July 24, 2018
Andrew Kay and Randy Seybold discuss the California Superior Court decision that the California controller had improperly promulgated two regulations imposing requirements on life insurers under the UPL.
July 13, 2018
John Sullivan, a member in the firm's Commercial Litigation Practice, authored, "MDL Court in the Testosterone Replacement Therapy Litigation Throws Out Another Large Jury Verdict," for the Drug & Device Law Blog.
May 09, 2018
Brett Taylor and Amy Alderfer, members of the firm's Commercial Litigation Department, co-authored, "Pay Attention To The Law And The Science Of Cannabidiol," for Law360.
May 07, 2018
Stephen Miller, vice chair of the firm's Criminal Defense & Internal Investigations Practice Group and Isaac Binkovitz, an associate in the firm's Commercial Litigation Department, co-authored, "US Supreme Court Considers Appropriate Deference to Foreign Law," for The Legal Intelligencer.
March 28, 2018
Thomas Wilkinson, a member of Cozen O'Connor's Commercial Litigation Department, co-authored two chapters in the book, The Supreme Court of Pennsylvania: Life and Law in the Commonwealth 1684-2017.
February 16, 2018
Christopher Kende discusses the New York State Court of Appeals ruling in Forman v. Henkin and how this decision is good for defendants.
February 13, 2018
Jeffrey B. Greenspan, a member of Cozen O'Connor's Commercial Litigation Department, published, "Seventh Circuit Reminds Litigants that Doctrine of Forum Non Conveniens Still 'Has Continuing Application in Federal Courts'.”
February 07, 2018
Stephen Miller and Rachel Collins Clarke, members of Cozen O'Connor's Criminal Defense & Internal Investigations Practice, co-authored in The Legal Intelligencer, “Supreme Court Tackles Fourth Amendment Case Involving Cellphone Privacy."
January 26, 2018
Randy Seybold and Biz Van Gelder discuss the DOJs January 10 and January 25 memos and what they mean for FCA qui tam defendants.
January 11, 2018
Stephen Miller, vice chair of Cozen O'Connor's Criminal Defense & Internal Investigations Practice, and Leigh Ann Benson, associate in the firm's Commercial Litigation Department, co-authored, in The Legal Intelligencer "Masterpiece Cakeshop v. CCR: A Difficult Balance for Justices."
May 31, 2017
Joseph Dever co-authored the chapter on “Market Manipulation Investigations” (Chapter 14) in Practising Law Institute's “SEC Compliance and Enforcement Answer Book 2017.”
May 04, 2017
Stephen Miller, vice chair of Cozen O'Connor's Criminal Defense & Internal Investigations practice, and William Lesser, of the Commercial Litigation department, discuss internet restrictions on registered sex offenders in The Legal Intelligencer.
April 19, 2017
Isaac Binkovitz, of Cozen O'Connor's Commercial Litigation department, wrote an article for Lexology discussing a lawyer that may be sued under New York's Attorney deceit statue for filing allegedly containing false statements.
April 04, 2017
Stephen Miller and Matthew Coin, both of Cozen O'Connor's Criminal Defense & Internal Investigations practice, discuss the U.S. Supreme Court in The Legal Intelligencer.
April 03, 2017
Thomas Wilkinson and Isaac Binkovitz of Cozen O'Connor's Commercial Litigation department, discuss mental health treatment communications and Farrell v. Regola, in the Pennsylvania Bar Associations Civil Litigation Update.
March 28, 2017
Aaron Krauss, a member of Cozen O'Connor's Commercial Litigation department, discusses what to do when doctors can't heal themselves in the ABA Health Law Litigation Section.
March 17, 2017
Michelle Lee Flores, a member of Cozen O'Connor's Labor & Employment department, and Brett Taylor, of Cozen O'Connor's Commercial Litigation department, discuss the single-user restroom requirement.
March 03, 2017
Jeff Gilbert of the Commercial Litigation Department discusses the history of the Miami-Date Courthouse, now in despair, and the plans for the new courthouse.
February 23, 2017
Jennifer McHugh and Robert Fiebach, attorneys in the firm's Commercial Litigation Department, a chapter titled “Issue and Claim Preclusion” in the prestigious legal series Business and Commercial Litigation in Federal Courts, Fourth Edition.
February 07, 2017
Amy Alderfer, a member of Cozen O'Connor's Commercial Litigation department, discusses tips for creating enforceable settlements on DRI.
January 11, 2017
Stephen A. Miller and Kathryn Young Galla discuss a case in which the U.S. Supreme Court is grappling with the issue of racial bias in the decision-making of a criminal trial jury.
January 01, 2017
Kristin Keehan, an associate in Cozen O'Connor's Commercial Litigation department, discusses concealed carry on college campuses in Defendant.
January 01, 2017
John McDonough, vice chair of Cozen O'Connor's Commercial Litigation department, writes his third installment to 'The Vanishing Jury Trial' in Defendant.
November 09, 2016
Stephen Miller, a member of Cozen O'Connor's Criminal Defense and Internal Investigations practice, and Nicholas Karwacki, of Cozen O'Connor's Commercial Litigation department, discuss insider trading in The Legal Intelligencer.
November 02, 2016
Jeffrey Greenspan, a member of Cozen O'Connor's Commercial Litigation department, discusses wrongful-death claims in the Chicago Daily Law Bulletin.
October 31, 2016
Tom Wilkinson and Leigh Ann Benson, both members of Cozen O'Connor's Commercial Litigation department, discuss this case in the Pennsylvania Bar Associations Civil Litigation Update.
October 31, 2016
Jonathan Grossman, Thomas Ingalls and Michael de Leeuw, members of Cozen O'Connor's Commercial Litigation department discuss the recent Caledonia matter in the New York Law Journal.
October 18, 2016
Tom Wilkinson, a member of Cozen O'Connor's Commercial Litigation department, discusses Pennsylvania's new medical marijuana law in the Pennsylvania Bar Association.
October 14, 2016
Isaac Binkovitz, an associate in Cozen O'Connor's Commercial Litigation department, discusses the recent California decision in The Voice of the Defense Bar.
September 09, 2016
Nicholas Karwacki, of Cozen O'Connor's Commercial Litigation department, discusses juror social media accounts on Lexology.
August 03, 2016
Isaac Binkovitz, of Cozen O'Connor's Commercial Litigation department, discusses false online client reviews on Lexology.
July 17, 2016
Tom Wilkinson and Matthew Glazer, both members of Cozen O'Connor's Commercial Litigation department, discuss photographing police in public places in the Villanova Law Review.
July 14, 2016
Jeffrey Greenspan, a member of Cozen O'Connor's Commercial Litigation department, discusses the appellate court FOIA decision in the Chicago Daily Law Bulletin.
July 12, 2016
Kendall Kelly Hayden and Karl A. Schulz discuss a Texas Supreme Court decision that handed property owners a major victory on an issue of increasing importance as West Nile Virus and Zika Virus spread around the country.
May 13, 2016
Michael de Leeuw and Matthew Elkin, both of Cozen O'Connor's Commercial Litigation department, discuss the business side of Justice Scalia in Corporate Counsel.
April 01, 2016
John McDonough, vice chair of Cozen O'Connor's Commercial Litigation department, discusses the second part of his 'Vanishing Jury Trial' series in Defendant.
March 24, 2016
Jeff Greenspan, a member of Cozen O'Connor's Commercial Litigation Department, discusses a recent decision from the Illinois Supreme Court.
March 21, 2016
Hayes Hunt and Thomas Leonard, of Cozen O'Connor's Commercial Litigation department, discuss Obama's recent trip to Cuba and what that means for Cuban-Americans who are bringing lawsuits against the Castro regime.
March 20, 2016
Shelby Riney, counsel in the firm's Commercial Litigation Department, authored Chapter 6: Post Approval Commitments in "FDA Basics for the Drug and Medical Device Lawyer."
March 10, 2016
Stephen Miller and Nicholas Karwacki discuss the scope of the First Amendment protection of public employees in the Legal Intelligencer.
March 07, 2016
Angelo Savino and Nicholas Bamman discuss a federal court decision in Louisiana providing a rare analysis of the interplay between a duty to defend in a D&O policy and the allocation clause in that same policy.
March 03, 2016
Jillian Thornton Flax and Abby Sacunas, both members of Cozen O'Connor's Products Liability practice, discuss the FDA's new guidance on cybersecurity risks for medical devices in Corporate Counsel.
February 25, 2016
Thomas Wilkinson and Joshua Ruby, both members of Cozen O'Connor's Commercial Litigation department, discuss wiretap act prosecutions of defense attorneys.
February 22, 2016
Amy Alderfer and Jillian Thornton Flax, both members of Cozen O'Connor's Products Liability practice, discuss a road map for a successful product inspection in Law360.
January 30, 2016
Stephen Miller and Stephen Kempa co-wrote this article discussing the extraterritorial application of U.S. law in the contect of RICO, which U.S. Supreme Court will return to this term.
January 14, 2016
Jeffrey Greenspan, a member of Cozen O'Connor's Commercial Litigation department, discusses the deadline clock for spoliation.
January 11, 2016
Stephen Miller, vice chair of the firm's Criminal Defense & Internal Investigations Practice Group, and Pamela Dorian, an associate in the firm's Commercial Litigation Practice, co-authored, "US Supreme Court Addresses 'Attenuating' Circumstances."
January 01, 2016
John McDonough, vice chair of Cozen O'Connor's Commercial Litigation department, discusses the vanishing jury trial in Defendant.
November 20, 2015
Stephen Miller and Nicholas Karwacki discuss the US Supreme Court revisiting class-action suits in 'Campbell Ewald'
November 12, 2015
Stephen Miller and Leigh Ann Benson discuss Spokeo v. Robins, an appeal from the U.S. Court of Appeals for the Ninth Circuit raising the question whether Congress may create an “injury-in-fact” simply from the violation of a federal statute.
November 04, 2015
Abby Sacunas discusses the Eastern District Court of Pennsylvania’s decision to dismiss plaintiff’s negligence and §402(B) strict liability claims on summary judgment in Morello v. Kenco Toyota Lift.
November 01, 2015
Ryan Blaney and Jason Bonk review the need for proper cybersecurity measures, discuss an ongoing probe of two MLB franchises regarding a possible inter-team hacking scandal, and put forward a valuable list of items that every actor in the sports world should consider in order to mitigate the risk of privacy/cyber breaches.
October 29, 2015
Isaac Binkovitz, an associate in Cozen O’Connor’s Commercial Litigation Department, analyzes potential conflicts between Quebec’s French language protection laws and Canada’s international obligations, including under international intellectual property, human rights, and trade agreements
October 26, 2015
John Sullivan discusses the Louisiana Supreme Court case Hoffman v. 21st Century North Am. Ins. Co., in which the plaintiff attempted to expand the collateral source rule to allow recovery of medical costs that were never actually billed.
October 19, 2015
John Sullivan discusses In re Mentor Corp. ObTape Transobturator Sling Prods. Liability Litigation, in which the court relied solely on a review conducted by plaintiff’s experts of sample ObTape devices (other than the one implanted in plaintiff) when denying the manufacturer’s motion for summary judgment.
October 15, 2015
Michael Klein discusses the Commonwealth Court’s recent decision in Valley Forge Sewer Authority v. Hipwell et all. involving a municipal authority’s efforts to collect rates for several years of services that had been rendered, but not previously billed by the authority due to inaccurate information.
October 12, 2015
John Sullivan discusses Carlton v. Boston Scientific Corp., in which the court granted Boston Scientific summary judgment.
October 08, 2015
Stephen Miller discusses some of the cases that will occupy the Supreme Court justices’ attention for the next few months.
September 28, 2015
John Sullivan discusses Boston Scientific Pelvic Repair System Products Liability Litigation and how the 510(k) clearance of a medical device is not only insufficient to support preemption, but it’s not probative enough to be discussed at trial.
September 22, 2015
John Sullivan discusses the recent Cymbalta litigation in which the plaintiffs tried and failed to create an MDL.
September 15, 2015
Florida Governor Rick Scott signed HB 87 into law, codified at ch. 2015-165, which amends the Florida’s Construction Defect Statute. These amendments will go into effect on October 1, 2015
September 14, 2015
John Sullivan discusses Pacira Pharmaceuticals’ recent First Amendment challenge on their non-opioid pain drug, EXPAREL, in the wake of Amarin’s preliminary injunction win.
September 14, 2015
Tamar Wise and Stephen Kempa discuss recent updates on third-party waivers to attorney-client privilege and two narrow exceptions to that rule.
August 17, 2015
John Sullivan discusses Amarin’s successful motion for a preliminary injunction in its First Amendment challenge to the FDA’s regulation of off-label marketing and discusses what this means for the FDA.
August 12, 2015
Shelby Riney, of Cozen O'Connor's Commercial Litigation department, published, "Strategies for in-house counsel to maximize coordination of multidisciplinary products liability litigation."
August 10, 2015
John Sullivan discusses Becker v. Smith & Nephew, a hip implant case pending in federal court in New Jersey.
August 05, 2015
Jason Bonk and Calli Jo Padilla discuss the importance of implementing, enforcing and training on policies reflecting the best practices to protect companies against the increasing threat of cyberhacking and privacy breaches.
August 03, 2015
Barry Boss, Stephen Miller, and Rebecca Brodey discuss the U.S. Department of Justice Antitrust Division’s latest investigation – airline capacity restrictions.
July 22, 2015
Denise Bense authored a section on “Medical Device Approvals” in DRI’s recently published “FDA Basics for the Drug and Medical Device Lawyer.”
July 13, 2015
John Sullivan discusses the second Risperdal trial, Cirba v. Janssen Pharmaceuticals, Inc., in which the trial judge denied the plaintiff’s post-trial motion for a new trial.
