Cozen O'Connor

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Kristie Abel

Goldman Ordered to Advance Defense Fees for Former Employee Accused of Stealing Computer Codes

On October 16, 2013, the U.S. District Court for the District of New Jersey, in Aleynikov v. The Goldman Sachs Group, Inc., found that a former vice president and computer programmer was an “officer” of Goldman Sachs & Co., Inc…more

Advances, Aleynikov, Attorney's Fees, Corporate Officers, Criminal Prosecution

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Nejat Ahmed

California Court Holds An Adjuster May Be Personally Liable For Misrepresentations Made To The Insured

Earlier this month, an intermediate level California court rejected arguments that an insurance company’s adjuster owes no independent duty to the policyholders and cannot be liable even for “appalling” misconduct if he is…more

Claims Adjusters, Misrepresentation, Willful Misconduct

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Julie Albright

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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Mark Alderman

Health Care Reform Implementation Update - April 21, 2014

On April 14, the Congressional Budget Office (CBO) and the Joint Committee on Taxation (JCT) reported their findings that show a smaller rise in insurance premium costs under the Affordable Care Act (ACA) than previously…more

Affordable Care Act, CBO Report, Census Bureau, CHIP, CMS

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Jessica Alexander

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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Charlotte Archer

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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David Barron

Houston Mayor Proposes City Ordinance On Sexual Orientation Discrimination

Houston is one of the few major cities in the country without a law prohibiting discrimination on the basis of sexual orientation. Neither federal nor Texas law includes such a protected category, however, other Texas cities…more

Sexual Orientation, Sexual Orientation Discrimination

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Joshua Belcher

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

DOT, Hazardous Substances, Oil & Gas, Railways

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Richard Bennett

New York Adopts a Broad Definition of Covered Vandalism

On October 17, New York’s highest court held that an insured could recover for a “vandalism” loss without showing that the vandal in question intended to damage the insured’s property. Indeed, proof of intent to cause property…more

Evidence, Property Damage, Standard of Proof

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Craig Bennion

The Washington Supreme Court Holds That in First-Party Bad Faith Litigation There Is a Presumption of No Attorney-Client Privilege

When an insured sues an insurer for bad faith, how much of the claims file maintained by the insurer is discoverable? In a 5-4 decision, the Washington Supreme Court recently weakened insurers’ ability to protect confidential…more

Attorney-Client Privilege, Bad Faith, Civil Fraud Exception, Discovery, Fiduciary Duty

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L. Stephen Bowers

Use-It-or-Lose-It Rule Modified for Health Care FSAs

The IRS has issued IRS Notice 2013-71, allowing limited carry-over of amounts in employees’ flex plan accounts to the following plan year. Under the guidance employers may permit participants to carry over up to $500 of unused…more

Carryover Basis, Flexible Spending Accounts, Healthcare, IRS

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Jennifer Brandt

Putting A Ring On It (And Not Getting It Back)

State rules vary governing what happens to an engagement ring if the marriage fails to occur. There are even different rules from state to state determining whether the ring becomes marital property subject to division after…more

Divorce, Separation

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Joseph Bright

Fuel Tax Assessment Affirmed

The Commonwealth Court affirmed on several grounds an assessment under the Liquid Fuels and Fuels Use Tax Act. Luther P. Miller, Inc. v. Commonwealth, No. 550 F.R. 2009 (Pa. Commw. Mar. 20, 2014). The Department of Revenue…more

Fuel Tax, Sales & Use Tax

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Melissa Brill

The New York Court of Appeals Vacates its Decision and Rejects “Coverage by Estoppel”

The New York Court of Appeals rarely hears reargument of its decisions, let alone reverses itself. On February 18, 2014, the Court of Appeals did just that…more

Attorney Malpractice, Banks, Estoppel, K2 Investment Group, Mortgages

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Nadia Bugaighis

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

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

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Jason Cabrera

President Obama Orders the Department of Labor to Modernize Overtime Rules

In a White House ceremony on Thursday, March 13, 2014, President Barack Obama signed a memorandum ordering the Secretary of Labor to “propose revisions to modernize and streamline the existing overtime regulations” governing the…more

