Finding Coverage For Online Retail Privacy Class Actions

Recent court rulings interpreting state invasion of privacy and electronic surveillance statutes have caused a surge in the filing of privacy class actions. These recent rulings — including Javier v. Assurance IQ LLC decided by the U.S. Court of Appeals for the Ninth Circuit in 2022[1] and Popa v. Harriet Carter Gifts Inc.[2] decided by […]

Donald Trump Jailed a Critic During His First Term. Does the Supreme Court Care?

It is hard to imagine a more clear-cut violation of the Constitution than jailing an American for expressing his political opinions. But, as a federal judge found, that is what happened to Donald Trump’s attorney-turned-adversary Michael Cohen in the summer of 2020. Americans can agree that the courts must provide an adequate remedy for that […]

Insurance Coverage and the Key Bridge Collapse

In the early morning hours of March 26, 2024, Dali – a cargo ship registered in Singapore — lost power and crashed into a pillar of the Francis Scott Key Bridge in Baltimore, Maryland.  The crash caused the immediate collapse of the bridge and death of six construction workers who were performing work on the bridge at the […]

Why Representation Matters

As a first-generation Nigerian American, my background is somewhat of a departure from that of the typical lawyer. Nigerian parents, however—including many in my community—can be notorious for encouraging their children to pursue what they call the “big four”: a career as a doctor, nurse, lawyer, or engineer. Fortunately for me, I’ve wanted to be […]

How Law Firm Operations Can Adjust To New COVID Realities

The pandemic forever changed law firms. While credible arguments are made about the depth and pace of these changes, doubts about the pandemic’s lasting impact on in-office work are mostly focused on the desirability of modifications to office life, not on the fundamental premise that law firms face substantial change. But there is a new […]

Russia’s Invasion of Ukraine: Maximizing Insurance Coverage to Mitigate Financial Losses

Russia’s invasion of Ukraine has led not only to severe humanitarian consequences, but also to severe economic consequences for Ukrainians, Russians, and others who conduct business within the region.  From the destruction of physical property in Ukraine, to forced abandonment of Ukrainian assets, to trade interruptions stemming from global sanctions on Russia, economic fallout from […]

How Law Firms Can Rethink Offices In A Post-Pandemic World

Commentators agree that the pandemic has changed, is changing, and will change the way law firms operate.[1] But what does the new normal look like? For many law firms, it is clear that hybrid models of remote and in-office work will be necessary to succeed, collaborate and compete for talent in a post-COVID-19 marketplace. Easily […]

Will Kanter Transform Cartel Enforcement?

The hearing on Jonathan Kanter’s nomination to lead the U.S. Department of Justice’s Antitrust Division is scheduled for Oct. 6. When viewed alongside President Joe Biden’s appointment of Lina Khan to chair of the Federal Trade Commission, his selection of professor Tim Wu as special assistant to the president, his formation of the new White […]

Excerpted from Mass Torts in the United States

When faced with an emerging mass tort, companies often first turn to trusted defense counsel for guidance, often utilizing them as the company’s “first line of defense” regarding insurance issues.  In this role, defense counsel typically need to identify potentially responsive insurance policies, ensure that relevant insurers are properly noticed, and, in certain instances, make […]

Excerpted from Mass Torts in the United States

In an emerging mass tort situation, what is the role of the defendant company’s insurance broker? And how should the tort defendant company and its counsel interface with that insurance broker? It is logical that a defendant company would turn to its insurance broker, particularly if the two have a long-standing relationship, and if that […]

The COVID Review

The coronavirus pandemic is an unprecedented event in the life of every person worldwide. Much as everyone remembers where they were when they learned of John F. Kennedy’s assassination, witnessed the attacks of 9/11, watched O.J. Simpson in the White Bronco, or viewed the Challenger explosion, COVID-19 will be a lasting, life-altering memory in the […]

Constitutionality Under the Contracts Clause of Proposed Legislation Enabling Policyholders to Obtain Insurance Coverage for Coronavirus Claims

In addition to its human toll, the coronavirus pandemic has had massive economic effects. It has produced staggering layoffs, millions of claims for unemployment compensation, and unprecedented federal aid. Given these economic effects, it is not surprising that the pandemic has also affected the insurance industry. Lloyd’s of London has stated that it “expects  coronavirus-related losses […]