July 06, 2015
John Sullivan discusses the completed briefing on Amarin's motion for preliminary injunction and the courts preparation to hear oral arguments from the FDA and Amarin.
July 02, 2015
Leigh Ann Benson discusses the need for food and beverage manufacturers to be aware of FDA action, which typically reflects consumers’ interests, that has a direct relationship to class action litigation.
July 01, 2015
Joseph Ziemianski, Andrea Cortland, and other industry professionals, co-wrote this article in The Federation of Defense and Corporate Counsel Quarterly which discusses litigation related to concussions in sports.
June 30, 2015
David Walton and Leigh Ann Benson discuss the importance of employers preventing cybersecurity incidents and what the outcome of the Supreme Court case Spokeo v. Robins would mean for class actions brought by their employees.
June 22, 2015
John Sullivan discusses the ongoing First Amendment case between Amarin Pharma, Inc. and the FDA.
June 15, 2015
John Sullivan discusses Otis-Wisher v. Medtronic Inc., in which the Second Circuit offered its thoughts on the viability of parallel violation claims based on allegedly misleading off-label promotion.
June 10, 2015
Stephen Miller and Arthur Fritzinger discuss Obergefell v. Hodges, which the Supreme Court will decide later this month.
June 08, 2015
John Sullivan discusses Mayfield v. London Women's Care, PLLC, in which a patient, who had revision surgery and other complications, sued the out-of-state manufacturers and named her local doctor and his clinic as malpractice defendants.
June 01, 2015
John Sullivan discusses the ruling in Dwyer v. Boston Scientific Corp., in which a man died from head injuries suffered during a fall after the failure of his implanted defibrillator.
May 18, 2015
John Sullivan discusses City of Chicago v. Purdue Pharma L.P., which deals with an effort by the city of Chicago to recover payments it made to drug companies on opioid prescriptions for city employees (and retirees) covered by HMO, PPO and worker's compensation plans.
May 14, 2015
Stephen Miller and Diana Lin discuss the Supreme Court’s examination of a facial Fourth Amendment challenge to Los Angeles Municipal Code Section 41.49, which authorized law enforcement officers to routinely inspect hotel guest registers without exigent circumstances, probable cause, or judicial supervision.
May 11, 2015
John Sullivan discusses Amarin Pharma, Inc. v. FDA, in which Amarin seeks a declaration that the FDA's off-label regulations, as applied by the FDA, violate the First Amendment and the Due Process clause of the Fifth Amendment.
May 05, 2015
Matthew Glazer and Arthur Fritzinger explain that even the most routine corporate investigation has the potential to develop into a multidefendant case, and it may be important for parties to coordinate their strategies from the beginning through joint-defense agreements.
May 01, 2015
Jonathan Grossman and Thomas Ingalls discuss the U.S. Supreme Court’s decision to uphold a lower court decision that will allow a greater role for state courts in regulating the energy sector.
April 27, 2015
John Sullivan discusses Levitt v. Merck Sharp & Dohme Corp., in which the Vioxx MDL court denied Merck's motion for summary judgment, instead ordering that discovery be reopened.
April 21, 2015
The Supreme Court today allowed the states a greater role in regulating the energy sector.
April 20, 2015
John Sullivan discusses Cole v. Medtronic, Inc., in which the plaintiff asked the court to remand the case back to state court because a second defendant, a hospital, was a citizen of the forum state, thus triggering the forum-defendant rule and blocking removal.
April 15, 2015
Tamar Wise, a member of the Commercial Litigation Department, discusses the scope of attorney-client privilege and work product doctrine in the in-house context.
April 13, 2015
John Sullivan discusses Whitener v. Pliva, in which the claim states that the manufacturer didn't warn about risks of the drug, in this instance, off-label risks.
April 10, 2015
Thomas Wilkinson and Alexa Sebia explain how aggressive advocacy outside the confines of the courthouse may trigger potential defamation exposure for lawyers and their clients, even for lawyers who simply circulate filed pleadings to reporters or accurately summarize them via social media.
April 09, 2015
In an article titled “US Supreme Court Considers Religious Accommodations,” Stephen Miller, a member of Cozen O’Connor’s Commercial Litigation Department, discusses an important case regarding employers' obligations to accommodate employees' religious practices under Title VII of the Civil Rights Act of 1964. Must the employer have actual knowledge that the applicant or employee requires a religious accommodation, or does a hunch suffice? And must that knowledge come from direct, explicit notice from the applicant or employee, or can it come from some other source? The justices will try to answer these questions in Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores.
April 01, 2015
In an article titled “A Ticket to Sue – Pennsylvania’s Registration Requirement for Foreign Business Entities,” Thomas Wilkinson, a member of Cozen O’Connor’s Commercial Litigation Department, and Thomas O’Rourke, an associate in the Commercial Litigation Department, discuss the new registration regime for foreign businesses that will come into effect on July 1, 2015. Under the new requirements, foreign businesses that are “doing business” in Pennsylvania without proper authorization will still be without legal capacity to sue in Pennsylvania. It will remain critical, therefore, for each foreign business to ensure that it is properly registered, if necessary, before seeking recovery in Pennsylvania.
March 30, 2015
John Sullivan discusses Yotam v. Takeda Pharmaceuticals North America, Inc. and the uneven ground of ex parte interviews of treating doctors, an area in which plaintiffs' counsel too often seem to be handed the higher ground.
March 26, 2015
Menachem Kastner and Ally Hack, members of Cozen O’Connor’s Commercial Litigation Department, authored an article for the New York Law Journal titled “Incurable Defaults in Commercial Leases: Can You Un-Ring the Bell?” They identify the various types of commercial lease defaults that courts may find to be “incurable” as a matter of law, followed by a focus on what has been the most controversial of these defaults – the unauthorized assignment of its lease. Menachem and Ally also provide a practical tip on terminating commercial leases for unauthorized assignments, where the law and the usual lease default provisions may seem contradictory.
March 23, 2015
John Sullivan discusses the latest decision in Zogenix, Inc. v. Baker, in which the Commonwealth of Massachusetts has tried to regulate Zohydro ER, an extended release hydrocodone drug product that was approved by the FDA in 2013.
March 16, 2015
John Sullivan discusses collateral litigation and companies who find themselves in difficult court battles to protect confidential, business-sensitive information from public disclosure.
March 12, 2015
In an article titled “US Supreme Court Confronts Testimony in Child Abuse Cases,” Stephen Miller, a member of Cozen O’Connor’s Commercial Litigation Department, and Kathryn Young, an associate in the Commercial Litigation Department, discuss how child abuse cases are difficult to prosecute because there are often few witnesses and those witnesses are often very young. The question whether those young witnesses must testify about their abuse in court, therefore, has great practical and constitutional importance.
March 09, 2015
John Sullivan discusses Lewis v. Johnson & Johnson, in which the defendant calmly and effectively pressed their legal and factual arguments, won a partial victory before trial, continued to press its position on the law and facts at trial until it won a direct verdict, and successfully had it all upheld on appeal.
March 04, 2015
In an article titled “Courts Clarify Scope of Privilege for Internal Corporate Investigations,” Thomas Wilkinson and Tamar Wise, members of Cozen O’Connor’s Commercial Litigation Department, discuss a wave of recent cases which have clarified the scope of the attorney-client and work-product privileges in the context of internal corporate investigations.
March 02, 2015
John Sullivan discusses McDowell v. Eli Lilly, in which plaintiff motioned for reconsideration, only to have the judge state the product's label contained sufficient warning and upheld judgment for the defendant.
February 26, 2015
In an article titled "Court Rejects Attorney-Client Privilege in Employment Discrimination Case,’’ Thomas Wilkinson, a member of Cozen O’Connor’s Commercial Litigation Department, and Alexa Sebia, an associate in the Commercial Litigation Department, discuss a Pennsylvania federal judge’s rejection of a company’s claim to attorney-client privilege as an obstacle to pursuit of a sex discrimination suit brought by a lawyer and former employee.
February 23, 2015
In an article titled '''Irreparable Harm' Is a Tough Hurdle to Clear,'' Michael de Leeuw and John Sullivan, members of Cozen O'Connor's Commercial Litigation Department, examine the current state of preliminary injunction jurisprudence in New York courts (with liberal reference to their federal counterparts), in particular the treatment of the “irreparable harm” branch of the test, and explore whether there are any better guiding standards that might make preliminary injunction practice more predictable.
February 12, 2015
In an article titled ''Justices Eye Hierarchy of Protected Speech in Street Sign Case,'' Stephen Miller, a member of Cozen O’Connor’s Commercial Litigation Department, and Leigh Ann Benson, an associate in the Commercial Litigation Department, discuss Reed v. Town of Gilbert, in which the U.S. Supreme Court has an opportunity to overhaul its First Amendment jurisprudence. The Town of Gilbert's sign ordinance was challenged by Good News Community Church and its pastor, Clyde Reed. Good News is a relatively small congregation in Gilbert that meets weekly for fellowship and worship. The church views its signs as ideological while the town considers them to be directional – a distinction that has significant practical effects. Although it seems likely Gilbert's ordinance will be struck down, the more interesting question is whether five Justices will unite around a far-reaching opinion that revamps the court's First Amendment jurisprudence.
February 10, 2015
In an article titled ''Lacrosse Equipment Manufacturers Facing Challenges,'' James Heller, chair of Cozen O'Connor's Products Liability Practice Group, and Christopher Passavia, an associate in the Commercial Litigation Department, discuss the National Operating Committee on Standards for Athletic Equipment (NOCSAE) and their abrupt announcement in November 2014 that it had voided the manufacturer's certification of two of the nation's most popular lacrosse helmets (Cascade's R model and Warrior's Regulator model). The announcement quickly led to the filing of two putative class action consumer lawsuits against Cascade, one of which is pending in the U.S. District Court for the Eastern District of Pennsylvania, and a lawsuit by NOCSAE against Warrior in federal court in Missouri.
January 29, 2015
In an article titled ''The PA Supreme Court makes decisive eminent domain ruling,'' Michael Klein, co-chair of Cozen O’Connor’s Energy Industry Team, discusses Pennsylvania’s Property Rights Protection Act and how investor-owned water utilities are not regulated under the Act, but remain subject to the Eminent Domain Code and applicable case law that provide restrictions on their exercise of the right of eminent domain.
January 28, 2015
Shelby Riney, of the firm's Commercial Litigation Department, authored, "District Court Denies Takeda's Motion for a New Trial," for the ABA Section of Litigation, Products Liability, News & Developments.
January 15, 2015
In an article titled “U.S. Supreme Court Analyzes Pregnancy Discrimination,” Stephen Miller, a member of Cozen O’Connor’s Commercial Litigation Department, and Jessica Hurst, an associate in the Labor & Employment Department, discuss Young v. United Parcel Services, in which the U.S. Supreme Court will decide the appropriate standard to apply in determining whether an employer has violated the Pregnancy Discrimination Act. More specifically, the court will determine under what circumstances pregnant employees are entitled to work accommodations that are provided to their non-pregnant coworkers.
December 29, 2014
In an article titled “Social Media Posts Take Center Stage at U.S. Supreme Court,” Stephen Miller, a member of Cozen O’Connor’s Commercial Litigation Department, and Alexa Sebia, an associate in the Commercial Litigation Department, discuss United States v. Elonis, in which the U.S. Supreme Court will attempt to define when comments made on social media platforms cross the line from protected free speech to criminal activity. The case arose in our own Eastern District of Pennsylvania. Anthony Elonis posted violent rap lyrics and graphic messages on Facebook about his estranged wife, co-workers and an FBI agent. The communications were objectively threatening, but the relevant question is whether that speech is protected if the government cannot prove that the speaker intended to act on the threat.
December 24, 2014
The U.S. Court of Appeals for the Third Circuit recently denied class certification in a consumer fraud case. In Grandalski v. Quest Diagnostics, No. 13-4329 ((3d. Cir. Sept. 11, 2014), the court affirmed a trial court order denying certification of a nationwide class of consumers allegedly overcharged by the defendant. The opinion is instructional on current class action law and underscores the rigor with which trial courts are expected to analyze motions for class certification.
December 17, 2014
In an article titled “The Crime-Fraud Exception to Attorney-Client Privilege,” Hayes Hunt, a member of Cozen O’Connor’s Commercial Litigation Department, and Michael Zabel, an associate in the Commercial Litigation Department, discuss the crime-fraud exception to attorney-client privilege and its application in a series of high-profile cases involving Facebook, Mark Zuckerberg and a former business partner. The cases present an interesting study in how the crime-fraud exception can operate.
December 17, 2014
In an article titled “SEC Quietly Seeks Industry Bars Against Muni Officials,” Joseph Dever, a member of Cozen O’Connor’s Commercial Litigation Department, reviews several recent Securities and Exchange Commission muni enforcement cases and explains that the agency is quietly seeking a new sanction: "industry bars" against municipal officials. Industry bars are court orders that prohibit municipal officials from participating in future offerings of municipal securities. The significance of this new SEC enforcement strategy should not be overlooked, as an industry bar can essentially serve as a career-ending sanction for an individual working in the municipal finance sector.
December 04, 2014
In an article titled “U.S. Supreme Court to Consider Federal Procedure Questions,” Stephen Miller, a member of Cozen O’Connor’s Commercial Litigation Department, and Stephen Kempa, an associate in the Commercial Litigation Department, discuss several U.S. Supreme Court cases dealing with important issues in the area of federal practice and procedure.
November 20, 2014
Shelby Riney, of Cozen O'Connor's Commercial Litigation department, and Kara McCall published, "Spoliation in Complex Litigation: Lessons Learned," for ABA's The Women of the Section.
