Defense Strategies

News & Analysis as of

Texas Insurers: Don’t Forget ‘Excessive Demand Doctrine’

With the onslaught of recent hail and other weather related litigation, insurance carriers routinely see excessive and unreasonable settlement demands in statutorily required presuit notice letters. The “excessive demand...more

Supreme Court Gives Employers a New, But Not Very Sharp, Tool for their Defense Arsenal Against the EEOC

Earlier this week, the U.S. Supreme Court issued a much anticipated ruling on the question of whether courts have the authority to review the adequacy of the Equal Employment Opportunity Commission’s (EEOC) pre-lawsuit...more

Texas Rule of Civil Procedure 91a Prevalence and Practicality Two Years Later

For many years, a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) has provided an effective tool for dismissing baseless claims early in the litigation process. The Texas Rules of Civil Procedure did...more

April 2015: Product Liability Litigation Update

Defenses to Public Nuisance Claims in Pharmaceutical Products Litigation. For many years, plaintiffs have asserted the tort of nuisance to address purported harms from all sorts of products—including firearms, lead paint,...more

The Inadvertent Error Defense to Violations of the Equal Credit Opportunity Act

The Equal Credit Opportunity Act (the “ECOA”) prohibits creditors from discriminating against credit applicants based on race, religion, sex, national origin, marital status, and age among other things. Penalties for...more

ADA “Direct Threat” Defense Just Got a Little Easier

The rights and protections afforded to those with disabilities by the Americans with Disabilities Act (“ADA”) are not without limitations. Accommodations for disabled employees must be reasonable, and the employee must still...more

BakerHostetler Partner Paul Karlsgodt Discusses Privacy Class Actions [Video]

Paul Karlsgodt, Leader of BakerHostetler's Class Action Defense team, talks about class actions privacy and litigation issues....more

Strategies for Pharma Companies Facing Bass-Like Challenges in IPR Proceedings

Kyle Bass is at it again. On April 20, 2015, Bass filed his sixth inter partes review (IPR) Petition against a patent covering Pharmacyclics, Inc.’s cancer drug, IMBRUVICA®. Then, on April 22, 2015, Bass filed his seventh IPR...more

Third Circuit Clarifies Its Ascertainability Standard

Ascertainability is an implied requirement for class certification, not expressly addressed in Fed. R. Civ. P. 23. While there are different formulations of the requirement, in essence it requires that there be an adequate...more

The TCPA: Deep Dive: Details, Class Actions, Regulations, and Defense Strategies [Video]

In Part One of our complimentary, two-part webinar on the TCPA, we covered the basics. Join us for the second hour-long segment, as we get into the weeds of the TCPA. Part Two will cover: Exemptions/Details · What is an...more

Using the Economic Loss Rule to Your Client's Benefit

All lawyers can benefit from having a toolbox of general legal knowledge with which to frame a case to their client's advantage. For business attorneys the economic loss rule is a particularly useful tool. At its...more

Courts Focus on the Work Product Doctrine's "Motivation" Element

The work product doctrine protection rests on three elements: (1) litigation; (2) anticipation; (3) motivation. In normal civil or criminal litigation, the first element presents an easy analysis....more

The Learned Intermediary Defense Advances in Nevada

The learned intermediary doctrine can be a legal defense against product liability claims. It is most commonly applied in cases involving drugs and medical devices. A learned intermediary is a medical expert, such as a...more

Ethical Issues For White Collar Defense And Investigations Lawyers - Part 1 of 3: Joint Defense Agreements

Recent corporate scandals have made effective and honest corporate governance the chief priority for every company. Proactive and incisive white collar defense counsel in this area is a must. Reacting swiftly to serious...more

November 2014: Class Action Litigation Update

Class Action Defense Menu: Statutes of Limitations Served Two Ways. The statute of limitations is an underutilized but potentially potent defense in many consumer class actions. The defense can be raised two ways. First, as...more

Successful Motions to Dismiss Securities Class Actions, A Review of What Worked in 2014

Motions to dismiss have been called “the main event” in securities class actions. They are filed in over 90% of securities class actions and they result in dismissal close to 50% of the time they are filed. In contrast, out...more

A Pleading Malfunction Dooms Malfunction Theory

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

Five things patent trolls don’t want you to know about litigation

Patent trolls are not all the same. They have different tactics, different areas of expertise, and they can behave in very different ways in litigation. But they all want money. And they all do what they can to get as much of...more

Accentuate the Positive: Defending Antitrust Litigation By Demonstrating the Procompetitive Character of the Challenged Conduct

For many defendants in antitrust litigation, the procompetitive nature of their alleged conduct is a topic near the bottom of the list of subjects they want to address. They would prefer to first exhaust all of the...more

“Mend the Hold”: A Nineteenth-Century Wrestling Doctrine Keeps its Grip on Coverage Litigation in the WWE Era

The issue confronting an Illinois appellate court in BNSF Railway Company v. Probuild North LLC, No. 1-12-3648 (Ill. App. Ct. June 11, 2014), was not uncommon. The plaintiff sought coverage from its insurer under a...more

3 Strategies for Defending Low Value Debt Collection Lawsuits

Getting sued – no matter how large or small the amount being sued for – can be a very stressful situation. Surprisingly, some debt buyers like Midland Funding and Portfolio Recovery Associates will file lawsuits to recover...more

An Overview of the 2014 Class Action Survey [Video]

To read the full 2014 Class Action Survey report, please visit ClassActionSurvey.com. Fifty-two percent of major companies are currently engaged in class action litigation. This percentage has remained fairly consistent...more

California Court of Appeal Holds Intermediary’s Sophistication Not Sufficient, as a Matter of Law, to Avoid Supplier’s Liability...

On October 29, 2013, the California Court of Appeal affirmed as proper a trial court’s refusal to give defendant John Crane, Inc.’s (Crane’s) requested jury instruction on the “sophisticated user” defense. In Anne Pfeifer, et...more

Limited Defenses Available Against FDIC As Receiver

As of August 2013, since the fallout from the recent financial crisis, the FDIC as receiver for failed banks has brought suit against former directors and officers of 76 failed institutions. These lawsuits are based on...more

Insurance Defense Lawyers Aren’t Devils

I’m tired of hearing insurance defense lawyers described as devils: unethical, uncaring, evil, dedicated to destruction of valid claims and to refusing appropriate compensation for real injuries. I’ve been representing...more

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