counsel Takes a Bold Stance on Student Athletes

More than a year and a half after the National Labor Relations Board (NLRB or the Board) ruled that Northwestern University’s football players could not form a union, NLRB General Counsel Richard Griffin announced his conclusion…more

College Athletes, Educational Institutions, Football, NCAA, NLRA

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Overview of Chinese Insurance Law

As global insurers continue to penetrate the Chinese market, our offices are seeing an ever increasing number of Chinese law related inquiries, including in the fields of credit and political risk, property and other lines…more

China, Condition Precedent, Confidential Information, Duty to Disclose, Exemptions

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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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The Eighth Circuit Applies Insured vs. Insured Exclusion to Non-Insured Co-Plaintiffs

In a significant decision interpreting one of the most frequently litigated exclusions in the world of D&O insurance, the Eighth Circuit recently ruled that an Insured vs. Insured exclusion applied to an insured director’s…more

Corporate Counsel, D&O Insurance, Insurance Industry, Insureds, Private Company Shares

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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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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,