Insurance Considerations For Schools Harmed By COVID-19

Any parent attempting to balance the challenges of working remotely while managing their children’s distance learning experience can tell you that schools have been among the facets of our society that have been hit hardest by the COVID-19 pandemic. Among other things, colleges and universities across the country had to grapple with shutting down schools […]

Insurer-Friendly COVID-19 Case Law Is No Silver Bullet

As we’ve written in a previous Law360 article, although insurers have trumpeted several recent victories in cases regarding insurance coverage for business interruption caused by the coronavirus pandemic, these cases are by no means a silver bullet. In particular, we pointed to the recent decision in Studio 417 Inc. v. Cincinnati Insurance Co.,[1] in which […]

COVID-19 Claims May Survive Insurers’ Physical Loss Defense

The policyholders in lawsuits by restaurants and others seeking insurance coverage for income they’ve lost from the coronavirus pandemic have largely relied on the business interruption provisions of their policies. As the name implies, these provisions generally obligate insurers to reimburse policyholders for lost income due to an interruption in the policyholders’ businesses. The interruption […]

Firms must take these actions to preserve potential COVID-19 insurance claims

As the COVID-19 pandemic continues to wreak havoc on businesses, conflicting opinions are being offered about the potential applicability of certain insurance policies to COVID-19 losses. However, the COVID-19 landscape is changing daily and insurance coverage for such claims will be the subject of extensive litigation and legislation. Companies should take steps now to preserve […]

Protecting Enrollments in Times of Risk and Crisis

The recent outbreak of the coronavirus, and the alarming rate at which the virus is spreading, is having a global impact. Among the affected entities are American colleges and universities, especially those that enroll large numbers of students from the countries most impacted by the coronavirus outbreak. Recent restrictions announced by the United States on […]

The Insurance Landscape For Phishing Claims Is Shifting

No matter the size of the company, many employees have received an email similar to the one below. At first glance, the sender’s email address appears to be legitimate, but a closer look reveals a misspelling in the domain name — a “0” in the domain name instead of an “o.” To: Employee <employee@domain1.com> From: […]

Overextended warranties: What policyholders should know to protect themselves from overbroad warranty statements

When purchasing directors and officers liability insurance, policyholders are often asked to warranty that they are not aware of any facts that might lead to a claim under the prospective policy. While such warranty statements are common in D&O underwriting, in recent years insurers have increased their efforts to aggressively use the warranties — which […]

Insurance Considerations for Music Festivals

Just weeks before it was set to begin, Woodstock 50 gasped its final breath. But the steady drumbeat of problems that caused organizers to cancel the event will only continue as financiers, artists, and organizers confront the range of legal issues that may now take center stage. Insurance will be key to addressing the Woodstock 50 […]

Delaware Court Ruling Creates New Wrinkle For Defendants Evaluating Appraisal Claims

In 2016, Delaware amended Section 262(h) of the General Corporation Law to permit defendants in appraisal actions to prepay claimants and cut off pre-judgment interest that would otherwise accrue under Delaware law on the fair value payment that occurs at the conclusion of such actions.  Since then, much has been written about the pros and […]

Optimizing Technology Assisted Review

While there are benefits to leveraging past experience, the legal industry also must embrace the dramatic advancements in technology assisted review (“TAR”) applications that can significantly reduce litigation discovery costs, improve document review accuracy, and improve litigation outcomes. As these technologies have evolved, more and more courts are accepting and even encouraging parties to use […]

Tours in Trouble: A Rock Star’s Response to Coverage Denials Based on Physical Injury or Mental Health

Touring is a major source of profits for today’s successful recording artists, and they spend considerable sums on venues and staging to bring music to their fans.  But the list of things that can go wrong before and during a tour is almost endless. That’s why artists, tour companies, and record labels purchase various forms […]

Political Risk Coverage: Options and Opportunities

Political turmoil across the globe has led to unprecedented risks for U.S. companies doing business abroad. A surge in nationalism and increasing influence by far-right political leaders worldwide have left even traditionally-stable nations subject to civil unrest, attacks on democratic institutions, and discrimination against foreign interests. In light of such uncertainty, U.S. companies are increasingly […]

Excess D&O In Del.: A Safe Forum For Exhaustion Disputes

Over the past decade, excess D&O insurers have become increasingly aggressive in denying coverage when a policyholder settles with one or more underlying insurers for less than full policy limits. These denials are generally based on a line of cases holding that exhaustion language found in many excess D&O policies requires payment of full limits […]