November 09, 2014
In an article titled “Supreme Court Takes on Knowledge Standard in Securities Suits,” Stephen Miller, a member of Cozen O’Connor’s Commercial Litigation Department, and Kaitlin DiNapoli, an associate in the Commercial Litigation Department, discuss Omnicare v. Laborers District Council Construction Industry Pension Fund, in which shareholders invoked the securities laws to sue Omnicare for proclaiming in its U.S. Securities and Exchange Commission registration statement that its contracts with drug companies were lawful. This term, the U.S. Supreme Court will explore the pleading standard necessary to proceed on such a securities claim: May the plaintiffs merely allege that such a statement was objectively wrong, or must the plaintiffs also allege that the speaker did not believe that the statement was true?
November 06, 2014
In an article titled “Supreme Court Addresses Treatment of Incriminating Evidence,” Stephen Miller, a member of Cozen O’Connor’s Commercial Litigation Department, and Michael O’Donnell, an associate in the Commercial Litigation Department, discuss two cases that the U.S. Supreme Court will decide in the coming months relating to incriminating evidence – one concerns finding it, and the other concerns destroying it.
October 31, 2014
In an article titled “Pennsylvania Water Law: Contamination Incidents and Liability,” Dexter Hamilton, a member of Cozen O’Connor’s Commercial Litigation Department, Michael Klein, co-chair of the firm’s Energy & Utilities Industry team, and Thomas Leonard, an associate in the Commercial Litigation Department, address recent water contamination incidents and the inevitable legal actions that follow.
October 30, 2014
In an article titled “Judicial Conference Further Amends Proposed Discovery Rule Changes in Response to Extensive Comments,” Thomas Wilkinson, a member of Cozen O’Connor’s Commercial Litigation Department, and Joshua Ruby, an associate in the Commercial Litigation Department, discuss the Judicial Conference Committee on Rules of Practice and Procedure’s (Standing Committee) amendments to the Federal Rules of Civil Procedure. Absent changes imposed by the Supreme Court and Congress, the new rules will go into effect on December 1, 2015. Although not as expansive as the draft amendments proposed last year, the proposals substantially revise the Rules governing discovery practice in the federal courts.
October 22, 2014
Ryan Blaney, a member of Cozen O’Connor’s Health Law practice group, was a contributor in the October edition of the ABA Health Care and Pharmaceuticals Committee Recent Developments. Recent Developments contains summaries of recent federal and state court cases, government enforcement actions, and other ‘’recent developments’’ involving antitrust and privacy issues in the health care and pharmaceutical industries.
October 22, 2014
In an article published in The Legal Intelligencer, Hayes Hunt, a member of Cozen O'Connor's Commercial Litigation Department, and Arthur Fritzinger, an associate in the Commercial Litigation Department, discuss the importance of having clear policies in place to quickly root out potential wrongdoing and thoroughly investigate issues that arise within the organization. Employee wrongdoing may be unavoidable within a large organization, but every company has the ability to limit its impact.
October 02, 2014
In an article titled ''U.S. Supreme Court Clarifies Standards for Restitution Orders,'' Stephen Miller, a member of Cozen O’Connor’s Commercial Litigation Department, and Kaitlin DiNapoli, an associate in the Commercial Litigation Department, discuss Paroline v. United States, in which the Court crafted a new causation standard for awards of restitution following federal criminal convictions.
September 29, 2014
In an article titled, "Zero-tolerance v. hands-free: What should be your cell phone policy," Dexter Hamilton, a member of Cozen O'Connor's Commercial Litigation Department and Thomas Leonard, an associate in the Commercial Litigation Department, compare the two major policy frameworks governing the use of cell phones by employees while driving: zero-tolerance and hands-free. Each approach has positive aspects, but neither can guarantee that a company will not be held liable for an employee’s distracted driving accident.
September 19, 2014
In an article titled ''Pennsylvania Supreme Court Considers Whether Social Science is ‘Common Sense’ or a Tool to Correct Juror Misconceptions,'' Thomas Wilkinson, a member of Cozen O’Connor’s Commercial Litigation Department, and Thomas O’Rourke, an associate in the Commercial Litigation Department, discuss two recent Pennsylvania Supreme Court decisions regarding the use of social science experts in criminal cases.
September 18, 2014
It is axiomatic that to certify a class, plaintiffs must show all members satisfy Article III standing and Rule 23 requirements. While federal courts "do not require each member of a class to submit evidence of personal standing, a class cannot be certified if it contains members who lack standing" to pursue the claim(s) asserted, according to Halvorson v. Auto Owners Insurance, 718 F.2d 773 (8th Cir. 2013).
September 17, 2014
In an article published in the Legal Intelligencer, Hayes Hunt, a member of Cozen O’Connor’s Commercial Litigation Department, and Jillian Thornton, an associate in the Commercial Litigation Department, discuss the steps companies should take if compromising information on an employee is stolen and posted online.
September 17, 2014
Amy Alderfer, a member of Cozen O’Connor’s Commercial Litigation Department, authored an article titled “The Times, They Are a Changin’ – The Emergence of 3D Printing.” The article provides an overview of the potential impact 3D printing may have on products liability law as an increasing number of products are able to be manufactured at home. “While it’s too early to tell how these scenarios will play out, it is important to recognize the product liability issues that will arise as 3D printing becomes more widespread and continues to infiltrate the market,” advises Amy.
September 04, 2014
In an article titled ''Preview of the U.S. Supreme Court’s October Term in 2014,'' Stephen Miller, a member of Cozen O’Connor’s Commercial Litigation Department, discusses some of the highlights of the U.S. Supreme Court's docket for the upcoming term.
August 27, 2014
There is a split among the circuits regarding what a whistleblower must plead to survive a motion to dismiss in False Claims Act (FCA) cases. The U.S. Court of Appeals for the Third Circuit has now spoken for the first time on the issue. In June, the Third Circuit decided Foglia v. Renal Ventures Management, 754 F.3d 153 (3d Cir. 2014). In its decision, the Third Circuit reversed a district court order granting a motion to dismiss for insufficient detail in the pleadings. In so ruling, the Third Circuit sided with those circuits adopting the less demanding of the competing FCA pleading standards.
August 20, 2014
In an article published in The Legal Intelligencer, Hayes Hunt, a member of Cozen O'Connor's Commercial Litigation Department and Arthur Fritzinger, an associate in the Commercial Litigation Department, discuss the increasing use of the discovery process to leverage favorable settlements and resolutions.
August 18, 2014
In an opinion filed August 5, 2014, the Florida First District Court of Appeal held that under Florida’s unclaimed property law, life insurance proceeds are not “due and payable,” and the dormancy period does not begin to run, until the life insurance company receives proof of the insured’s death and surrender of the policy. The court further held that life insurance companies do not have an affirmative duty under Florida law to search death records to determine whether an insured has died.
August 18, 2014
In an article titled, ‘’Compliance Officers Beware: A Firm’s Failure Can Get Personal,” Linda Riefberg and Joseph Dever, members of Cozen O’Connor’s Commercial Litigation Department, discuss the different approaches taken by the U.S. Securities and Exchange Commission (SEC) and the Financial Industry Regulatory Authority (FINRA) with respect to individuals acting as Anti-Money Laundering, Legal and Compliance Officers (hereinafter jointly referred to as CCO). The SEC requires as a threshold matter that the CCO had supervisory responsibility over other individuals. FINRA, on the other hand, is satisfied if the individual has supervisory responsibilities over businesses or program areas that had failures even if the person was not an actual supervisor.
August 18, 2014
In an article titled ''It’s a Dirty World: Internet and Email users Must be Careful About What they Post and Send,'' David Shimkin, a member of Cozen O’Connor’s Commercial Litigation Department, discusses how courts continue to immunize Internet and email users from defamation liability as long as they do not ''materially contribute'' to the alleged defamation that they host, post, or send.
August 15, 2014
In an article published in Today's General Counsel, Stephen Miller, a member of the Commercial Litigation Department, and Brian Kint, an associate in the Commercial Litigation Department, discuss the dispute involving the privileged status of documents created during internal code of business conduct (COBC) investigations conducted by Kellogg Brown & Root, Inc. The case serves as a reminder that reasonable jurists can evaluate privilege issues differently and gives examples of how companies can strengthen any assertion of privilege over internal investigation materials.
August 12, 2014
Aaron Krauss, a member of the Commercial Litigation department, authored a chapter on Cross-Examination in the ABA Trial Practice Committee’s text, ''Trying Your First Case: A Practitioner's Guide.'' The Guide provides practical advice for lawyers who are preparing for their first trial, as well as attorneys who have tried numerous cases. It includes details on how to prepare efficiently, how to cross-examine witnesses, and how to present your case in a professional and informative way.
July 28, 2014
In an article published in the New York Law Journal, Menachem Kastner and Ally Hack, members of Cozen O’Connor’s Commercial Litigation Department, discuss the application of the “four-year rule” post-Grimm v. DHCR² (and its progeny), and, specifically, the slow and painful erosion of the rule.
July 17, 2014
Martin Gusy and Matthew Weldon, members of Cozen O’Connor’s International Arbitration Practice Group, authored a Thomson Reuters Practical Law practice note that examines the legal and procedural requirements counsel must consider when seeking to enjoin international litigation or arbitration.
July 14, 2014
In an article published in The Legal Intelligencer, Hayes Hunt and Joshua Ruby, members of Cozen O'Connor's Commercial Litigation Department, discuss preparing corporate designees for 30(b)(6) depositions.
July 09, 2014
In an article published in InsideCounsel, Dexter Hamilton and Thomas Leonard, attorneys in Cozen O’Connor’s Commercial Litigation Department, discuss distracted driving and the potential impact on employers. Despite the risk and possible financial consequences, distracted driving is likely to continue. The proliferation of personal electronic devices (which are referred to collectively as “cell phones”) has placed fierce pressure on businesses to always be available for both internal and external communication. The quest to remain competitive, the emergence of a younger work force that expects to be connected at all times, and the growing use of technology to facilitate working from remote locations force employers to grapple with cell phone use policies and enforcement.
July 03, 2014
In an article published in The Legal Intelligencer, Stephen Miller and Kaitlin DiNapoli, attorneys in Cozen O’Connor’s Litigation Department, discuss the U.S. Supreme Court’s exploration of two Fair Labor Standards Act cases that have far-reaching consequences for employers, since back pay, overtime and double damages for employees are on the line. The cases involve the compensability of certain activities—donning and doffing protective gear in the case decided in January and going through a security screen in the new case—that employees must complete to perform their jobs, but are not necessarily the crux of the jobs themselves.
June 25, 2014
In a recent case, the U.S. Court of Appeals for the Third Circuit addressed the Class Action Fairness Act (CAFA)'s amount in controversy requirement. In Hoffman v. Nutraceutical, No. 13-3482, slip op. (3d Cir. March 27, 2014), the Third Circuit affirmed the district court's denial of the plaintiff's motion to remand the case back to state court. The court held that the CAFA jurisdictional requisites, including the amount in controversy requirement, were satisfied and supported federal jurisdiction. Embedded in the decision is an interesting operational assumption: Instead of the burden being on the defendant to prove that the CAFA amount in controversy requirement had been met—as is true in most CAFA cases—the burden was placed on the plaintiff to show that the jurisdictional amount had not been met.
June 18, 2014
In an article published in The Legal Intelligencer, Hayes Hunt, a member of Cozen O'Connor's Commercial Litigation Department, and Arthur Fritzinger, an associate in the Commercial Litigation Department, discuss the U.S. Court of Appeals for the Second Circuit’s ruling in Securities and Exchange Commission v. Citigroup Global Markets, No. 11-5227-CV L (2d Cir. Jun. 4, 2014), reversing a decision rejecting a consent judgment filed by the parties and remanding the case to the district court. In its opinion, the Second Circuit provided significant guidance to federal courts and litigants, and reaffirmed the broad discretion afforded to federal agencies in settling regulatory claims.
June 05, 2014
In an article published in The Legal Intelligencer, Stephen Miller and Jordan Fox, members of Cozen O'Connor's Commercial Litigation Department, discuss the U.S. Supreme Court's focus on the First Amendment this term. The court heard oral arguments in April in two such cases—one concerning the protections afforded a public employee while testifying under subpoena, and one concerning the ability of individuals to challenge speech-restrictive campaign laws. Both of these cases present the court with the difficult task of applying longstanding doctrine to new and perplexing problems.
May 21, 2014
In an article published in The Legal Intelligencer, Hayes Hunt and Arthur Fritzinger, members of Cozen O'Connor's Commercial Litigation Department, discuss Allegheny County Court of Common Pleas Senior Judge R. Stanton Wettick Jr.'s recent ruling in Red Vision Systems v. National Real Estate Information Services, No. 14-0411 (Comm. Pls. Feb. 26, 2014), that the attorney-client privilege does not apply to corporations no longer in business has garnered significant attention, including an appeal and the filing of amicus briefing by the Association of Corporate Counsel.
May 19, 2014
Chad Stouffer and Aaron Lukas, associates in Cozen O'Connor's Intellectual Property Department, discuss various e-discovery solutions and how to implement a cost-effective discovery strategy.
May 19, 2014
Aaron Krauss, member of the Philadelphia office’s litigation department, wrote an article for americanbar.org, detailing the difficulties of safeguarding trade secrets in the modern era, and in the event that a client’s trade secrets are exposed, how to defend them in court.
May 12, 2014
John J. Sullivan, member of Cozen O’Connor’s Litigation Department, and Christopher Passavia, associate in Cozen’s Litigation Department, co-authored an article titled “How to Clean Up against Washing Machine Class Actions,” in which they discuss the difficulties presented when defending against such lawsuits. Sullivan and Passavia offer their advice, based on various Washing Machine Class Actions cases, on what steps can be taken by the defense.
May 05, 2014
In an article published in Carrier Management, Richard Fama and Brenden Coller, members of Cozen O’Connor’s Commercial Litigation Department, discuss several significant court decisions relating to class certification that give rise to optimism that the tide of the food and beverage labeling lawsuits may be turning in favor of food manufacturers and their insurers.
