News & Analysis as of

Before Asking for Sanctions, Check the Recycle Bin

Erhart v. BofI Holding, Inc., No. 15-cv-02287-BAS (NLS), 2016 WL 5110453 (S.D. Cal. Sept. 21, 2016). The court denied sanctions against a party where the huge majority of the files he deleted were not actually destroyed,...more

D.C. Circuit Rules That the 8(a) Program is Constitutional, But Its Reasoning Raises Questions

On September 9, 2016, the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) issued a split decision holding that § 8(a) of the Small Business Act does not violate the Equal Protection Clause of the...more

When threats made without prejudice are not without prejudice

The appellants’ threats, contained in an email during settlement negotiations “unambiguously exceeded what was permissible in settlement of hard fought commercial litigation”. The email therefore was not protected by without...more

Wyoming Requires Insurer Prejudice for Late Notice

The Wyoming Supreme Court ruled on August 17, 2016 that an insurer “must be prejudiced before being entitled to deny coverage when the insured has failed to give notice ‘as soon as practicable.’” In addressing a certified...more

Party’s Willful Destruction of Data Did Not “Optimize” the Case for Dismissal

Ericksen v. Kaplan Higher Educ., LLC, No. RDB-14-3106, 2016 WL 695789 (D. Md. Feb. 22, 2016). Where a plaintiff “willfully [ran] a computer program that she knew, given her computer expertise, would destroy at least some...more

General Motors: Protection Granted in Section 363 Sale Orders is Only as Good as the Notice Given

In a recent decision by the U.S. Court of Appeals for the Second Circuit in the General Motors case, the court held certain claimants were not afforded procedural due process with respect to the § 363 sale of General Motor...more

Court of Appeal Addresses “Prejudice” Element of Wrongful Foreclosure

If a property owner loses their property through a foreclosure sale initiated by someone who did not validly own the debt, has the property owner automatically suffered enough “prejudice” to pursue a claim for wrongful...more

Sanctions Implemented After Party Fails to Preserve Emails (California)

Mathew Enter. v. Chrysler Grp. LLC, No. 13-cv-04236-BLF, 2016 U.S. Dist. LEXIS 67561 (N.D. Cal. May 23, 2016) - In this price discrimination case, the plaintiff’s internal and external emails concerning its dealership...more

Seeing is Believing: Preserving Your Argument as to Audiovisual Evidence and Demonstrative Aids in the Courtroom

With the advent of courtroom technology, parties are increasingly relying on audiovisual evidence or demonstrative aids to present their case to the trier of fact. Sometimes, however, counsel fail to specifically object to...more

Colorado Supreme Court: Insurers Need Not Show Prejudice to Enforce No-Voluntary-Payments Provision of Insurance Policy

On April 25, 2016, the Colorado Supreme Court overturned a decision by the Colorado Court of Appeals and Colorado District Court in what is believed to be a seminal victory for insurers. In Travelers Prop. Cas. Co. of Am. v....more

Late notice to insurer costs Maryland bank millions

Insurance law generally imposes on a policyholder the duty to give timely notice of claims to its insurance company. Sometimes, because of forgetfulness, ignorance, neglect, or a number of other reasons, companies fail to...more

Underwriters May Have Expertise But That Does Not Make Them “Experts”

In the LBP Holdings v. Allied Nevada Gold Corp. decision released on April 27, 2016, the Ontario Superior Court of Justice refused to allow the underwriters of a secondary public offering (SPO) to be added as defendants to a...more

Reservation of Rights Letters Help Avoid Prejudice in the Third Party Context

When discussing bad faith in the third party context, most of the discussion properly centers on the duty to settle a claim. However, other actions taken by a policyholder and carrier can have an impact. The recent case of...more

Insurance Recovery Law - March 2016

High Times in the Insurance Industry: Colorado Federal Court Considers Coverage for Medical Marijuana Business - Why it matters: With legalized marijuana businesses booming, a new decision from a Colorado federal court...more

District Court Grants Motion for Summary Judgment on Laches Defense Where Defendant Could Not Establish Prejudice from Plaintiff's...

The court explained the facts as follows: The defendant, CrestaTech, was founded by Mihai Murgulescu and George Haber in 2005. Its initial products included a receiver for satellite radio and a television platform. CrestaTech...more

Court Orders Document Production Without Prejudice To Later Sanctions

Stark, C. J. Sanctions motion is considered. Defendant seeks sanctions for plaintiff’s failure to comply with a court order to produce documents....more

Court Emphasizes Proportionality under Amended Rule 26(b)(1) (New York)

Henry v. Morgan’s Hotel Group, 2016 WL 303114 (S.D.N.Y. Jan. 25, 2016) - In this discrimination case, the court held that third-party subpoenas violated the Federal Rules of Civil Procedure, particularly Fed. R. Civ. P....more

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

Review Of Arbitration Awards: Lessons for the Construction Industry from the Tom Brady Case

NFL Mgmt. Council v. NFL Players Ass’n, 2015 U.S. Dist. LEXIS 117662 (S.D.N.Y. Sept. 3, 2015) - “Arbitration has been proven to be an effective way to resolve disputes fairly, privately, promptly and economically.” So...more

“Better Late Than Never” Doesn’t Work for Claims Made Policies

The New Jersey Supreme Court recently held that an insurance company was not required to show it was prejudiced by an insured’s late notice in order to deny coverage under a claims made policy. In Templo Fuente de Vida Corp....more

Genius like Churchill: Improving the E-Discovery Process in 2016 with Technology

Winston Churchill said, “True genius resides in the capacity for evaluation of uncertain and conflicting information.” So we here at Exterro took his advice concerning our recently released 2nd Annual Judges Survey where,...more

Court Finds Sanctions Inappropriate Following Plaintiff’s Failure to Establish Prejudice (Georgia)

West v. Talton, 2015 WL 6675565 (M.D. Ga. Nov. 2, 2015) - In this case, the court granted the defendants’ motion to exclude plaintiff’s use of any argument or evidence of alleged spoliation. The plaintiff discovered that...more

Insurance News, December 2015

Schaeffler Holding, LLP v. United States, No. 14-1965, 2015 WL 6874979 (2d Cir. 2015) - Generally speaking, the “common interest doctrine” is an “exception to the general rule that voluntary disclosure of confidential,...more

Discounted Amount Paid by a Third Party for an Uninsured Plaintiff's Medical Lien Is Not Admissible Without Evidence to Show it...

On October 28, 2015, the California Court of Appeal for the Third District issued a decision, addressing the ongoing issue of admissibility of evidence of economic damages for an uninsured plaintiff's past medical expenses. ...more

Waiving the Right to Appraisal Just Got Easier in Texas

Any Texas lawyer with even a passing interest in insurance law knows that if you want to see sparks fly, just utter the word “appraisal” near a couple of insurance lawyers. If you really want fireworks, make sure one...more

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