Confronting D&O Insurers’ Efforts To Carve Back Subpoena Coverage

Whether a government subpoena constitutes a “claim” is a frequently contested issue between D&O insurers and their policyholders. D&O policies (at least with respect to coverage for private companies and individual insureds at any company) typically define “claim” through multiple subparagraphs: first, a broad and generalized subparagraph that usually references a “written demand for monetary […]

How To Deal With Insurers’ Litigation Management Guidelines

Insurers have broad obligations to defend claims against their policyholders. However, as policyholders quickly learn when facing a claim, insurers often seek to limit these obligations through a wide array of tactics. One common tactic is to insist that attorneys defending a policyholder must comply with guidelines issued by the insurer. These guidelines — often […]

Standard Insurance Policy May Cover Government Subpoena

Responding to a government subpoena presents unique and significant challenges for in-house counsel. Government agencies often wield broad subpoena powers and may demand reams of information with minimal explanation. And many state and federal regulators have recently become more aggressive than ever in issuing and pursuing subpoenas. In this context, the expensive work of responding […]

Is a Sealed Lawsuit a “Claim”? Insurance Coverage Issues for Qui Tam Actions

A critical coverage issue under “claims made” liability insurance policies-which typically cover only claims made against a policyholder and noticed to an insurance carrier during the applicable policy period ( or shortly thereafter)-is determining when a matter becomes a “claim” and when that claim was first “made.” While these may sound like straightforward determinations, they […]

Employing Insurance to Protect You From Wage & Hour Suits in Light of Updated Regulations

In 2014, we reported that wage and hour lawsuits—claims in which employees and companies dispute the amount owed to an employee or class of employees for overtime work—had increased 432 percent over the last two decades. Unfortunately for companies, the trend continues. According to Norton Rose Fulbright’s 2015 benchmarking survey, labor and employment suits were […]

Foregone Conclusion: Insurers Hire Lawyers To Deny Big Claims Before Evaluating Them

Insurers increasingly are using law firms rather than traditional in-house personnel as claim handlers, particularly on major claims by business insureds. Insureds are negatively impacted in two significant ways. First, law firms tend to be very aggressive about denying coverage claims, which is perhaps not surprising given their ethical obligation to be “zealous advocates.” Second, […]

A Comprehensive Look at Potential Drone Related Liability and Insurance Coverage Implications

In May, I posted an article regarding the burgeoning use of commercial drones and potential liability associated with state enacted privacy legislation.  The popularity of that post, coupled with my interest in both drones and insurance, lead me to think about what other potential drone associated liability exists, and how those liabilities relate to insurance […]

No Special Privileges

Insurers increasingly are using law firms rather than traditional in-house personnel as claim handlers, particularly on major claims by business insureds. Insureds are impacted in two significant ways. First, law firms tend to be quite aggressive about denying coverage claims, which is perhaps not surprising given their ethical obligation to be “zealous advocates.” Second, in […]

Don’t Let Pre-Notice Defense Costs Get Away

When a policyholder first learns that they are facing litigation (or any third-party claim), they are immediately confronted with many pressing concerns.  The primary concern is mounting a robust defense against the new claim.  In such circumstances, it is unsurprising that a policyholder sometimes incurs defense costs before they can provide notice of the claim […]

Website Immunity Under the Communications Decency Act

To encourage the growth of the internet, the Communications Decency Act immunizes companies that host content from liability for that content. However, recent caselaw confirms that this immunity is not boundless. Accordingly, counsel for both website operators and those seeking redress for website content should keep an eye on how the caselaw in this area […]

If Robo-Cars Are Perfect, Why Will They Raise Your Insurance Premiums?

The Wall Street Journal recently ran a column centered on a surprising statistic:  Self-driving cars, though perfect, get into more accidents on average than human drivers.  It turns out that self-driving cars have worse accident rates than every category of human driver except young and elderly drivers.  The reason?  Self-driving cars adhere meticulously to the […]

As Drones Hit the Sky, Lawsuits Predicted to Fly

The rise of Unmanned Aerial Vehicles (“UAV”), also known as drones, is well-documented.  In fact, the global market for non-military drones has recently been estimated as a $2.5 billion industry that is growing at approximately 15 to 20 percent annually.  See Clay Dillow, Get Ready for ‘Drone Nation,’ Fortune, Oct. 27, 2014.  Companies large and […]

President Obama Signs Bill Extending Federal Terrorism Reinsurance Program

Born out of the September 11, 2001 terrorist attacks, on November 26, 2002, President George W. Bush signed into law the Terrorism Risk Insurance Act (“TRIA”).  Originally set to expire on December 31, 2005, Congress twice previously extended TRIA, first in December 2005 and again in December 2007.  Despite passage of bipartisan bills in both […]

Have Some Insurers Lost the Forest for the Trees?