May 01, 2014
In an article published in The Legal Intelligencer, Stephen Miller, a member of Cozen O’Connor’s Commercial Litigation and Criminal Defense & Internal Investigations Departments, and Kristy Miller, an associate in the firm’s Litigation Department, discuss the difficult task of reconciling traditional notions of privacy with evolving species of technology as it relates to two recent cases that address what level of privacy one can expect in data stored on a cellphone.
April 30, 2014
Martin Gusy and Matthew Weldon, members of Cozen O’Connor’s International Arbitration Practice Group, authored the New York chapter of the 7th edition of “The International Comparative Legal Guide to: Litigation & Dispute Resolution 2014,” published by Global Legal Group Ltd, London (www.iclg.co.uk). The Guide provides corporate counsel and international practitioners with a comprehensive overview of litigation and alternative dispute resolution practices across the globe.
April 23, 2014
When is it reasonable to rely on a fraudulent statement? Courts applying Pennsylvania law have answered this question in different and conflicting ways, as two recent decisions from the U.S. District Court for the Eastern District of Pennsylvania illustrate. According to the court in Zenith Insurance v. Wells Fargo Insurance Services (E.D. Pa., Jan. 7, 2014), you are entitled to rely on a fraudulent statement no matter what, unless the statement's falsity is obvious on its face or you have actual knowledge of its falsity. Just a few months before, however, a different judge of the same court had expressed the opposite view in Fulton Financial Advisors v. NatCity Investments (E.D. Pa., Oct. 15, 2013): A victim of fraud cannot accept a fraudster at his or her word, but must exercise some degree of diligence in attempting to verify the statement.
April 16, 2014
In an article titled "When Is It Appropriate to Prosecute a 'Faceless' Corporation?" Hayes Hunt and Thomas O'Rourke, members of Cozen O'Connor's Commercial Litigation Department, discuss the September 9, 2010 natural gas explosion in San Bruno, CA and the 12-count indictment charging PG&E with violations of the Natural Gas Pipeline Safety Act.
April 03, 2014
In an article titled “U.S. Supreme Court Tackles Questions of Criminal Intent,” Stephen Miller and Jordan Fox, members of Cozen O'Connor's Commercial Litigation Department, discuss the element of criminal intent. “Guilty knowledge” is often the hardest element for the government to prove in a criminal prosecution. For that reason, criminal practitioners pay special attention to changes in the law that impacts the evidence admissible on the score. The U.S. Supreme Court decided one such case during this term and was set to hear oral argument in another this week.
April 01, 2014
Angelo G. Savino, a shareholder in the Global Insurance Department, authored an article titled Event Horizon featured in the April 2014 issue of [Best’s Review]. In the article Angelo discusses the Haliburton v. Erica P. John Fund Supreme Court case and other factors that could have major impact on the D&O space in 2014.
March 31, 2014
In an article titled “Immaculate Suspension: Non-Analytical Positive Doping Violations from USADA to MLB,” Barry Boss and Rebecca Brodey, of the Criminal Defense & Internal Investigations Practice Group, discuss a new era of combating drug use in baseball and other sports, one where athletes are increasingly suspended for doping violations not because of a positive drug test, but based on non-analytical evidence.
March 28, 2014
In an article titled “Private Causes of Action: The Determinative Third Prong,” Menachem Kastner and Ally Hack, members of Cozen O'Connor's Commercial Litigation Department, discuss when a statute gives rise to a private cause of action and the applicable three-prong test. The article endeavors to capsulize the current state of the law, including its application in real estate cases, and to simplify the formula to be applied as to when individuals can and cannot institute private causes of action based on legislation passed, ostensibly, for the public benefit.
March 19, 2014
In an article titled "Practical Tips for Maintaining Privilege With Consultants," Hayes Hunt and Arthur Fritzinger, members of Cozen O'Connor's Commercial Litigation Department, discuss how general counsel can protect confidential communications with outside consultants from disclosure.
March 06, 2014
In an article titled "Private Enforcement of Product Labeling Violations," Stephen Miller, a member of Cozen O'Connor's Commercial Litigation Department, and David Albert, a member of Cozen O'Connor's Intellectual Property Department, discuss the U.S. Supreme Court's consideration in April whether a private litigant can sue a company for violating federal restrictions on labeling food and beverage products.
February 27, 2014
In an article titled "Copyright Act's Application to Internet Television Broadcasts," Stephen Miller, a member of Cozen O'Connor's Commercial Litigation Department, and Thomas Leonard, an associate in the firm's Litigation Department, discuss the U.S. Supreme Court's upcoming decision on whether Aereo's system of transmitting television programs over the Internet violates the Copyright Act. The ruling could have a seismic impact on the television industry and how Americans view television shows.
February 26, 2014
Arbitration clauses are the fashion now. We are frequently reminded that parties save time and money through the arbitration alternative to litigation. It is not without irony, then, that arbitration clauses have engendered plenty of old-fashioned litigation. Two recent Pennsylvania federal court decisions deal with the enforceability of arbitration clauses, and both decisions foretell of added litigation in the arbitration arena.
February 24, 2014
Courthouse wisdom is that judges generally dislike noncompetes. After all, everyone should be entitled to earn a living, right? As a result, judges often look for a reason to find that a noncompete is inapplicable, or should not be applied in the particular situation facing the court (for example, because it is overly broad). The former was the case in Gingrich v. Midkiff, 120332-U (Ill. App. 5th 2014), in which a court refused to enforce a noncompete between two doctors because the shareholders’ agreement provided that the noncompete was only triggered if one of the doctors either withdrew or was expelled from the practice. That isn’t what happened in Gingrich. On the contrary, after the doctors started suing each other, one doctor bought out the other under an Illinois “deadlock” statute. As a result, the “departing” doctor didn’t “withdraw” and wasn’t “expelled.” Instead, she was statutorily bought out.
February 19, 2014
Penn State University recently decided to waive attorney-client privilege and cooperate in the criminal prosecutions of certain former employees. Obviously, the former employees have attempted to assert privilege to exclude potentially incriminating statements. How would it affect their claims of privilege if the university shared that confidential information with outside consultants hired during the investigation?
February 11, 2014
In products liability actions, plaintiffs use prior consumer complaints as evidence that a defect existed or that the defendant ignored a known defect. Precluding these prior consumer complaints is important to the defense, because this evidence has significant potential to prejudice the jury and lead to the imposition of liability in cases where plaintiffs have failed to produce sufficient proof of a defect. For these reasons, defendants must challenge the admissibility of prior consumer complaints. Defendants should argue that the communications are not substantially similar to the facts, circumstances and defects claimed in the case at issue (and are, thus, not relevant), and are inadmissible hearsay.
February 06, 2014
In two sets of cases this term, the U.S. Supreme Court is set to decide questions that could significantly alter securities litigation on behalf of large groups of investors under both federal and state law.
January 22, 2014
OFAC does not deal only with cooperating entities, of course. On one hand, non-cooperating entities certainly run a risk that OFAC will refer their violations to criminal authorities. But even a non-cooperator can receive benefits, even grudgingly, under OFAC’s administrative-penalty regime — especially compared to companies that become targets of criminal prosecution and the severe penalties attendant to that process. That comparison between administrative and criminal punishments of non-cooperating entities, as discussed infra, may yield useful, persuasive data to criminal defense lawyers representing an entity under criminal investigation.
January 22, 2014
The Pennsylvania Supreme Court recently adopted a new Code of Judicial Conduct. Effective July 1, 2014, new rules will apply to the extrajudicial activities for Pennsylvania judges. Businesses and nonprofits need to accommodate these changes to ensure that their board members from the judiciary comply with the code and to avoid adverse consequences in litigation. Litigation is costly enough for the private sector and defending against motions for disqualification will only add to that bill. Even organizations without judges serving as board members need to be aware of the potential impact of charitable donations and campaign contributions on their interests in litigation under the new code.
January 13, 2014
Social media is a mainstay in daily life. Over a billion people are registered users of Facebook. The Facebook logo and the logos of other social networking giants such as Twitter are quickly becoming as iconic as McDonald's Golden Arches or Apple's apple. As the popularity of social networking sites grew, industries scrambled to utilize such a powerful tool. The legal profession is no exception. Unfortunately, the combination of rapidly changing technology and slowly evolving law has created a potpourri of law in which little is settled or clear when it comes to social media and the courtroom. What is clear, however, is that attorneys who understand how social media can help or hurt their clients and have well-defined plans for tackling social media issues will be in the best position to successfully advocate for their clients.
January 03, 2014
The Eighth Circuit recently upheld the removal to federal court of product liability claims filed by over 100 plaintiffs in state court in St. Louis. See Atwell v. Boston Scientific Corp., 2013 (8th Cir. Nov. 18, 2013). The decision illustrates how plaintiffs’ requests to coordinate multiple cases can sometimes sweep “mass tort” cases filed in state court right into federal court as a “mass action” under the Class Action Fairness Act of 2005. This is no small shift in a litigation, and so Atwell provides a helpful background on some of the characteristics of a plaintiff coordination proposal that can trigger such CAFA removal.
January 02, 2014
In two cases this term, the U.S. Supreme Court will decide the extent to which federal courts should defer to the decisions of other tribunals. Its decisions will have a substantial effect on the role of the federal courts in relation to state proceedings and in reviewing the decisions of international arbitration panels.
December 23, 2013
As the formulas from Part 1 demonstrate, OFAC’s regulations strongly incentivize cooperation to reduce a violator’s penalty. The next section examines a few recent enforcement actions in which companies have taken advantage of these regulatory formulas to minimize penalties resulting from violations.
December 16, 2013
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 case Tooey v. AK Steel Corp., the court ruled that the Commonwealth’s Workers’ Compensation Act (the WCA) does not apply to claims based on occupational disease that otherwise would fall within the law’s ambit but does not manifest until after 300 weeks following the termination of a worker’s employment. Significantly, because the WCA does not apply to these claims, workers who develop mesothelioma can now sue their former employers in tort, unlike other workers whose claims fall under the Act and who can only proceed against their employers for worker’s compensation benefits.
December 12, 2013
U.S. Supreme Court Justice Antonin Scalia is rarely subtle when angry. And he has often been angry when evaluating the tests employed by his colleagues to resolve First Amendment religion cases. In particular, in a 1992 concurring opinion, he derided a multifactor test for evaluating the proper separation of religion and state as "some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad after being repeatedly killed and buried … frightening the little children and school attorneys" across the country.
December 04, 2013
In September 2009, when the FBI had arrested Sergey Aleynikov for allegedly stealing proprietary trading codes from Goldman Sachs, the financial powerhouse probably did not expect, as a purported victim, to pay him to defend against the criminal charges. However, last month a New Jersey federal judge held that Aleynikov, a programmer at a Goldman subsidiary for less than two years, could be considered an officer by virtue of his vice president title and that the company's bylaws required it to advance his attorney fees. The ongoing dispute over the costs of Aleynikov's defense against federal and state charges arising from his alleged theft demonstrates the importance of careful drafting of the advancement and indemnification provisions of corporate bylaws.
December 01, 2013
Consider the following scenario: You have been retained in a personal injury case and your opponent has hired a medical expert to testify at trial. In response to a discovery request seeking materials from the expert’s file, your opponent turns over certain documents but withholds “letters and emails” exchanged with the expert. The basis for this nondisclosure is that the correspondence is protected “attorney work product.”
November 27, 2013
In a whistleblower suit brought by a former athletic director, a New Jersey Appellate court recently held that a basketball coach’s disclosure to the NCAA of an email to the university’s counsel did not waive the university’s attorney-client privilege. See Hedden v. Kean University, No. A-4999-12T2 (N.J. App. Div. Oct. 24, 2013).
November 27, 2013
When is insurance not insurance? According to both Merriam-Webster and Black's Law Dictionary, insurance is a "contract whereby one party undertakes to indemnify or guarantee another against loss by a specified contingency or peril." Under that definition, "insurance" would include surety agreements, where one party agrees to indemnify another party if a third party defaults on a debt or fails to perform on a contract. But not so fast. A recent Pennsylvania federal court decision dismissed a bad-faith claim against a surety, finding that a surety bond is not "insurance" in Upper Pottsgrove Township v. International Fidelity Insurance, No. 13-1758 (E.D.Pa. Oct. 2, 2013).
November 21, 2013
Every year millions of Americans attempt to navigate the legal system without the
assistance of a lawyer. For a growing number of citizens, private counsel is unaffordable, free legal services are unavailable and they are forced to represent themselves in civil cases. In fact, each year less than 20 percent of low-income individuals with civil legal problems obtain legal assistance. Yet these legal issues involve the most basic rights that lawyers are sworn to protect, including cases involving but not limited to housing, health care, child custody and protection from abuse.
November 20, 2013
Recent settlements in civil enforcement proceedings brought by the Office of Foreign Assets Control (OFAC) suggest that cover-ups, not crimes, may invite the stiffest penalties. Frequently, companies that cooperate with OFAC investigations, admit wrongdoing and take remedial actions to prevent future violations escape the enforcement process with mild punishments. Indeed, even companies that eventually cooperate after some initial resistance fare well in OFAC’s administrative enforcement process and often avoid criminal penalties altogether — penalties that, aside from the reputational damage, carry much more severe consequences, including prison time for individuals and massive financial impact.
November 14, 2013
The jurisdiction cases reviewed by the U.S. Supreme Court are rarely headline-grabbing. Nonetheless, those cases exert a significant effect on the civil litigation that fills the nation's dockets. This fall, the justices are considering two interesting cases from the U.S. Court of Appeals for the Ninth Circuit that may limit the ability of federal courts to exercise jurisdiction over parties in foreign districts.
