Defense Strategies

News & Analysis as of

Eleventh Circuit affirms ruling of no coverage based on insured’s failure to cooperate

As a condition to coverage under standard liability policies, the insured is required to cooperate with its insurer. The provision, termed the “cooperation clause,” typically requires the insured to assist with and...more

Bakery's Apple Pie Design is Functional and Inelgible for Trademark Protection, Third Circuit Affirms

The Third Circuit Court of Appeals affirmed a district court’s determination that the key element of a gourmet bakery’s registered pastry design was functional, and therefore ineligible for trademark protection, in Sweet...more

The Guantánamo Trials: No End in Sight - Buchalter Nemer

From May 30 to June 3, 2016, I represented the Pacific Council as an official observer at pre-trial hearings for Khalid Sheikh Mohammed (KSM) and four other alleged masterminds of the World Trade Center and Pentagon attacks...more

Pokemon Go, a Scary Trend for any E-Discovery Practitioner

One word that I never thought would have any cultural relevance ever again, Pokemon. I remember the days when Nintendo was the “it" thing to have and Pokemon was at the forefront of that fad. But that was the 1990s, so when I...more

And The Defense Wins

DRI members Jeff Curran of Gable Gotwals in Oklahoma City and Leighton Oshima of Oshima, Itomura and Fujimoto in Honolulu recently obtained a unanimous defense verdict for a national retailer in Hawaii Circuit Court. Gail...more

Homeowners Associations – Business Judgment Rule

Palm Springs Villa II Homeowners Association, Inc. v. Erna Parth - Court of Appeal, Fourth Appellate District (June 21, 2016) - The “business judgment rule” refers to a judicial policy of deference to the business...more

5 Wishes for Securities Litigation Defense: Greater Director Involvement in Securities Litigation Defense and D&O Insurance

One of my “5 Wishes for Securities Litigation Defense” (April 30, 2016 post) is greater involvement by boards of directors in decisions concerning D&O insurance and the defense of securities litigation, including...more

The Common Interest Doctrine: Lessons on avoiding an inadvertent waiver of the attorney-client privilege

?Most lawyers are familiar with the general rule that a client waives the attorney-client privilege by disclosing the privileged information to third parties. The common interest doctrine, however, provides an exception to...more

5 Wishes for Securities Litigation Defense: Effective Use of the Supreme Court’s Omnicare Decision

In this installment of the D&O Discourse series “5 Wishes for Securities Litigation Defense,” we discuss the third of five changes that would significantly improve securities litigation defense: to make the Supreme Court’s...more

Bad Faith Defense Themes

Anyone who has defended an insurance carrier realizes that the general public, and thus juries, initially believe that companies are looking for ways to deny claim payments. Whether the facts or coverage language justify the...more

What Does the Supreme Court’s Spokeo Decision Mean in the ERISA Litigation Context?

ERISA practitioners should be aware of the extent to which the United States Supreme Court’s decision in Spokeo, Inc. v. Robins may touch on ERISA claims and defenses. In Spokeo, decided 6 to 2 last month, the Supreme Court...more

HIPAA Does Not Preempt Statutory Right to Ex Parte Interviews of Treating Physicians in Tennessee Health Care Liability Actions

A key tool for the defense of medical providers in Tennessee facing malpractice liability has been held to be not preempted by federal law. On June 3, 2016, the Tennessee Court of Appeals, in Caldwell v. Baptist Memorial...more

I am not a Crook: Avoiding the Politics of Data Preservation with a Defensible E-Discovery Process

Of course we've all heard about Hillary's emails, and Trump certainly has email trouble of his own. For a while, Politwoops kept track of mistweets and other online regrets even after they were deleted until Twitter (and...more

CFPB Examinations and Investigations: Defense Strategies and Best Practices

The pursuit of examinations and enforcement actions by the Consumer Financial Protection Bureau (CFPB) has created new challenges for entities that provide consumer financial products and services. Given the CFPB’s broad...more

5 Wishes for Securities Litigation Defense: Greater Insurer Involvement in Defense-Counsel Selection and Strategy

One of my “5 Wishes for Securities Litigation Defense” last month was for greater D&O insurer involvement in securities class action defense. This simple step would have extensive benefits for public companies and their...more

Surviving Settlement Provisions in Joint Defense Agreements

Anyone who watches Survivor or Game of Thrones knows that alliances are critical. And while they may be necessary to endure from one day to the next, alliances are inevitably broken. Co-defendants in antitrust cases...more

Education malpractice and student litigation: Achieving early dismissal

This post is the third in our three-part series on recent legal authority addressing the educational malpractice doctrine. As we noted in prior posts, we are examining this authority through the lens of “lessons learned,” and...more

5 Wishes for Securities Litigation Defense

I am committed to helping shape a system for securities litigation defense that helps directors and officers get through securities litigation safely and efficiently, without losing their serenity or dignity, or facing any...more

Canada/US Policy Scan 2016

Earlier this year, US President Barack Obama welcomed Canadian Prime Minister Justin Trudeau and his delegation, the first official visit by a Canadian PM to the US in nearly two decades. By mid-summer of this year, the two...more

LARPing with Patent Trolls

Live Action Role Playing (LARP or LARPing) usually involves Renaissance Festival worthy costumes, foam medieval weapons, and an intense dedication to not breaking character.  I can’t say I’ve ever had the privilege of...more

Why I’m So Passionate about Omnicare

On March 24, 2015, the U.S. Supreme Court issued its opinion in Omnicare, Inc. v. Laborers Dist. Council Const. Industry Pension Fund, 135 S. Ct. 1318 (2015). My partner Claire Davis and I are publishing a forthcoming...more

Attacking Class Action Allegations On The Pleadings Can Be A Successful Strategy

Not all class action allegations are created equal. Certain types of claims are more likely to be amenable to class treatment – generally those involving uniform policies that result in uniform injuries; other claims seem...more

Delaware Court of Chancery Increases Scrutiny on Disclosure-Only M&A Class Action Settlements

As recently as 2014, nearly 95% of all mergers of public companies valued at $100 million or more triggered stockholder class action litigation. Historically, a large number of merger-related stockholder litigation settled...more

Defending Against Insider Trading Claims

No corporate legal issue captures public attention quite like insider trading. These cases epitomize the worst stereotypes of Wall Street and often involve high-profile individuals. Government prosecutors and securities...more

The Supreme Court’s Recent Confirmation that Yearsley Derivative Sovereign Immunity Extends Beyond Public Works Projects

On January 20, 2016, the Supreme Court clarified the scope of “Yearsley immunity” – a form of derivative sovereign immunity available to qualifying government contractors – in its decision in Campbell-Ewald Co. v. Gomez....more

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