The value of confidentiality in settlement negotiations can hardly be disputed. Parties routinely require it, the Federal Rules of Civil Procedure protect it, and it is standard in formal negotiations such as mediations. But in addition to seeking to protect the negotiations themselves and concessions that the parties may have made to reach a resolution, […]

Not By “Any Manner” Of Means: Securing Cyber-Crime Coverage After Zurich v. Sony

Much has been written about the New York Supreme Court’s landmark ruling in Zurich American Insurance Co. v. Sony Corp., Index. No. 651982/2011 (N.Y. Supr. Ct. Feb. 21, 2014), in which a New York trial court denied coverage to Sony Corporation for liabilities stemming from a 2011 cyber-attack on its PlayStation Network. The court held […]

Wage and Hour Claims: A Look Back on The First Half of 2014

As the mid-point of 2014 fades into the rearview mirror, it is clear that wage and hour claims continue to be a hotbed of litigation impacting large and small companies across industries.  In turn the protection those companies can receive, or fail to receive, from their insurers for these claims, remains an important area of […]

$2.9 Million Jury Award For Texas Fracking Claim: Lessons for Energy Company Risk Managers

A jury in Dallas recently awarded $2.9 million to a Texas family in one of the first trials involving allegations that hydraulic fracturing caused nearby residents to suffer health problems and property damage.  Although commentators were quick to point out that there was no evidence that fracking actually caused the plaintiffs any injury, the jury’s […]

There is No Need To Be Alarmed By Alarmist Readings of New York’s Most Recent Ruling On Waiver of Notice Defenses

The New York Court of Appeals recently reversed and remanded a lower court’s ruling that insurers had waived their late notice defense by not raising the defense until years after they first received notice of a pollution remediation claim.  Although some have interpreted this decision as a near-death knell to coverage for pollution remediation claims […]

The False Conception That FCA Claims Are Not Covered

In 2013, the United States Department of Justice recovered $3.8 billion under the False Claims Act (“FCA”), bringing the total amount secured by the Justice Department since 2009 to $17 billion.  Whistleblowers recovered another $345 million last year.  These recoveries came in a wide variety of circumstances and from companies in multiple industries, including pharmaceutical […]

Redbox Covers the Nation with Red Box DVD Rental Units, But its CGL Policy Doesn’t Cover Redbox

Companies facing liability for possible violations of privacy protection statutes are continuing to look to their traditional commercial general liability policies (“CGL”) for coverage.  But, as Redbox recently discovered, coverage for privacy issues remains a case-by-case question.  In its recent CGL coverage dispute, Redbox argued that coverage for an alleged privacy violation was available under […]

Despite Often Presumed Limitations, Policyholders May Have General Liability Coverage for Supply Chain-Related Breaches of Contract and Damages That Result in Recall

The Eighth Circuit recently confirmed that the all-too-common conceptions that breaches of contract and damages that result in recall are never covered by general liability insurance are, in fact, misconceptions. In Netherlands Insurance Co. v. Main Street Ingredients, LLC, 2014 WL 1012793 (8th Cir. Mar. 18, 2014), the policyholder, Main Street Ingredients, LLC (“Main Street”) […]

What Do You Get When You Cross March Madness With Insurance?

A chance to win one billion dollars.  Quicken Loans and Berkshire Hathaway recently announced that they are teaming up to award one billion dollars to be shared by persons who correctly predict the winners of every game in this year’s men’s college basketball tournament.  Quicken is running the competition and paying Berkshire Hathaway an undisclosed […]

Given Proliferating Wage & Hour Claims, Specialized Insurance an Important Consideration for Employers

Given a dramatic increase in both the number of wage and hour lawsuits and the average cost to employers to resolve one—$4.5 million—a little prevention could be worth at least a pound of cure in this area, Kami Quinn and Jason Rubinstein say in this BNA Insights article. They note that filings of collective wage and […]