October 23, 2013
On July 31, as an act of protest against an order to share a trial court's award for the wrongful death of his son with others injured in the same traffic accident, an Illinois man decided to pony up the $150,000 in quarters. The 600,000 quarters were loaded into 150 bags, and an armored truck transported the four-ton payload from St. Louis to Marion, Ill. The bags were then divided equally, loaded onto two flatbed trucks and delivered to the law firms that represented the other victims in the wreck. Of course, not all cash transactions are this burdensome, but the example helps to explain why more payments are made without using bills or coins than ever before.
October 10, 2013
This term, the U.S. Supreme Court is set to decide three cases posing difficult questions about the limits of the powers of each of the three branches of the federal government.
October 09, 2013
The Delaware General Corporation Law, like the business corporation law of most states, provides in Section 223(a) that vacancies on a corporate board can be filled through appointment of new directors by the existing directors unless the certificate of incorporation or bylaws provide otherwise. However, unlike the corporation law in other states, Section 223(c) of the DGCL allows stockholders in certain circumstances to petition the Court of Chancery to direct that a special stockholders' meeting take place in order to fill the vacancies through a stockholder vote. Section 223(c) commits the decision to grant the petition to the discretion of the court.
October 03, 2013
After last term’s fireworks, casual observers of the U.S. Supreme Court may find it hard to believe that there remains anything left for the Supreme Court to decide. Somehow, though, the justices will find a few things to fill their days. And a preview of the cases slated for review (so far) reveals that those “things” promise to be very interesting.
September 25, 2013
The U.S. Court of Appeals for the Third Circuit recently decided a case involving a challenge, on religious grounds, to the Affordable Care Act. In Conestoga Wood Specialties v. Secretary of the U.S. Department of Health and Human Services, No. 13-1144, the Third Circuit rejected a religious-based constitutional challenge to the act's provision requiring companies to offer health insurance that covers contraceptives for women.
September 25, 2013
Every day, countless civil lawsuits are filed in this country. Every day, countless plaintiffs seek relief from our nation's court systems, whether it be to recover for economic losses, to prevent future illegal conduct or to challenge a law or regulation. For a lawsuit to continue past the preliminary stages, each plaintiff must allege some degree of facts and a cognizable legal theory that entitle that plaintiff to relief. In turn, each defendant has an opportunity to dispute the plaintiff's factual and legal allegations and thereby contest the validity of the action. All of this is quite elementary to even the greenest of lawyers.
September 25, 2013
What could be better than new love, except perhaps secret new love? Few in the throes of budding romance are willing to acknowledge the possibility that what is sweet now might sour later, let alone eventuate in a lawsuit. But when the romance in question is between co-workers, and especially where there is a supervisory relationship involved, the company hosting their courtship should take protective measures once the relationship comes to light. Otherwise, what began as an innocent (or not-so-innocent) dalliance could end in a nasty and costly lawsuit.
September 11, 2013
It is not often that the Delaware Supreme Court rejects the specific arguments advanced by an appellant and then decides the matter in the party's favor on grounds not asserted by that party but considered sua sponte by the court. Such was the case in Levey v. Brownstone Asset Management, LP, No. 551, 2012 (Del. Aug. 27, 2013), wherein the court reversed the decision of the Court of Chancery and remanded for further proceedings "in the interest of justice."
August 28, 2013
Hayes Hunt and Michael Zabel, both from the firm's Litigation Section, address what happens when a criminal defendant is a corporation, including recent cases involving Halliburton and SAC Capital Advisors.
August 26, 2013
Litigation is, by its very nature, adversarial. That, of course, has not stopped the vast majority of the nation's best lawyers from lawyering in a civil manner. While riding the circuit, Abraham Lincoln - who was America's longest practicing lawyer to become President - frequently pursued opportunities for settlement or mediation, recognizing that it was often more productive for his clients to approach their opponents with professionalism and open-mindedness, and that such an approach could strengthen the lawyer's reputation and that of his or her profession. With much of the attention these days focused on the country's sixteenth President as such, there still endures the wisdom of the country lawyer who once admonished his colleagues that "[a]s a peacemaker the lawyer has a superior opportunity of proclivity for conflict, personal insecurity, poor listening skills, [or] the inability to reason, discuss, and argue well."
August 16, 2013
In a case widely reported by the national media, the Washington State Supreme Court recently ruled that a governmental entity may face liability for faulty road design that leads to injuries in car crashes, even when the driver is drunk and driving recklessly.
July 24, 2013
Edward Snowden's detention in the Moscow airport transit zone, and the U.S. government's efforts to extradite him, may seem confined to that case's politically charged circumstances. But what if Snowden were merely a malingering corporate employee? Imagine if he had absconded with company secrets (such as the Coca-Cola recipe), or embezzled company funds, and was hiding out halfway across the world. Under what circumstances, if any, could he be forcibly returned to the United States to answer for his actions?
July 24, 2013
The heightened pleading standard set forth by the Supreme Court in Bell Atlantic v. Twombly and Ashcroft v. Iqbal has become a familiar tool for defense counsel seeking to dismiss a complaint in federal court. But is what's good for the goose also good for the gander?
June 26, 2013
Lawyers and law firms are increasingly using blogs, also referred to as "blawgs," along with social media sites such as Facebook and Twitter, to build their visibility and brand. While blogs do not have the traditional look and feel of attorney advertising, they certainly have at least some measure of commercial purpose. After all, it is unlikely that law firms would expend resources on this new form of communication if they did not at least hope to receive some return on their investment. Yet, blogs may not fit neatly inside regulations on attorney advertising that were written with more traditional media formats in mind.
June 13, 2013
The U.S. Supreme Court is presently considering whether federal law pre-empts state design-defect claims targeting generic pharmaceutical products. Just two years ago, the court insulated generic-drug manufacturers from state-law failure-to-warn claims. It seems doubtful that any of the justices in that majority will treat this case differently, and, thus, generic drugmakers may soon enjoy a new immunity.
June 08, 2013
Ready to file for divorce? Once you’ve made the difficult decision to go through with it, it’s time to figure out what’s next. Avoid a long, emotional ordeal by knowing what lies ahead and by taking action.
June 03, 2013
Major League Baseball’s salary arbitration system strikes a unique balance during a player’s first six major league seasons between teams completely controlling players and players earning their fair market value. Critically, the system resolves the issue of player salaries prior to, or, at the
latest, early in spring training. This system developed somewhat serendipitously over more than a century of court battles, labor negotiations, and back room deals. Despite this ad hoc history, Major League Baseball’s salary arbitration system successfully handles and resolves these salary disputes.
May 29, 2013
The focus on the political consequences of the Internal Revenue Service scandal has overshadowed a troubling reality that a federal agency targeted specific groups of people for discriminatory treatment. In singling out conservative groups, the IRS reminded us that the McCarthy-era Red Scare is not the distant memory many would like to believe. However, the media's uniform condemnation of this conduct demonstrates how the world has changed since then. People do not quietly allow government abuses to occur. This political backlash may be responsible in part for the U.S. Department of Justice's criminal investigation into the IRS's actions. Civil lawsuits are being filed by affected groups. The critical question is what legal remedies are available to organizations singled out by the government for discriminatory treatment.
May 22, 2013
A settlement is a settlement. The parties agree on its terms, terminate the litigation, and move on. Right? Not always. Class actions, for example, are different. There, the courts must review the settlement to determine whether it is fair and reasonable. If it is not, the court may reject the settlement and require the parties to craft different settlement terms or resume litigation.
May 09, 2013
At oral argument in Association for Molecular Pathology v. Myriad Genetics, the U.S. Supreme Court recently grappled with the question of whether human genes are patentable. Justice Stephen Breyer seemed to capture the justices' sentiment in the lively argument session: "The patent law is filled with uneasy compromises." The compromises that the justices choose will affect the future work of the U.S. Patent and Trademark Office (PTO) and shape the path of genetic research in the future.
May 08, 2013
A recent Chancery Court decision underscores the broad scope of a director's right to information, even where he is a plaintiff in litigation action against the corporation. In Kalisman v. Friedman, the court held that a corporation could not assert the attorney-client privilege or work-product doctrine to withhold documents from a director who had been frozen out of the deliberative process on a controversial recapitalization plan.
May 01, 2013
Many have been there. Your department receives notice of an accident, a copyright dispute arises, or an employee files a claim with your local employment commission as precursor to a claim for benefits or discrimination. Your first thoughts are, "Will you be sued, and what is the likelihood of success?"
May 01, 2013
It may be surprising to hear that there are two categories of expert witnesses under the Federal Rules of Civil Procedure, and that the scope of discovery available from each is different. Indeed, before 2010, the federal rules addressed only a single class of expert witnesses: experts who were required to produce a written report.
April 24, 2013
If no express contract for services exists, the party providing services has two potential remedies. First, if the party receiving the benefit of the services had not assented to an agreement, the party providing services nevertheless may receive restitution for the unjust enrichment of the other by bringing an action in quasi contract (a contract implied-in-law) for services rendered, where there was an expectation that the service would be paid for and it would be unjust for the other party to receive the benefit of the services without paying compensation. Second, if the parties lack an express contract but there is a partial agreement, which for some reason falls short of being an enforceable contract, a party may recover in quantum meruit on a (contract implied-in-fact) for the reasonable value of the services rendered.
April 24, 2013
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 corporations don't have the right to plead the Fifth Amendment at an organizational level. However, with governmental investigations of varying types on the rise, and in-house counsel advising the corporation and preparing witnesses for participation in these investigations, the Fifth Amendment and its protections are an important tool in protecting the company and its employees from self-incrimination.
April 24, 2013
Where an express contract exists, a claim exists for breach of the implied covenant of good faith and fair dealing, but the claimant cannot also recover under a theory of unjust enrichment. Although a claimant cannot recover for both breach of the implied covenant and unjust enrichment, both claims may be pled separately and simultaneously as alternate forms of relief.
April 24, 2013
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 agency decision-making. Without that deference, people and corporations would often have an incentive to try to impair (or at least delay) agencies' actions through court challenges.
April 18, 2013
The voluntary payment doctrine has been long applied to prevent tenants from recovering payments made to the landlord which were tendered “voluntarily”—to wit, without dispute or inquiry—over a lengthy period of time. For example: a tenant tenders payment of real estate taxes to the landlord for over 10 years pursuant to what the tenant later claims to be an erroneous method of calculation, resulting in an overbilling. With this newfound knowledge, the tenant brings suit against the landlord to recover the amounts overpaid. By virtue of the voluntary payment doctrine, under this scenario, the tenant is, in essence, out of luck.
April 10, 2013
In Raul v. Rynd, C.A. No. 11-560-LPS (D. Del. Mar. 14, 2013), the U.S. District Court for the District of Delaware dismissed a derivative lawsuit brought on behalf of a Delaware corporation alleging that its board of directors, assisted by the board's compensation consultant, breached fiduciary duties and securities laws by approving compensation to the company's top executives despite the failure of a "say-on-pay" shareholder vote on that compensation. The suit was dismissed for failure to satisfy the pre-suit demand requirement for derivative actions and to state a claim upon which relief may be granted. The court's opinion underscores the strong policy of the Dodd-Frank Act making say-on-pay votes nonbinding.
March 27, 2013
Two recent decisions prove that nothing is as simple as it seems — especially removal. The opinions by the U.S. District Court for the Eastern District of Pennsylvania in February illustrate hidden traps in the removal process. Given the importance of forum to the outcome, litigation counsel should understand not just the letter of removal statutes, but the nuances developed by recent case law.
March 18, 2013
Isaac Binkovitz, an associate in Cozen O'Connor's Commercial Litigation department, discusses how the conditions imposed in non-prosecution agreements under the U.S. FCPA provide practitioners with a strong standard of conduct to rely on under the U.K.’s 2010 Bribery Act in asserting the new affirmative defense of “adequate procedures” to prevent bribery.
March 18, 2013
The era when a lawyer can competently practice without understanding a client's electronic data is rapidly drawing to a close. New York's Office of Court Administration has recommended amendments to the rules governing preliminary conferences in non-Commercial Division cases that should radically reduce the number of cases where one can stand in front of a judge like Saturday Night Live's fabled unfrozen caveman lawyer, proudly ignorant of electronic discovery issues.
March 14, 2013
Congress funds a variety of causes to the exclusion of others. That is permissible and necessary. Congress cannot, however, condition its spending on the abandonment of recipients' constitutional rights.
March 13, 2013
On January 2, the Delaware Supreme Court issued a trilogy of cases dealing generally with the issue of whether a case should be dismissed for the attorneys' failure to obey scheduling orders.
February 27, 2013
Last month, the U.S. Court of Appeals for the D.C. Circuit in United States v. Ring, upheld a conviction for bribery under the public sector honest-services fraud statute, expanding the definitions of
February 13, 2013
In WM Inland Adjacent LLC v. Mervyn's LLC...the U.S. Bankruptcy Court for the District of Delaware faced a question of first impression: whether a claim arising from an indemnification provision in a nonresidential commercial lease with the debtor, which the debtor rejected post-petition, was entitled to administrative priority under §365(d)(3), or was a pre-petition, general unsecured claim under §502(g).
February 07, 2013
The U.S. Supreme Court granted certiorari this term on two issues concerning the Fifth Amendment's Takings Clause. The justices heard oral arguments January 15 on a case focused on the conditions that a land-use agency may attach when issuing a development permit.
February 06, 2013
Chenzira v. Cincinnati Children’s Hosp. Med. Ctr., No. 1:11-cv-00917 (S.D. Ohio Dec. 27, 2012), highlights a rarely litigated issue in Title VII cases: what constitutes a religious practice or belief. In Chenzira, a customer service representative who worked at an Ohio hospital for more than 10 years was discharged from employment for refusing a flu shot.