DOL, Exempt-Employees, FLSA, Non-Exempt Employees, Unpaid Overtime

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Kevin Caraher

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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Jonathan Cavalier

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, Fifth Amendment, Officers, SEC, Securities Fraud

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Robert Chu

Highlights of the Omnibus HIPAA/HITECH Final Rule

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

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

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Christopher Clemenson

Courts Continue to Split on Whether Defense Obligation Is a First Party Benefit Under Colorado Law, but Agree Duty to Defend Is a Joint and Several Obligation

In D.R. Horton, Inc.—Denver v. Mountain States Mutual Casualty Co., No. 12-cv-01080 (February 25, 2013), another U.S. District Court judge for the District of Colorado determined a liability insured seeking defense costs from…more

Attorney's Fees, Bad Faith, Breach of Contract, Construction Defects, Declaratory Relief

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Leila Clewis

Severance Payments Remain Taxable Wages for Purposes of FICA

In an eight to zero decision (with Justice Kagan recused), the U.S. Supreme Court held on March 25 in United States v. Quality Stores, Inc. that severance payments made to involuntarily terminated employees are “wages” under the…more

FICA Taxes, Severance Pay

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Dennis Cohen

IRS Issues Important Historic Rehabilitation Tax Credit Guidance

Background - On December 30, 2013, the Internal Revenue Service issued its long-awaited historic rehabilitation tax credit guidance in the form of a Revenue Procedure that outlines a safe harbor for allocations of the…more

Equity Investors, IRS, Rehabilitation Benefits, Safe Harbors, Tax Credits

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Jessica Corbett

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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Andrea Cortland

Social Media — The Possibilities Are Endless!

Facebook. Instagram. YouTube. Twitter. LinkedIn. SnapChat. Flickr. Google+. Tumblr. WeChat. MySpace. WhatsApp. Reddit. The list of social media and networking sites goes on and on. It’s fairly common knowledge…more

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Alicia Curran

The Hawaii Supreme Court Answers “Other Insurance” Provisions and the Duty to Defend

The Hawaii Supreme Court in Nautilus Ins. Co. v. Lexington Ins. Co., — P.3d —-, 2014 WL 560805 (2014), answers the following certified questions from the 9th Circuit on “other insurance” provisions and the duty to defend…more

Duty to Defend, Insurance Companies

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Michael de Leeuw

Fear and Trebling: E-Book Class Action Takes a(nother) Bite out of Apple

The legal drama continues for Apple, Inc., as the tech giant recently suffered another in a string of significant legal setbacks in the e-book antitrust saga in the Southern District of New York. Last month, Judge Denise Cote…more

Antitrust Litigation, Apple, Class Certification, e-Books, Price-Fixing

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Meredith Dishaw

Washington Supreme Court: Insurers May Not Reserve the Right to Seek Reimbursement of Non-covered Defense Costs

The Washington Supreme Court joined a minority of jurisdictions that hold that insurers may not unilaterally reserve the right to seek reimbursement for defense costs paid in defending non-covered claims through a reservation of…more

Excess Policies, Insurers, Legal Costs, Medicare, Prejudice

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Jay Dorsch

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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Kathleen Drapeau

Use-It-or-Lose-It Rule Modified for Health Care FSAs

The IRS has issued IRS Notice 2013-71, allowing limited carry-over of amounts in employees’ flex plan accounts to the following plan year. Under the guidance employers may permit participants to carry over up to $500 of unused…more

Carryover Basis, Flexible Spending Accounts, Healthcare, IRS

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Molly Eckman

Oregon Senate Bill 814 Regarding Environmental Claims Handling Regulations Signed into Law

On June 10, 2013, the governor of Oregon signed into law Senate Bill 814, creating sweeping reforms on environmental claims-handling regulations and available remedies for insureds facing liability for cleanup of contaminated…more