Insurance by Number

Jurist and law professor Richard Posner recently commented on a common problem among lawyers, namely, that they believe they have a “math block.”  Jackson v. Pollion, 733 F.3d 786, 788 (7th Cir. 2013).  More recently, Judge and Mediator Wayne D. Brazil noted that even sophisticated risk analysts “cannot reliably determine the ‘discounted settlement value’ of […]

Three Tricks That Make Negotiations Work

The Forbes Leadership Forum recently published Gilbert LLP Partner Richard Shore’s article on “Three Tricks That Make Negotiations Work“ – don’t look at the person who is talking, look at the people who are listening; eat, drink, and be merry; and channel your inner Seinfeld. Earlier, Forbes published Richard’s article on “Four Tricks That Make […]

Delaware Decision Makes It Increasingly Difficult for Insurers to Evade Coverage for Dissolved Corporations

Can an injured plaintiff obtain compensation from a dissolved company with unexhausted insurance policies and force the insurer to pay? The Delaware Supreme Court says yes—in certain circumstances. On November 26, 2013, the Delaware Supreme Court issued a ruling with significant implications for insurers, policyholders, and creditors of dissolved corporations when it held that injured […]

Texas Supreme Court Rejects Insurer Expansion of Limited Exclusion for Liability Assumed by Contract, Compelling Insurer to Defend Construction Defect Dispute

In a highly anticipated ruling earlier this month, the Texas Supreme Court rejected Amerisure Insurance Company’s attempt to radically expand the scope of a common exclusion for liability assumed by contract found in many comprehensive general liability insurance policies.  See Ewing Constr. Co., Inc. v. Amerisure Ins. Co., No. 12-0661, 2014 WL 185035 (Tex. Jan. […]

How Insurance Works with Labeling and Duty-to-Warn Lawsuits

Food processors can use existing and new insurance policies in cases involving alleged violations of Prop 65 Labeling and duty-to-warn cases continue to emerge as a key area of risk for food and beverage companies. In light of this trend, food and beverage companies should make certain that they understand the nature of these potential […]

Lessons from a Recent Wage & Hour Ruling

Wage and hour lawsuits continue to rise and it is clear that they are here to stay.  See, e.g., Andrew Ramonas, US Chamber Warns:  Wage-and-Hour Litigation on the Rise, Corporate Counsel (October 23, 2013) (noting that settlements of wage and hour claims totaled $467 million during the past year). In our prior blog entries of we […]

Insurers Cannot Avoid Coverage Obligations Based on a “Technicality”

The Colorado Court of Appeals recently reiterated that insurers cannot escape their coverage obligations based on “technicalit[ies]” that do not prejudice the insurer.  See Stresscon Corp. v. Travelers Prop. Cas. Co. of Am., 2013 COA 131, Nos. 11CA1239 & 11CA1582 (Colo. App. Sept. 12, 2013).  Such “technicalit[ies]” long have included a policyholder’s failure to notify […]

Second Circuit Weighs in on D&O Excess Coverage

A hot topic in the world of directors and officers liability insurance is the application and interpretation of excess coverage.  We discuss Ali v. Federal Insurance Co., a recent Second Circuit decision involving this issue, in the following case note published by the American Bar Association Section of Litigaiton: Insurance Coverage published on September 12, 2013. A recent hot […]

Recent Ruling Highlights Inconsistent Conclusions Regarding Number of Occurrences by Courts Applying the “Cause” Test

It’s a disturbingly common situation.  A youth gets access to the family gun and, accidentally or otherwise, kills or injures one or more people.  The victims (or their survivors) sue the family of the shooter, arguing that family members were negligent in failing to secure the weapon – particularly in cases where there were clear […]

Broken Records – Addressing Insurers’ Improper Attempts to Evade Their Discovery Obligations Based on Their Own Poor Record Keeping Systems

The scope of discovery is a hotly contested issue in many insurance coverage disputes. Discovery is an insured’s opportunity to gather information to support its coverage claims, test an insurer’s positions, and respond to an insurer’s defenses.  Some of the most valuable information an insured can gather during discovery concerns an insurer’s handling of similar […]

West Virginia Reverses Course to Expand Coverage

In the construction industry, small defects in workmanship can result in dramatic losses.  For example, water damage losses arising from an improperly installed bathtub could be many times the cost of installing the tub in the first place.  Some states hold that defective workmanship is not covered by comprehensive general liability (“CGL”) insurance policies, because […]