January 23, 2013
This whitepaper provides an overview of construction related issues potentially raised by storm damage, including delay claims, areas of responsibility of municipalities and design professionals, environmental concerns and other topical matters.
January 10, 2013
In the most recent Supreme Court term, justices heard oral arguments and granted certiorari on several cutting-edge questions of intellectual property law.
November 29, 2012
If you think you understand the law of waiver, read on. You may be surprised to learn that the U.S. Court of Appeals for the Third Circuit has not yet decided whether typical waiver principles apply to choice-of-law issues.
November 13, 2012
Collectibility in Legal Malpractice Suits - A Required Element in Proving Damages: Schmidt v. Coogan - Commercial Litigation Alert - 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 collectibility is fatal to a plaintiff trying to establish damages in a legal malpractice action.
October 29, 2012
The NCAA is a financial juggernaut. Each year, the organization generates nearly a billion dollars of revenue premised largely on its perceived status as shepherd of the amateur ideal. Indeed, the NCAA takes great pains to cultivate that image by, among other things, reminding us that most student-athletes “go pro in something other than sports.”
October 23, 2012
Two terms ago, in Wal-Mart Stores v. Dukes, a 5-4 majority of the U.S. Supreme Court emphasized that class actions should be the "exception," not the rule, in federal litigation. In Dukes, the court held that a class of 1.5 million current and former employees of Wal-Mart failed to satisfy the "commonality" requirement of Federal Rule of Civil Procedure 23, and, therefore, could not bring a class action asserting their employment discrimination claims under Title VII.
October 23, 2012
A lawyer's take on how to fix the National College Athletics Association's broken, capricious system for investigating and punishing schools and student-athletes accused of impropriety
September 26, 2012
The Effects of Social Media on the Workplace - The Legal Intelligencer - Giving your opinion on politics or complaining about the boss via Facebook is so commonplace and rampant that few people probably stop to think about the consequences of their posting.
August 15, 2012
Chancery Court Loosens Restrictions of Confidentiality Designation, Trusting Lawyers' Good Faith - Delaware Business Court Insider - It is common practice in Chancery Court cases to enter into a stipulated confidentiality order permitting parties to designate certain documents as confidential and to limit their disclosure and use by parties in the pending litigation.
Frequently, the confidentiality orders contain several classifications that can be utilized by the parties to restrict even further the disclosure of certain documents to counsel for the parties or to designated persons.
August 10, 2012
Immediately after the Supreme Court decided United States v. Booker, 543 U.S. 220 (2005), cries arose from all corners of the federal criminal justice system that the sky had fallen and chaos undoubtedly would reign until Congress saved the day with a legislative ﬁx. John Gibeaut echoed popular sentiment when he wrote in the ABA Journal eReport, on January 15, 2005, “Prosecutors likely won’t be the only ones on shaky ground after this week’s U.S. Supreme Court decision. . . . The earth also could be moving beneath defendants and judges, sentencing experts predict.”
July 02, 2012
The JOBS ACT: SEC Guidance on the Changes to the Registration and Deregistration Requirements under the Exchange Act - Securities Alert - H.R. 3606, also known as the Jumpstart Our Business Startups Act (JOBS Act), was signed into law on April 5, 2012.
June 30, 2012
Bank Errors - BEST’S REVIEW - As of early April, the Federal Deposit Insurance Corp. had filed 27 lawsuits against directors and officers of failed banks. In several of these actions, the FDIC also named spouses of some executives, outside professionals and D&O insurers.
May 21, 2012
Evidence of Immigration Status May Be Precluded - New York Law Journal - With his dissent in Angamarca v. New York City Partnership Housing Development Fund, Inc., et al., Justice Peter Tom of the Appellate Division, First Department took issue with the majority’s upholding of the preclusion of evidence of an undocumented alien’s plans to return to his country after trial. Plaintiffs are authorized under CPLR § 4111 to seek an itemized verdict of special damages that may include an award for future medical expenses.
May 17, 2012
The Impact of the Professional Services Exclusion on Negligent Supervision/Sexual Molestation Claims - Claims Management Magazine -
May 02, 2012
Practical Approaches to Avoid Medical Device Sales Representative Liability - ABA TIPS Medicine & Law Committee Newsletter - Because of numerous advances in science and technology, the medical sector has seen dramatic growth in the use of medical devices to treat patients. In many cases the devices are complex and dynamic, therefore, manufacturers and physicians have recognized the need to have a sales representative present during their surgical implantations. Beyond merely observing a surgical procedure, sales representatives are often called upon to assist the physician with the proper...
April 16, 2012
In the 2000 World/Subway Series, Roger Clemens hurled a broken bat at Mike Piazza. In hindsight, we can ask: Was it “roid rage”?
Clemens now finds himself on trial this week in a real Washington D.C. courtroom concerning his use of performance-enhancing drugs (PEDs).
April 09, 2012
Federal court class actions have been around for over 50 years. As they grew in importance in the 1960s and 1970s, it was a bit like the tale of Frankenstein. Had the class action rule created an improved tool allowing small claimants a fair day in court against large, deep-pocketed corporations? Or had the class action become something greater than intended — something that turned the risks and costs of litigation so much against corporate defendants that the class action had merely substituted one form of unfairness for another?
March 21, 2012
On March 15, a panel of the 2nd U.S. Circuit Court of Appeals granted a stay of the district court litigation brought by the Securities and Exchange Commission against Citigroup Global Markets Inc.
March 20, 2012
Justices Set to Revisit Affirmative Action for Universities - The Legal Intelligencer -
March 19, 2012
More than 10 years ago, at a time when much uncertainty surrounded issues related to electronic documents, the New York State Bar Association Committee on Professional Ethics issued one of the first opinions addressing a lawyer’s ethical obligations concerning metadata.
March 13, 2012
When It Comes to Data Breaches: Show Me The Injury - Global Insurance Alert! - Two recent decisions, one by Oregon's highest court and the other by the 1st Circuit Court of Appeals, reveal a growing trend finding legitimacy in claims asserted by plaintiffs whose personal information has been stolen or compromised only if such information is actually used by a third-party to cause harm or perpetuate identity theft
March 08, 2012
Liability insurance for a large, complex claim is often a love-hate relationship. On the one hand, the policyholder and the insurer may stand on common ground in their adversity to the underlying claimant. On the other hand, the policyholder may find that the insurer—though the enemy of his enemy—is not necessarily his friend. The bigger and thornier the claim, the more likely that the insurer will reserve its rights to deny coverage.
March 01, 2012
''Wrap'' insurance programs have become a popular alternative to traditional insurance arrangements, particularly on large construction projects. However, contractors need to be aware of some of the unique issues that arise in wrap programs - specifically, liability insurance wraps.
February 07, 2012
New York's Appellate Division Holds that Insurers Cannot Delay Issuing a Disclaimer of Coverage on a Known Coverage Defense While It Investigates Other Potential Grounds for Disclaiming - Global Insurance Alert! - In George Campbell Painting v. Nat'l Union Fire Ins. Co. of Pittsburgh, Pa, 2012 N.Y. Slip Op. 254 (1st Dept. 2012), New York's Appellate Division, First Department, expressly overruled its prior holding in DiGuglielmo v. Travelers Prop. Cas., 6 A.D.3d 544, 766 N.Y.S.2d (1st Dept.2004), which held that "[a]n insurer is not required to disclaim on timeliness grounds before conducting a prompt, reasonable investigation into other possible grounds for disclaimer."
January 30, 2012
Philadelphia Commerce Court Sustains the PA Business Judgment Rule - The Legal Intelligencer - The Philadelphia Commerce Court recently issued an opinion declaring the business judgment rule alive and well for corporate boards in Pennsylvania. In a case involving a board's decision to sell the company, the court relied upon the findings of a special litigation committee and rejected shareholder allegations that the SLC was biased and did not act in the best interest of the corporation.
January 24, 2012
The 'Eyes' Have It at the U.S. Supreme Court - The Legal Intelligencer -
January 11, 2012
When 'The Law' Is in the Lobby - The Legal Intelligencer -
January 04, 2012
IDENTIFYING THE PLAYERS AND PRESSURE POINTS WITH AN EYE TOWARDS THE END-GAME - Construction Litigation - Construction failures appear in many forms: fires, floods, collapses, injuries sometimes involving death to workers or third-parties. There are many varieties of construction problems leading to claims and litigation. The purpose of this discussion is not to answer every conceivable question that may arise, but to provide a basic template and methodology to approach the handling of construction claims, which are either headed to, or in litigation.
December 01, 2011
New York Court Rules Firm Not Liable for Issuing Legal Opinion Letter in Fraudulent Dreier DealNewsletter - ABA Section of Litigation Ethics & Professionalism Newsletter -
December 01, 2011
Trial Court Orders Overruling Privilege Claims Still Immediately Appealable - PBA Civil Litigation Newsletter -
November 28, 2011
Expanded U.S. Sanctions Will Affect Companies Doing Business in Iran - Business Law Alert! - On November 21, 2011, the United States imposed expanded sanctions against Iran in response to a recent report by the International Atomic Energy Agency concerning Iran’s nuclear aspirations. These new sanctions primarily target non-U.S. persons and entities that transact business relating to Iran’s petroleum, petrochemical, and banking sectors. Both the United Kingdom and Canada have also announced their intentions to tighten restrictions on financial and trade transactions with Iran.
November 14, 2011
In Wake of Wal-Mart Case, Class Actions Still Alive and Well - The Legal Intelligencer - In Wal-Mart Stores Inc. v. Dukes, The U.S. Supreme Court reversed a grant of class certification. The case involved allegations of discrimination against women, and the Supreme Court said that the case involved too many individual claims, circumstances and factual analyses to be litigated on a classwide basis.
October 19, 2011
Blockbusters Loom as Supreme Court Term Begins - The Legal Intelligencer - It is surely tempting to summarize the Supreme Court's upcoming term in the voice of Charlie Brown's teacher: " Wah wah, wah wah wah wah , health care, wah wah wah wah , health care." The court's anticipated consideration of challenges to the Affordable Care Act would be momentous in any term; it becomes especially important when it occurs in the midst of the next presidential election.
October 17, 2011
New York Court Upholds Denial of Coverage Where Policyholders Breached D&O Policy's Consent-to-Settle Provision - Insurance Coverage Alert! - In Federal Ins. Co. v. Safe Net, Inc., 2011 WL 4005353 (S.D.N.Y. Sept. 9, 2011), a New York federal judge granted partial summary judgment in favor of Federal Insurance Company (Federal), holding that SafeNet, Inc. (SafeNet) and its vice president and chief financial officer failed to comply with the consent-to-settle provision in their D&O policy and were thus precluded from recovering under the policy with respect to their settlement of a securities fraud class action.
October 04, 2011
'Trial by the Clock': Has the Time Come? - The Legal Intelligencer - A few weeks ago, we had a trial in federal court. The case involved alleged misrepresentations in connection with the sale of auction rate securities and was relatively complex. There had been 25 depositions, and over 500,000 documents were exchanged. Liability was vigorously contested, and damages were complicated because the principal damage was lost liquidity -- not a readily calculated drop in the security's price.
October 01, 2011
Fall 2011 - Business Law Observer - We welcome your inquiries on these topics and any other questions you may have, and trust that we can provide you with the counsel you need to steer clear of the impediments to successfully running your business.
September 12, 2011
PA Firms Making Midlevels Happier - The Legal Intelligencer - The bulk of Pennsylvania firms did a better job keeping their midlevel associates happy this year than they did last year, according to a survey by Legal affiliate The American Lawyer.
September 01, 2011
Whether your company is dealing with a damage claim or facing an investigation by a regulatory agency, one of the issues that must top your checklist to ensure a response that best protects your company is the preservation of electronic evidence.
August 22, 2011
Professional Liability: The Yaron Decision and Its Impact on Insurers - Insurance Coverage Alert! - On July 5, 2011, the Philadelphia County Court of Common Pleas published its decision in Yaron, et al. v. Darwin National Insurance Company, et al., No. 502, a declaratory judgment coverage action brought by two policyholders against their professional liability insurers. The court, in an opinion authored by Judge Arnold L. New, granted summary judgment in favor of the insurers, holding that they were not obligated to pay the policyholders’ defense costs in connection with an underlying action.
August 19, 2011
When Kovel Letters Spell Trouble for a CFO - BNA - Cozen O'Connor's Aaron Krauss writes in BNA's Accounting Policy & Practice Repot that an outside accountant's work can be privileged if the accountant is providing new services at the direction of a lawyer under a specific engagement letter with the lawyer. Aaron explains that if the accountant proceeds under a Kovel letter, the accountant will have done everything possible to protect the client's interests.
July 18, 2011
Tammy Shea, a member of Cozen O'Connor's Commercial Litigation department, discusses changes that are coming to ratemaking in the Texas Lawyer.
July 12, 2011
The 20-Year Ditch: The Realities of Mid-Life Divorce - The Legal Intelligencer - Their names are familiar: Arnold Schwarzenegger and Maria Shriver; Al and Tipper Gore; Frank and Jamie
McCourt. Besides fame, fortune and power, what do these couples have in common? They all chose to
separate and divorce after more than 20 years of marriage.
July 01, 2011
Recovering from Construction Defect Claims - Property Casualty 360 - In the past 10 years, more than 25 states have enacted specific builder-friendly construction defect notice and resolution statutes that may affect subrogation claims.
June 13, 2011
Supreme Court Decision Limits Scope of Private Securities-Fraud Actions - Securities Offerings and Regulation Alert! - This morning, the Supreme Court issued an important decision limiting the scope of private securities-fraud actions. The decision in Janus Capital Group, Inc., et al. v. First Derivative Traders (No. 09-525) will provide powerful protection to third-parties who assist issuers in the preparation of prospectuses and other public statements.