Contaminated Properties, Hazardous Substances, New Legislation

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Tracy Eggleston

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

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

Bad Faith, Burden of Proof, Evidence, Insurers, Outrageous Conduct

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Shauna Ehlert

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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Samantha Evans

Pennsylvania Federal Court Precludes Testimony of Proposed Bad Faith Expert for the Second Time

In the recent decision of Schifino v. GEICO General Ins. Co. et al., 2013 WL 2404115 (W.D.Pa. 2013), and for the second time in less than a year, the district court for the Western District of Pennsylvania precluded a plaintiff…more

Bad Faith, Expert Testimony, Expert Witness, GEICO, Investigations

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Richard Fama

FDA Announces 100k Genome Project

The Food and Drug Administration(FDA) and the Centers for Disease Control (CDC) are collaborating with the University of California Davis and Agilent Technologies, a chemical analysis/engineering company from Santa Clara,…more

CDC, FDA, Food Borne Bacteria, Food Safety, Genome Project

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Stacey Farrell

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

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

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

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Elizabeth Featherman

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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Megan Feehan

A Parent’s Right To College Records

For many parents, the financial support they provide to their children does not end after their children graduate from high school. For divorcing parents in particular, the payment of their children’s future college expenses is…more

Colleges, FERPA, Parental Rights, Student Records, Students

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Gregory Fliszar

HIPAA Audits Set to Begin in 2014: Another Enforcement Mechanism for HIPAA Compliance

The Department of Health and Human Services (HHS) is expected to launch its long-awaited HIPAA audit program sometime in 2014. The audit program will be run by HHS’ Office of Civil Rights (OCR), which is likely eager to get the…more

Audits, Compliance, HHS, HIPAA, HITECH

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Peter Fontaine

White House Initiative to Tackle Methane Emissions: New Regulations, Funding Opportunities Expected

On March 28, the White House announced a set of new policy initiatives to reduce emissions of methane, a greenhouse gas (GHG) 20 times more powerful than carbon dioxide. The Climate Action Plan—Strategy to Reduce Methane…more

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Jordan Fox

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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Robert Freeman

Infrastructure Alert - March 2014

On March 20, a proposed shipping alliance of three major shippers was approved by the Federal Maritime Commission. The P3 Network Vessel Sharing Agreement, consisting of Maersk Line, Mediterranean Shipping Company and CMA CGM,…more

Federal Maritime Commission, P3s, Shipping, Trucking Industry

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Debra Friedman

President Obama Wields His Executive Power Once Again to Target Federal Contractors on Pay Issues

On April 8, 2014, President Obama took two significant actions in the employee pay arena. He signed an Executive Order prohibiting federal contractors from retaliating against their applicants and employees for inquiring about,…more

Barack Obama, Disclosure, DOL, Executive Orders, Federal Contractors

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Arthur Fritzinger

Maintaining Privilege With Consultants - Practical Guide

Previously, we talked about the legal standards applied to claims of attorney-client privilege between a company's general counsel and outside consultants. Now, let's talk about practical tips for maintaining that…more

Attorney-Client Privilege, Confidentiality Agreements, Confidentiality Policies, Consultants, Corporate Counsel

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Scott Galla

Proposed Changes to Federal e-Discovery Rules

Proposed changes to the Federal Rules of Civil Procedure (Rules) may impact the management, scope and sanctions related to e-discovery in federal courts. The changes are aimed at encouraging early and active case management,…more

Federal Rules of Civil Procedure, Proposed Regulation

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Mark Gallant

Hospitals Prevail in Effort to Include Pennsylvania GA Days in the Medicare DSH Calculation

Two of Mercy Health System’s hospitals (Nazareth Hospital and the former St. Agnes Medical Center) successfully challenged, before Judge Ludwig of the U.S. District Court for the Eastern District of Pennsylvania, the Secretary…more

CMS, DSH, Eligibility, Healthcare, Hospitals

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Anaysa Gallardo

Florida No-Fault Examination Under Oath Requirement – One of These Policies Is Not Like the Other