Déjà Vu All Over Again: Insurers Argue That Below-Limits Settlements With Underlying Insurers Negate Excess Coverage

If an insured faces liability that demonstrably exceeds the limits of underlying insurance, can an excess insurer avoid its coverage obligations because underlying insurers have not actually paid their limits of liability?  Common sense says no.  But insurance industry bloggers, citing the recent decision by the Second Circuit in Ali v. Federal Insurance Co., No. […]

The “Non-Cumulation” Clause: Another Attempt by Insurers to Escape Coverage Obligations

Imagine the following scenario:  your company faces thousands of lawsuits because, years ago, it produced a product that people now say is dangerous.  As the claims quickly burn through your primary liability coverage, you turn to your excess insurance company for help.  They decline coverage.  Puzzled, since you’ve always been timely with your insurance premiums, […]

Recent Decisions Regarding Duty to Warn Could Have Impact on Insurance Coverage

When we hear news of developments in the world of torts that could expand areas of potential liability, we naturally think about whether insurance is likely to respond to that liability. One area that has us thinking these days is the evolving law regarding the “duty to warn.” Recently, some courts have suggested that a […]

A Recent Development in “Wage and Hour” Insurance

In our August 1, 2012 blog entry titled “Insurance Coverage for Wage and Hour Litigation Claims,” we discussed the recent surge in wage and hour litigation and the potential for insurance coverage related to wage and hour lawsuits under employment practices liability (“EPL”) and directors and officers (“D&O”) insurance policies.  Therein, we also discussed the […]

Is Your D&O Policy Bankrupt-Ready? 10 Underwriting Tips To Protect Your Directors and Officers

Protection of the personal assets of board members and c-suit corporate officers through indemnification and insurance is a challenge for financially troubled companies seeking to retain and hire the best people to help navigate the difficult business climate.  SEC and FDIC regulators, among others, have made it clear that they will be increasing scrutiny of […]

Risk-Management Mechanisms Associated With Gluten Allergies

Approximately 1% of the United States population is allergic to gluten, a protein found in wheat, barley, and rye.  For these individuals, gluten consumption may result in vomiting, bloating, anemia, osteoporosis, diabetes, and even intestinal cancer.  As more consumers discover that they have gluten allergies, they have become more mindful of which foods are naturally […]

How to Avoid Turning a Settlement with Your Primary Insurer Into a “Get Out of Jail Free” Card for Your Excess Insurer – The Qualcomm Dilemma

Imagine for a moment that you have two customers, Diane and George. Diane and George each owe you money for products they have purchased.  Each of them raises some concerns about the bill.  Being a wise business owner, you assess your likelihood of collection. Due to some concerns about Diane’s ultimate ability to pay, you […]

Substance Over Form: Insurance Notice Requirements Are Met When An Insurer Has Notice From Any Source

Insurers frequently attempt to avoid their coverage obligations by contending that their insureds provided late notice of claims or occurrences. Most jurisdictions follow the commonsense rule that insurers cannot defeat coverage based on allegedly late notice unless they demonstrate that they suffered significant prejudice as a result — which insurers rarely can do.  See, e.g., […]

Illinois Appeals Court Reaffirms Zurich v. Raymark, Strengthens All Sums Precedent Under Illinois Law

In a significant victory for policyholders, the Illinois Appellate Court reversed a trial court decision that John Crane, Inc. (“Crane”) had no excess coverage for asbestos bodily injury claims.  By so ruling, the appeals court clarified Illinois law on the key issues of exhaustion, trigger and allocation.  John Crane v. Admiral Ins. Co., 2013 IL […]

Court Affirms that Medical Science Supports “Continuous” Asbestos Trigger

In the recent Plant Insulation case, a California court addressed the evolution of the medical science behind the “continuous” asbestos trigger. Our firm recently considered precisely this issue in the article Unsettling the Asbestos Dust, recently published in BNA Insights.  Based on new medical evidence, insurers have argued that injuries under their policies do not […]

Four Non-Traditional Mediation and Negotiation Strategies

If your company or organization finds itself engaged in litigation, chances are that the dispute will be resolved in a conference room rather than a courtroom.  Most lawsuits settle before judgment, and in-house counsel increasingly are turning to mediation — negotiation assisted by a third-party facilitator — to resolve their clients’ disputes.  They hope mediation […]

Sixth Circuit Rules in Favor of Asbestos-Containing Product Manufacturer-Policyholders