June 01, 2011
Despite the best training, equipment, and preparation, it is an inevitable consequence of working in the industry that damages will happen. When they do, and when they cannot be resolved without litigation, the prospect of giving a deposition can strike fear into even the most experienced witness.
May 24, 2011
Global-Warming Litigation Gets Frosty Reception at the Supreme Court - The Legal Intelligencer - It is often difficult to predict the outcome of Supreme Court cases. This is not because the individual justices are particularly fickle or inscrutable. The reason is quite simple: The cases that make it all the way to the Supreme Court are hard. The court does not usually intervene in a dispute unless at least two lower courts, each composed of smart jurists, answered the same legal question differently.
May 09, 2011
How secret is the settlement that you obtained with help from the court? Over the years, the answer in the 3rd U.S. Circuit Court of Appeals has been "not so secret" — even when you expressly provided for it to be secret. Because of the 3rd Circuit's recent decision in LEAP Systems Inc. v. MoneyTrax , settling parties with secrecy concerns now have a little more comfort.
May 04, 2011
Roadmap to social media for pharmaceutical companies - PharmaLive -
May 01, 2011
Two Looks at the Insurance Legal Landscape - The Insurance Research Letter - New York High Court: “Other Insurance”
Clause Relieves D&O Insurer of Obligation
to Share Defense Costs with CGL Insurer
April 18, 2011
All too often in today’s litigation environment, electronic discovery issues turn into expensive deathtraps that threaten to overwhelm the merits of the actual dispute between the parties. But prepared litigants can and should take measures to avoid the “gotcha” pitfalls attendant to e-discovery long before the terabytes have been put through the thresher.
April 06, 2011
In Matrixx Initiatives, Inc. v. Siracusano, a unanimous Supreme Court declined to adopt a bright-line rule that would have made a drug company’s failure to disclose adverse event reports material only if the reports were statistically significant. Instead, the Court reaffirmed the fact sensitive standard it adopted more than two decades ago: an omission is material under the securities laws only if there is a ''substantial likelihood that the disclosure of the omitted fact would have been viewed by the reasonable investor as having significantly altered the ‘total mix’ of information made available.''
April 01, 2011
Bid Rigging In The Crosshairs - Construction Today -
April 01, 2011
IMPLICATIONS OF THE GENZYME DECISION: LOSS UNDER A D&O POLICY - PLUS Journal - Recently, in Genzyme Corp. v. Federal Insurance Co., 2010 WL 3991739 (1st Cir. 2010), the U.S. Court of Appeals for the 1st Circuit construed the definition of loss in a D&O policy and a so-called “bump-up” exclusion that precluded coverage for claims seeking an increase or “bump-up” in the consideration for the company’s securities.
March 30, 2011
On February 17, 2011, U.S. District Judge Richard J. Holwell in the Southern District of New York entered an order In re Vivendi Universal, S.A. Securities Litigation, 02-5571 (S.D.N.Y. Feb. 22, 2011), that dramatically reduced the potential amount of a plaintiff's jury verdict in a securities class action under section 10(b), originally estimated at approximately $9 billion.
March 24, 2011
D&O Liability: Vivendi – The Multi-Billion Dollar Impact of Morrison on Foreign-Cubed Securities Litigation - Insurance Coverage Alert! - On February 17, 2011, U.S. District Judge Richard J. Holwell in the Southern District of New York entered an order in In re Vivendi Universal, S.A. Securities Litigation, 02-5571 (S.D.N.Y. Feb. 22, 2011), that dramatically reduced the potential amount of a plaintiff’s jury verdict in a securities class action under section 10(b), originally estimated at approximately $9 billion.
March 11, 2011
Hold ’Em or Draw: The Strange Case of U.S. Enforcement Efforts Against Internet Gambling and Peer-to-Peer Poker - White Collar Crime Report - While federal and state legislators around the nation parse bills to regulate Internet poker, federal prosecutors have been quietly forfeiting Internet gaming proceeds under federal forfeiture statutes. These efforts follow several notable recent prosecutions of individuals for dealing with Internet gaming proceeds.
March 09, 2011
New York High Court: "Other Insurance" Clause Relieves D&O Insurer of Obligation to Share Defense Costs with CGL Insurer - Insurance Coverage Alert! - In Fieldston Property Owners Ass’n, Inc. v. Hermitage Ins. Co., Inc., 2011 NY Slip Op. 01361 (Feb. 24, 2011), the New York Court of Appeals ruled that a D&O policy’s excess “other insurance” clause relieved the D&O insurer of any obligation to reimburse a CGL insurer for defense costs incurred in connection with two underlying tort actions. In Fieldston, Hermitage Insurance Company issued an occurrence-based CGL policy to Fieldston Property Owners Association. Federal
March 01, 2011
On February 23, 2001, the Pennsylvania Supreme Court held that Pennsylvania's attorney-client privilege operates as a ''two-way street'' and protects confidential communications from client-to-attorney as well as communications from attorney-to-client. See Gillard v. AIG Ins. Co., No. 10 EAP 2010 (Pa. Feb. 23, 2011). The Court's decision marks the end of lingering uncertainty that has existed in Pennsylvania regarding the scope of attorney-client privilege - uncertainty that was sharply brought into focus by the Pennsylvania Superior Court's May 2007 decision in Nationwide Mut. Ins. Co. v. Fleming, 924 A.2d 1259 (Pa. Super. Ct. 2007). There, the Superior Court construed the Pennsylvania privilege statute narrowly and held that only communications from client-to-attorney (and not attorney-to-client) were privileged.
February 17, 2011
Construction Defect: New Jersey Appellate Division Leaves the Door Open for Continuous Trigger in Construction Defect Cases - Insurance Coverage Alert! - Over the past decade, courts across the country have delivered countless number of decisions on the scope of liability coverage for underlying construction defect claims. Most of these decisions focus on whether claims of faulty workmanship constitute an occurrence, and if so, whether the business risk exclusions apply to preclude coverage. Just as important, but often overlooked, is the issue of trigger.
February 14, 2011
‘Bad Vehicles’ Could Cause Crash in Class Actions - The Legal Intelligencer - In U.S. Supreme Court parlance, a "bad vehicle" is a case whose factual or procedural posture exerts an adverse influence on the legal rule that the justices announce and apply. As we all know, the court does not issue legal rulings sua sponte. Rather, it can only decide specific cases selected from the pool of petitions seeking review at any given time.
February 09, 2011
The Preemptive Scope of the Vaccine Act: Must Unavoidable Damages be Determined on a Case-by-Case Basis? - Life Sciences Alert! - On January 11, 2011, the Superior Court of Pennsylvania decided Wright v. Aventis Pasteur, et al., 2001 Pa. Super. 9 (2011) in which it determined as a matter of first impression that the National Childhood Vaccine Act (Vaccine Act) does not preempt any design defect claim based on state law, but rather requires case-by-case inquiry to determine whether a particular vaccine’s side effects are unavoidable.
January 18, 2011
Adverse Incident Reports: How Many Is Too Many? - Life Sciences Alert - On January 10, 2011, the U.S. Supreme Court heard argument in the matter Siracusano v. Matrixx Initiatives, Inc., 585 F.3d 1167 (9th Cir. 2009), and suggested that some major changes may be in store for pharmaceutical companies which could forever alter how they handle adverse reports.
January 10, 2011
U.S. Supreme Court Likely to Continue Robust Free Speech Protection - The Legal Intelligencer - Each year, the Supreme Court considers several cases testing the contours of the First Amendment's protection of speech. The justices' enthusiasm for these cases should not be surprising. The free speech guarantee is a core element of our country's founding spirit and calls to protect dissident voices appeal to our visceral aversion to tyranny. In addition to those lofty principles, the underlying facts of
November 30, 2010
Third Circuit Sends Mixed Messages on Class Action Settlements - The Legal Intelligencer - The Third Circuit has issued three decisions, within a three-month span, about class
action settlements. The three cases send different signals about the trial court’s role in reviewing
class action settlements.
November 29, 2010
Three Supreme Court Cases to Test “Presumption Against Preemption” - The Legal Intelligencer - The Supreme Court has recognized several species of preemption, though the
categories tend to overlap. “Express” preemption occurs when Congress precludes state
regulation in a particular area by announcing such an intention in the text of a statute.
November 15, 2010
The costs associated with the discovery of electronically stored information (ESI) continue to increase at rates unknown outside of the healthcare industry. While much of the discussion regarding costs centers on those associated with accessing, reviewing and producing ESI, an oft-overlooked but (in many cases) significant driver of the high price of discovery are the costs associated with preserving ESI.
November 01, 2010
The Difficulty in Certifying a Class Action Against Drug Companies - Life Sciences Alert! - Three cases decided over the past few months demonstrate the difficulty with certifying class actions by third-party payors (TPPs) against drug companies.
October 22, 2010
Investigational Devices and the Defenses that Protect Them - Cozen O'Connor Paper -
October 01, 2010
Stay Off the Hook for TCPA Claims - Law.com - Automatically dialing cell phones could land your company in court and cost you millions, with a growing number of
cases alleging violations of the Telephone Consumer Protection Act (TCPA) ...
September 30, 2010
Consent to Settlement Agreement May Not Bar Negligence Claim - The Legal Intelligencer - In Guido v. Duane Morris LLP , the New Jersey Supreme Court held in a June 8 opinion that a client's consent to settlement does not necessarily bar a malpractice action arising from that settlement. The court also held that the client need not seek to vacate the underlying settlement agreement as a prerequisite to the malpractice action. In so ruling, the New Jersey Supreme Court pulled back from an earlier
September 30, 2010
Maryland Federal Court Imposes Sanctions for Egregious eDiscovery Violations - Insurance Coverage Alert! - In Victor Stanley, Inc. v. Creative Pipe, Inc., 2010 U.S. Dist. Lexis 93644 (2010 D. Maryland Sept. 9, 2010), the United States District Court for the District of Maryland imposed sanctions for some of the most egregious eDiscovery misconduct ever reported in any decision. The court entered a default judgment, awarded attorneys’ fees and costs allocable to spoliation of evidence. Additionally, the court directed one of the defendants to be “imprisoned for a period not to exceed two years”
September 29, 2010
The Second Circuit Issues an Important Decision Regarding the Scope of the Bespeaks-Caution Doctrine - Securities and Financial Services Litigation and Securities Regulation Alert! - In a recent decision, the United States Court of Appeals for the Second Circuit made clear that the bespeaks-caution doctrine applies to forward-looking statements only and not to characterizations that communicate present or historical facts. Any company that makes public statements should take heed. Disclosures about risks will cover forward-looking statements; but where a plaintiff can show that an allegedly false or misleading statement pertains to present or historical facts,
August 30, 2010
This article addresses the drafting and interpretation of a provision found in all leases: the ''default provision.'' Specifically, this article provides an analysis of the ultra-subtle and ''age-old distinction'' between the ''conditional limitation'' and the ''condition subsequent'' (the latter sometimes referred to as a ''condition''). The U.S. District Court for the Eastern District of New York has noted that, when it comes to distinguishing between these two types of default provisions, New York courts have been ''far from consistent.''
July 20, 2010
National Australia Bank—Not the Last Word on Foreign-Cubed Securities Litigation - Insurance Coverage Alert! - In a recent decision by Justice Antonin Scalia in Morrison v. National Australia Bank (“NAB”) (June 24, 2010), the U.S. Supreme Court answered a question with which lower courts have struggled for more than 40 years—whether section 10(b) of the Securities and Exchange Act of 1934 (the “Exchange Act”) provides a cause of action to foreign plaintiffs suing foreign and American defendants for misconduct in connection with securities traded on foreign exchanges—so called foreign-cubed litigation.
July 14, 2010
In three decisions issued on June 24, 2010, the Supreme Court of the United States limited a favorite tool of prosecutors—the honest services statute—to its ''solid core.'' Justice Ginsburg, delivering the opinion of the Court in Skilling v. U.S., narrowed the Fifth Circuit’s broad interpretation of 18 U.S.C. §1346, which criminalizes ''a scheme or artifice to defraud another of the intangible right of honest services,'' and remanded the case.
July 09, 2010
3rd Circuit Case Illustrates Certification Procedure's Efficiency - The Legal Intelligencer - Recently, the 3rd U.S. Circuit Court of Appeals invoked the little used procedure of “certification” of questions to the state Supreme Court to clarify an important issue of state law. The use of the certification procedure had the dual effect of providing the court and parties to the action an efficient method for resolution of pivotal and undecided state law issues while simultaneously reminding
July 08, 2010
Is a hedge fund behind that plaintiff? - CFO Zone - Many legal claims ‐ both legitimate and frivolous ‐ never make it to the court room simply because of the expense of litigation. But a new trend in third‐party litigation financing is changing that for some commercial plaintiffs by providing a funding source to assist with litigation expenses in exchange for a cut of a successful award or settlement. The principle source of this money is hedge funds, as they are finding certain
June 07, 2010
D & O Insurance: Limiting Attorneys' Fee Awards in Derivative Suits - Insurance Coverage Alert! - On May 6, 2010, the Delaware Court of Chancery approved the settlement of a derivative action captioned In re Cox Radio, Inc. Shareholders Litigation, No. Civ. A. 4464-VCP, and ruled on plaintiffs' attorneys' application for a fee award. The court's decision on the fee award may have a material impact on directors and officers ("D&O") insurers' coverage analysis with respect to such awards.
June 01, 2010
Increased Scrutiny of Reverse Payment Settlements - The Legal Intelligencer - Two recent opinions suggest a greater willingness on the part of the federal judiciary to scrutinize more closely so-called “reverse payment settlements” that have once again become prevalent in the pharmaceutical industry.