Due to changes effective January 1, 2013, the Florida Motor Vehicle No-Fault Law now codified the insured’s obligation to submit to an examination under oath (EUO). The newly amended statutory language explicitly states..…more

Auto Insurance, Car Accident, Examinations Under Oath, Insureds, Motor Vehicles

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Steven Gerber

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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Josh Greenbaum

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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Kathleen Grohman

Spoliation Instruction But No Terminating Sanctions in Coding Trade Secrets Case

The United States District Court for the Southern District of Texas declined to impose litigation ending discovery sanctions for several claims of spoliation, but does plan to issue a spoliation instruction in Quantlab…more

Sanctions, Spoliation, Trade Secrets

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Howard Grossman

“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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Steven Haas

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

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

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

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Dexter Hamilton

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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Michael Handler

PlayStation Problems: No Defense in Sony’s Cyberattack Suits

On February 21, 2014, a New York state trial court judge ruled that Zurich American Insurance Company has no duty to defend the Sony Corporation in lawsuits relating to a 2011 cyberattack on its PlayStation network. This…more

Cyber Attacks, Cybersecurity, Data Breach, Data Protection, Sony

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Keenya Harrold

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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T. David Higgins, Jr.

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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Kenneth Hong

PlayStation Problems: No Defense in Sony’s Cyberattack Suits

On February 21, 2014, a New York state trial court judge ruled that Zurich American Insurance Company has no duty to defend the Sony Corporation in lawsuits relating to a 2011 cyberattack on its PlayStation network. This…more

Cyber Attacks, Cybersecurity, Data Breach, Data Protection, Sony

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Gregory Hudson

Alabama Supreme Court Corrects the Perception that Alabama Law Contemplates Two Bad Faith Torts

In Brechbill v. State Farm Fire & Cas. Co., No. 1111117, ___ So. 3d ___, 2013 WL 5394444, 2013 Ala. LEXIS 126 (Ala. Sept. 27, 2013), the Alabama Supreme Court held that there is only one, as opposed to two, causes of action for…more

Bad Faith, Expert Testimony, Standard of Proof

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Hayes Hunt

Maintaining Privilege With Consultants - Practical Guide

Previously, we talked about the legal standards applied to claims of attorney-client privilege between a company's general counsel and outside consultants. Now, let's talk about practical tips for maintaining that…more

Attorney-Client Privilege, Confidentiality Agreements, Confidentiality Policies, Consultants, Corporate Counsel

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Marc Intriligator

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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F. Jacoby

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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Kimya Johnson

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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Thomas Jones

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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Don Kassilke

Implementation of Temporary Iran Sanctions Relief

Last November, the group of nations known as the P5+1 (United States, U.K., Germany, France, Russia and China) reached an initial understanding with Iran whereby Iran agreed to accept limits on its nuclear program in exchange…more

EU, Foreign Policy, Iran, Iran Sanctions, Middle East

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Sarah Kelly

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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Brian Kint

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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Megan Kirk

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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Erick Kirker

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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Matthew Klebanoff

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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Michael Klein

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

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

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

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Gary Klinger

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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William Knowles

Washington Bars Insurers from Maintaining Legal Malpractice Suit Against Policyholder Defense Counsel

In Stewart Title Guar. Co. v. Sterling Savings Bank, et al., Wash. No. 87087-0 (October 3, 2013), the Washington Supreme Court held that a nonclient insurer may not pursue a malpractice claim against appointed defense counsel…more

Attorney Malpractice, Duty of Care, Duty to Disclose, Insurers, Third-Party Liability

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Philip Kouyoumdjian

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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Julianna Labruto

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, Directors, Investors, Officers, Shareholders

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Katherine Layman

Highlights of the Omnibus HIPAA/HITECH Final Rule

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

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

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Mark Lazaroff

House Passes Energy Efficiency Bill

On March 5, 2014, the House of Representatives passed H.R. 2126, the “Energy Efficiency Improvement Act of 2014.” The bill was co-sponsored by Representatives David McKinley (R-W.Va.) and Peter Welch (D-Vt.). The bill received…more