Comprehensive general liability policies limit the amount the insurer has to pay for each “occurrence”, which is typically defined as an “accident” or “exposure to [injurious] conditions”.  Insurers and policyholders frequently battle over the number of occurrences that result from asbestos lawsuits and other toxic-tort claims. Miriam Smolen, a partner at Gilbert LLP, recently won […]

Rise in Food Contamination Calls for Proactive Risk Management in 2013

Despite improvements in food safety over the last two decades, 2012 saw no shortage of recalls due to food contamination. For example, one Indiana farm recalled all cantaloupes from its 2012 growing season after the fruit was linked to an outbreak of salmonella that killed three and sickened hundreds. Another salmonella outbreak caused health officials […]

Skirmishes Over Use of Social Media in Litigation Continue to Intensify

Since our prior two posts on the issue, there have been several developments showing that questions about the proper use of social media in litigation continue to abound. These developments demonstrate that practitioners who fail to stay on top of the latest developments in this area – both in terms of the potential appropriate and […]

Ten Things Every Company Needs To Know About Insurance Coverage For Superstorm Sandy

There is a good chance you have coverage.  There is a good chance that affected companies have insurance for some or all of the property damage, loss of profits, and expenses resulting from Superstorm Sandy. Your policies may cover flood damage. Many business property policies cover both flood and wind damage, sometimes subject to special […]

Insurance Coverage for Wage & Hour Claims Arising Out of Superstorm Sandy

Although the full scope of Superstorm Sandy’s financial impact will not be known for some time, there is little debate that Sandy will go down in history as one of the nation’s most costly natural disasters.  In fact, many experts already estimate total losses in excess of fifty billion dollars. In the aftermath of Sandy, […]

Protecting Your Bottom Line from the Cost of National Association of Securities Dealers and FINRA Investigations

When self-regulatory organizations (“SRO”), such as the Financial Industry Regulatory Authority (“FINRA”), commence an investigation or proceeding, member firms are typically concerned with the financial impact that both the defense costs and any ultimate payment obligation will have on their bottom line.  With the United States Second Circuit Court of Appeal’s decision in Fiero v. […]

Recent Ethics Charges Against Attorneys Demonstrate Need for Full Understanding of “Do’s and Don’ts” of Using Social Media As Litigation Tool

As we discussed in an earlier post regarding the use of social media to research potential jurors, the information available through social media can be a potent litigation tool.  Indeed, far from being limited to a juror-research device, practitioners in the insurance realm and beyond are now using social media sites as a potential source […]

Insurance Coverage for Wage and Hour Litigation Claims

There has been a surge in wage and hour litigation recently, and it has been getting a lot of attention.  See, e.g., M. Huisman, Seyfarth Shaw Study Shows Increase in Wage and Hour Labor Suits, Corporate Counselor (July 27, 2012); J. Segal, The New Workplace Revolution: Wage and Hour Lawsuits, CNNMoney (May 29, 2012).  This […]

Four Tricks That Make Mediation Work

In an article just published in the Forbes Leadership Forum, I outline four counterintuitive strategies that harness the strengths of mediation rather than treating it as litigation light: 1.  Let the other side pick the mediator – agreeing to a mediator the other side likes can work in your favor, and save time and money […]

Fracking Risk and the Nationwide Underwriting Guidelines

Nationwide Mutual Insurance Co. made headlines in the ongoing debate over hydraulic fracturing earlier this month, declaring that it won’t cover damage related to the controversial drilling process. Hydraulic fracturing, commonly referred to as “fracking,” is a process in which a mixture of water, sand, and chemicals is injected into a drilling well at high […]

Companies With Formaldehyde Risks Should Consider Insurance Issues Sooner, Not Later

In June 2011, the U.S. Department of Health and Human Services released a report identifying formaldehyde as a “known carcinogen” with possible ties to leukemia. Commentators have speculated that this development may spur a wave of toxic tort litigation. Formaldehyde is used in a wide variety of products, including building materials, adhesives, fabrics and beauty […]

How Far Can Lawyers Go in Researching Jurors on Social Media Sites?

As in any case, a favorable jury can be a key component to success in an insurance coverage trial. Selecting a sympathetic jury, however, is no easy task. Historically, jury selection has been akin to a guessing game, as practitioners have relied largely upon jury questionnaires or brief interviews during voir dire to glean information […]