DOE, Energy, Energy Efficiency, Energy Policy

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Robert Lee

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

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

Attorney Malpractice, Damages

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Rachel Lewis

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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Jonathan Lichtenstein

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

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

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

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Amanda Lorenz

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

American Guarantee & Liability Ins. Co., Attorney-Client Privilege, Bad Faith, Confidential Information, D.R. Horton

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Michelle Mallol

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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Virginia Markovich

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

CPSC, Product Recalls, Subrogation

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Richard Mason

Connecticut High Court Clarifies Aggregate Limit and Number of SIRs Under Professional Liability Policy

On January 28, 2014, the Supreme Court of Connecticut, in Lexington Ins. Co. v. Lexington Healthcare Group, Inc., 311 Conn. 29, addressed three issues that define the extent of coverage available under a medical professional…more

Medical Liability, Occurrence, Professional Liability

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Suzanne Mayes

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

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

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

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John McDonough

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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Camille Miller

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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Emily Miller

Supreme Court Holds That Items of Protective Clothing Are ‘Clothes’ for Purposes of the FLSA, and Questions the Viability of the De Minimis Rule in FLSA Cases

The U.S. Supreme Court yesterday released its much-anticipated decision in the case of Sandifer v. United States Steel Corporation, and held that Section 203(o) of the Fair Labor Standards Act (FLSA) — which allows parties to a…more

Collective Bargaining, De Minimis Claims, FLSA, Sandifer v U.S. Steel Corp, SCOTUS

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Kristy Miller

Fear and Trebling: E-Book Class Action Takes a(nother) Bite out of Apple

The legal drama continues for Apple, Inc., as the tech giant recently suffered another in a string of significant legal setbacks in the e-book antitrust saga in the Southern District of New York. Last month, Judge Denise Cote…more

Antitrust Litigation, Apple, Class Certification, e-Books, Price-Fixing

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Stephen Miller

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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Deborah Minkoff

Connecticut High Court Clarifies Aggregate Limit and Number of SIRs Under Professional Liability Policy

On January 28, 2014, the Supreme Court of Connecticut, in Lexington Ins. Co. v. Lexington Healthcare Group, Inc., 311 Conn. 29, addressed three issues that define the extent of coverage available under a medical professional…more

Medical Liability, Occurrence, Professional Liability

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Jeffrey Monhait

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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Alan Morrison

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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Anthony Morrone

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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Mark Mullen

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

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

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

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Kellyn Muller

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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Marie-Pier Nadeau

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, Insureds, Insurers, Subrogation

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Nicholas Neidzwski

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

American Guarantee & Liability Ins. Co., Attorney-Client Privilege, Bad Faith, Confidential Information, D.R. Horton

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Marilyn Neiman

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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Olufeyikemi Obafemi

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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Elena Park

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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Jeffrey Pasek

First and Ten: Will College Athletes Be the Next Wave of Unionization?

Everyone recognizes that college athletics are big business for the schools, but do they exploit the student athletes under the guise of amateurism? Thanks to a new decision out of the Chicago office of the National Labor…more

College Athletes, NLRB, Unions

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Christopher Passavia

Back to Basic? Big Changes Could Be Coming to a Securities Class Action Near You

Earlier this month, the Supreme Court heard the highly-anticipated oral argument in Hallburton Co. v. Erica P. John Fund, Inc. Prior to the argument, there was a growing consensus that the Court was likely going to overturn…more

Class Action, Fraud, Fraud-on-the-Market, Halliburton, Halliburton v Erica P. John Fund

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Martin Pavane

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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Robert Phelan

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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Alexandra Pryor

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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Christopher Raleigh

Seller’s Invocation of Force Majeure Under NAESB Contract Rejected by NJ Appellate Division

In a case of first impression that interpreted the force majeure provisions of an industry contract form promulgated by the North American Energy Standards Board (NAESB), Cozen O’Connor prevailed on behalf of plaintiff when, on…more

Energy, Energy Policy, Force Majeure Clause, Natural Gas, Oil & Gas

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Thomas Regan

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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Joseph Rich

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

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

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

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Shaan Rizvi

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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Carrie Rosen

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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Colin Roskey

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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Kathryn Rutigliano

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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Marisa Saber

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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Eileen Salimbene

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

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

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

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Angelo Savino

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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Michael Schmidt

Another Federal Player in the Social Media Sandbox

There seems to be room in the sandbox for lots of people to play. Recent recesses have seen the NLRB dominate the discourse over the do’s and don’ts when it comes to social media and employment law. But another federal…more

Discrimination, EEOC, Employer Liability Issues, Harassment, NLRB

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Dan Schulder

Fuel Tax Assessment Affirmed

The Commonwealth Court affirmed on several grounds an assessment under the Liquid Fuels and Fuels Use Tax Act. Luther P. Miller, Inc. v. Commonwealth, No. 550 F.R. 2009 (Pa. Commw. Mar. 20, 2014). The Department of Revenue…more

Fuel Tax, Sales & Use Tax

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Howard Schweitzer

Socially Responsible Procurement and Best Value

The New York Times had an article yesterday by Ian Urbina, The Shopping List as Policy Tool, that analyzes the possibility of using the government’s purchasing power to cure a range of social challenges, including limiting harsh…more

Federal Contractors, Procurement Guidelines

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Joann Selleck

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

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

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

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Shari Shapiro

Mind Your Administrative P's & Q's When Rejecting Energy Code Changes

The Court of Appeals of the State of New Mexico handed down a limited win for energy code advocates, holding that adopting changes to building codes that removed energy conservation provisions without any justification violated…more

Administrative Procedure Act, Building Codes, Energy Codes, Energy Efficiency

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Abby Sher

Pennsylvania District Court Considers Bad Faith Set-up as Affirmative Defense

As a matter of first impression under Pennsylvania law, the court in Shannon v. New York Central Mutual Insurance Company, No. 13-cv-1432 (M.D. Pa. Nov. 20, 2013) denied a motion to strike an insurer’s defense of “bad faith…more

Affirmative Defenses, Bad Faith, Duty to Settle, Insurers

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Michael Sherman

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, Directors, Investors, Officers, Shareholders

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Richard Silpe

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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Jake Skaggs

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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Marcy Stras

Fiscal Year 2014 Citizenship and Integration Grant Program

On April 1, 2014 USCIS began accepting applications for a competitive grant funding opportunity to promote immigrant civic integration and prepare permanent residents for citizenship. USCIS will offer up to $10 million in…more

Citizenship, Immigrants, Path To Citizenship, USCIS

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John Sullivan

New Jersey District Court Cleans Up Complaint in Washing Machine Class Action Litigation

Washing machine class actions have been so active recently that some firms may be scrambling to form their own appliance-law practice groups. And who knows? That might not be a bad idea. Some of our greatest legal minds, like…more

Class Action, Consumer Fraud, Material Defects, Mold Litigation, Samsung

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Ronald Tigner

Fifth Circuit Rejects Insured’s Attempt to Use Lack of Prejudice When Notice Provision is Separately Negotiated

The 5th Circuit rebuffed an insured’s attempt to circumvent policy language requiring notice within 30 days of a pollution occurrence in a bumbershoot (umbrella) policy in Starr Indemnity & Liability Company v. SGS Petroleum…more

Indemnity Agreements, Indemnity Insurance, Insureds, Negotiations, Notice Requirements

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Andrew Tobin

Unrest In Ukraine – The Insurance Implications

On 21 November 2013 protesters gathered in central Kiev to demand the resignation of President Yanukovich and his government following his sudden decision not to sign an Association and Free Trade Agreement with the European…more

EU, Free Trade Agreement, Insurers, Property Damage, Trade Policy

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Robert Tomilson

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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Ahren Tryon

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

DOT, Hazardous Substances, Oil & Gas, Railways

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Cheryl Upham

Fuel Tax Assessment Affirmed

The Commonwealth Court affirmed on several grounds an assessment under the Liquid Fuels and Fuels Use Tax Act. Luther P. Miller, Inc. v. Commonwealth, No. 550 F.R. 2009 (Pa. Commw. Mar. 20, 2014). The Department of Revenue…more

Fuel Tax, Sales & Use Tax

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Mark Vacha

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

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

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

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C. Wesley Vines

Claims Handling Reminders for Oklahoma Storm Losses

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

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

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George Voegele

Supreme Court Holds That Items of Protective Clothing Are ‘Clothes’ for Purposes of the FLSA, and Questions the Viability of the De Minimis Rule in FLSA Cases

The U.S. Supreme Court yesterday released its much-anticipated decision in the case of Sandifer v. United States Steel Corporation, and held that Section 203(o) of the Fair Labor Standards Act (FLSA) — which allows parties to a…more

Collective Bargaining, De Minimis Claims, FLSA, Sandifer v U.S. Steel Corp, SCOTUS

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David Walton

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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Sean Walton

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

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

Insurers, Pleading Standards, Pleadings, Statute of Limitations, Subrogation

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Matthew Weldon

Leading Arbitrators/Practitioners Address Trends In International Arbitration At New York Symposium

On Monday, March 10, 2014, Cozen O’Connor’s Martin Gusy participated in a panel discussion on current trends in international arbitration at Cardozo School of Law in New York. Other panelists included Ank Santens of White &…more

Arbitration, Arbitrators, International Arbitration

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Charles Wheeler

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

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

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

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Melissa White

Binding Arbitration Agreements in Insurance Contracts are Void in Washington

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

Arbitration, Arbitration Agreements, Binding Arbitration

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Megan Whitehill

No Silver Lining For Plaintiffs As J.P. Morgan Defeats Silver Market Manipulation Suit

History has shown that large class action cases often follow government investigations the way that the lamb followed Mary to school that day. Sometimes, however, those investigations die and Mary gets lost and brings her…more

Class Action, Fraud, JPMorgan Chase, Market Manipulation

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Ronald Wick

Pennsylvania Court Decertifies Class in Fiduciary Breach Case Against H & R Block

The Pennsylvania Supreme Court last week upheld the decertification of a class of H&R Block customers challenging the tax preparer’s “Rapid Refund” program as deceptive, holding that the existence of a confidential relationship…more

Class Action, Class Certification, Decertify, False Advertising, H&R Block

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John Williams

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

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

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

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Brendan Winslow-Nason

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

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

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

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Kathryn Young

Putting the IP in IPAs

As the Super Bowl approaches, you may be thinking about beer: either deciding what to drink during the big game or wondering if a beer commercial will once again be the best ad. Beer companies are frequently noted for their…more

Infringement, Marketing, Starbucks, Trademarks

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Mike Zabel

Shifting E-Discovery Costs to the Plaintiff in a Potential Class Action: a Pennsylvania Federal Court Tells Plaintiffs' Counsel to "Make the Investment in Discovery"

In what could be a significant opinion for federal class action defendants seeking to limit their e-discovery costs, a court in the Eastern District of Pennsylvania recently held in Boeynaems v. LA Fitness International, LLC,…more

Class Action, Class Certification, Cost-Shifting, Discovery, Electronically Stored Information

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David Zambito

Pennsylvania PUC to Amend Alternative Energy Portfolio Standards Regulations

On February 20, 2014, the Pennsylvania Public Utility Commission (Commission) issued a proposed rulemaking in connection with its implementation of the Alternative Energy Portfolio Standards Act of 2004 (AEPS Act). While the…more

Energy, Energy Policy, Renewable Energy, Utilities Sector

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Victoria Zellers

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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April Zubizarreta

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

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

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

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