Reverse payment settlements are entered into by a brand-name drug manufacturer and one or more generic drug manufacturers to resolve patent litigation triggered by the generic These
May 27, 2010
Threading the 'American Needle': The Supreme Court Adopts a New Standard of Concerted Action Under the Sherman Act - Litigation Alert! - In a unanimous decision likely to transcend its unique factual background, on Monday, the United States Supreme Court in American Needle, Inc. v. National Football League, et al., established a new test for determining whether related parties are single entities for purposes of establishing an agreement, combination or conspiracy in violation of Section 1 of the Sherman Act.
May 06, 2010
Dram Shop Liability: The Exposure is Greater Than You Think - Cozen O'Connor Whitepaper - A sporting event between historic rivals, a concert given by a major pop star, a bar or
restaurant at which one celebrates a birthday, new job, or a dinner out, and a banquet hall hosting
a wedding, anniversary, or office party.While these venues often host exciting and celebratory events, their commonalities, all too often, combine to result in unfortunate and, sometimes, tragic
May 03, 2010
Colorado Legislature Poised to Alter Landscape of Insurance Coverage for Construction Defects - Insurance Coverage Alert! - Later this week the Colorado State Legislature is expected to pass HB 1394, a bill that will dramatically change the insurance coverage available for construction professionals arising out of faulty construction. The stated purpose of HB 1394 is to reverse General Security Indem. Co. of America v. Mountain States Mut. Cas. Co., 205 P.3d 529 (Colo. App. 2009), which held that claims for damages arising from poor workmanship, standing alone, do not allege an accident that constitutes a
April 11, 2010
INDEMNITY AND INFIDELITY: ADVANCEMENT OF DEFENCE COSTS IN ACTIONS - Canadian Business Law Journal - Indemnification of corporate directors refers to the financial protection provided by the corporation to its directors.1 It shields directors from expenses and liability of legal proceedings alleging breaches of their duty to the corporation.2 This is of concern for directors because, in addition to the potential liability they face if found blameworthy, the cost of funding an adequate defence can be staggering.
April 01, 2010
Winning The Bid - Construction Today Quarterly - With the proliferation of public / private partnership, the potential launching of the PPIP program as part of the Federal Government’s Stimulus Plan and the need to plug financing holes with public funds on what in the past were exclusively privately funded deals, there are many pitfalls for the unwary developer / owner. One of the more unique aspects of publicly funded projects (whether in whole or in part) is the selection of contractors.
April 01, 2010
Who's At Fault? - Construction Today Quarterly -
March 22, 2010
At this point in the discovery revolution, there is no question that savvy litigants have become sensitive to the need to preserve documents and, particularly, electronically stored information (ESI). While the cost of even marginal preservation steps can be quite high, the failure to act promptly can lead to the unintentional loss of documents (through the recycling of disaster recovery backups or the operation of automatic deletion routines in e-mail mailboxes) and unpleasant litigation consequences.
February 22, 2010
How Many Accountants Does It Take to Go to Trial? - The Legal Intelligencer - I was going to trial. My client was a mid-sized business. I needed to prove damages, and show that my client's internal controls were appropriate. The budget was tight — as it always seems to be — but I had an ace in the hole. My client was audited.
February 02, 2010
Revisiting Zubulake: Discovery Sanctions in the e-Discovery Context - Commercial Litigation Alert! - On January 11, 2010, Judge Scheindlin, who authored the groundbreaking Zubulake opinions, issued a new opinion regarding sanctions in eDiscovery.1 Pension Comm. of the Univ. of Montreal Pension Plan v. Banc of Am. Scs., 2010 U.S. Dist. Lexis 1839 (S.D.N.Y. Jan. 11, 2010), involved an action against defendants who were connected to a hedge fund that lost money. These defendants sought sanctions against the plaintiffs for their alleged failure to
properly preserve and produce documents,
January 27, 2010
E-Discovery: Revisiting Zubulake: Discovery Sanctions in the e-Discovery Context - Insurance Coverage Alert! - On January 11, 2010, Judge Scheindlin, who authored the groundbreaking Zubulake opinions, issued a new opinion regarding sanctions in eDiscovery.1 Pension Comm. of the Univ. of Montreal Pension Plan v. Banc of Am. Scs., 2010 U.S. Dist. Lexis 1839 (S.D.N.Y. Jan. 11, 2010), involved an action against defendants who were connected to a hedge fund that lost money. These defendants sought sanctions against the plaintiffs for their alleged failure to properly preserve and produce documents,
January 12, 2010
Washington Supreme Court Affirms $8,000,000 Discovery Sanction - Insurance Coverage Alert! - In Magaña v. Hyundai Motor America, et al., 220 P.3d 191, (Wash. 2009), the Washington Supreme Court affirmed a default judgment against a car manufacturer for $8,000,000 for discovery violations. The Supreme Court’s holding was
supported by evidence of willful efforts to frustrate and undermine “truthful pretrial discovery efforts.”
December 18, 2009
Much has been written about the Second Circuit’s decision (by a panel that included now-Associate Justice Sonia Sotomayor) to affirm the district court’s grant of summary judgment to the City of New Haven in Ricci v. DeStefano. Ricci was subsequently reversed by the U.S. Supreme Court and became a major topic of discussion during Justice Sotomayor’s confirmation hearing. Commentators and senators cited Judge Jose Cabranes’ forceful dissent from the Second Circuit’s decision not to grant a rehearing en banc, particularly his comment that the case raised “novel questions of constitutional and statutory law” that the Second Circuit’s decision had “failed to grapple with.”
December 15, 2009
In House Counsel Sanctioned for Failure to Issue Litigation Hold - Insurance Coverage Alert! - In Swofford v. Eslinger, ___ F. Supp. 2d ___, 2009 WL 3818593 (M.D. Fla. Sept. 28, 2009), the United States District Court for the Middle District of Florida imposed severe sanctions for failure to preserve electronically stored information.
December 01, 2009
Fessing Up to Facebook: Recent Trends in the Use of Social Network Websites for Civil Litigation - CANADIAN JOURNAL OF LAW AND TECHNOLOGY - In December 2008, after several failed attempts to serve a couple with court documents by email by and text messaging their mobile phones, an Australian lawyer won the right to serve a default judgment by posting the terms of the judgment on the defendants’ Facebook “Wall.” In a ruling that appears to be the first of its
kind anywhere in the world, Master Harper of the Supreme Court of the Australian
November 05, 2009
On March 13, 2008, the Tenant Protection Act (also known as Local Law 7 of 2008; hereinafter Local Law 7) took effect, giving tenants yet another avenue to pursue ''landlord harassment'' claims. The issues and inconsistencies raised by Local Law 7 are subtle, and could easily be overlooked by even the most careful of practitioners.
September 08, 2009
Given the present state of the economy, employers are looking for ways to reduce costs and overhead. One way a company may choose to save money is to classify current workers or new hires as independent contractors rather than employees, but misclassifying employees - even unintentionally - can prove to be extremely expensive for employers, opening them up to administrative fines and penalties as well as costly private lawsuits.
September 07, 2009
Before Facing a Lawsuit: What Every Establishment Needs to Know - Cozen O'Connor Presentation -
August 10, 2009
Despite recent news that the economy may have finally bottomed out, businesses small and large continue to look for ways to reduce costs. One method has been to retain independent contractors in lieu of employees and to reclassify current employees as independent contractors.
July 09, 2009
Chinese Drywall Litigation - Subrogation Whitepaper - In a prior Alert, Defective Drywall: The Not‐So‐Great Wall of China1, we discussed the reported problems with Chinese‐manufactured drywall (“Chinese drywall”). This whitepaper provides an overview of pending litigation
arising out of the issues associated with Chinese drywall. From 2004 through 2006, the housing boom and rebuilding efforts necessitated by various hurricanes led to a shortage of construction materials. As a result, U.S. builders and suppliers
July 07, 2009
The Supreme Court’s recent decision in District of Columbia v. Heller held that a municipal ban on handguns is unconstitutional under the Second Amendment, but left open the possibility of reasonable regulations on firearms. Given the outrageous levels of firearms-related violence in many urban areas—violence that disproportionately affects communities of color—the question of what constitutes a reasonable regulation should be an issue of major concern to civil rights activists and lawyers. This
article evaluates Heller in light of these issues, and argues in favor of a general presumption that local legislatures are best situated to balance the costs and benefits of firearms regulations. Moving forward, municipalities should be afforded broad discretion in enacting such regulations, consistent with the Court’s decision in Heller.
July 01, 2009
Are You Ready For The New A1A Contract Documents - Structure Magazine -
June 22, 2009
Times are tough. Employers in the hotel and hospitality industries are not immune from the impact that the weakened economy has on their personnel issues. In order to minimize the legal tsunami that can result from economy-driven employment decisions that are made, it is critical for hotel and hospitality employers to take appropriate steps to minimize potential legal exposure.
May 01, 2009
2009 Property Insurance Directory - Global Insurance Group - We are pleased to enclose Cozen O'Connor's Global Insurance Group 2009 Property Insurance Directory, which identifies our principal property insurance lawyers in each of our offices with listings of specific areas of expertise those attorneys have in the property insurance area. I am sure you will agree that this is an impressive group of property lawyers, likely the largest in the U.S., with both breadth and depth of experience in all fields of interest in property claims.
April 01, 2009
PREEMPTION IS NOT DEAD: A Fresh Look at Wyeth v. Levine in Context - Cozen O'Connor Whitepaper - A White Paper analyzing the state of the preemption doctrine in the wake of the Supreme Court’s recent decision in Wyeth v. Levine 173 L. E. 2d 51 (Mar. 4, 2009)
April 01, 2009
An Arbitration Panel's Authority to Award Attorney's Fees, Interest and Punitive Damages - Rutgers Conflict Resolution Law Journal -
April 01, 2009
Commentary: The Flight to Access - Risk & Insurance - With more and more frequency, possibly due to personnel cutbacks and more attention focused on legitimate security concerns,
courts are seeing actions brought by disabled
passengers alleging discrimination,
exacerbation of a physical injury, mental
anguish and distress, and even punitive
damages as a result of what has been
perceived as either the inability or
unwillingness to deal with the specific needs
of disabled passengers.
April 01, 2009
Tips for Expert Witnesses - Structure Magazine -
March 24, 2009
The topic of climate change has become a significant public policy issue that has generated substantial discussion, controversy and debate. Recently, Steven Napolitano and Lincoln Wilson published an arresting article in Environmental Law 360 called “Why Climate Suits May not be ‘Next Big Thing.’”
March 17, 2009
Construction Defects - Colorado Court of Appeals Rules Faulty Workmanship is Not an Occurrence - Insurance Coverage Alert! - On February 19, 2009, the Colorado Court of Appeals
held that a claim for damages arising from poor
workmanship, standing alone, does not allege an
accident that constitutes an occurrence, regardless of the
underlying legal theory pled. General Security Indemnity
Company of AZ v. Mountain States Mutual Cas. Co. (Case Nos.
CA07CA2291 & 07CA2292, February 19, 2009).
February 27, 2009
On Jan. 30, 2009, the U.S. Food and Drug Administration announced that its criminal division and the U.S. Department of Justice were pursuing a criminal investigation of Peanut Corporation of America (PCA). This investigation comes on the heels of one of the largest food poisoning According to U.S. Center for Disease Control statistics, 654 people across 44 states have been infected with Salmonella Typhimurium from ingesting peanut-based products originating from PCA’s Blakely, Ga., facility.
February 01, 2009
Under the new Obama administration, Congress is expected to pass legislation to inject much needed capital into government projects. However, in the current economic climate, the construction industry landscape is a potential legal minefield and contractors should proceed with caution. In the words of Cozen O'Connor's F. Warren Jacoby, ''With the high cost of litigation, few contractors can weather more than one significant claim, irrespective of whether or not they are liable.''
February 01, 2009
BIM! You've Been Sued! - STRUCTURE - It has not happened yet. To date, no law- suit has been filed based upon the use of
Building Information Modeling (BIM) in a
project. But it will. It's only a matter of time.
Up until recently, BIM has mostly been used
as a design tool in experimental, high profile,
complex construction projects like the Freedom
Tower at the former World Trade Center site,
the London Hospital project, and refurbishment
January 28, 2009
Dangerous Liaisons: What to Do Before Things Go Wrong - Constructor Magazine - An indemnification or hold- harmless clause in a construction contract shifts liability and protects parties involved in the agreement.
Take a typical scenario: an owner hires an architect and a general contractor to design and build an addition. The general contractor hires various subcontractors. During construction, a collapse occurs, causing extensive damage and injuries. The injured workers file lawsuits against the owner, architect, GC and various subs.
January 09, 2009
Avoiding Danger to Business Secrets in a Bad Economy - Law.com - Bad economic times create opportunities for strong companies to poach good employees from a weakened competitor -- a signal for employers to aggressively protect trade secrets.
January 01, 2009
Flying Through Squabbles of the Turbulent - Risk and Insurance Online -
January 01, 2009
To Spy or not to Spy - HR Advisor - To spy or not to spy on your own employees? That is the question facing many employers today. And, increasing numbers of companies—facing concerns ranging from data security to trade secrets—are saying “yes” to employee surveillance. Here’s a look at the current surveillance landscape, the case for watching your employees, and how you can protect yourself from claims of improper monitoring. the stats
December 08, 2008
Times are tough. The weakened economy has spared few industries, causing companies big and small to re-examine their personnel needs and make tough decisions. hard times require businesses to strengthen their resolve to avoid the legal tsunami that can result from such economy-driven decisions. This article sets forth the best practices to help your company minimize its potential exposure in five primary areas.
November 24, 2008
Northern District of California Concludes Complaint Potentially Seeks Damages... - Insurance Coverage Alert! - The United States District Court for the Northern District of California recently denied an insurer’s motion to dismiss, reasoning that class action claimants potentially sought damages because of bodily injury, despite the fact that the claimants’ “complaints . . . did not seek damages for physical injury.” Plantronics, Inc. v. American Home Assurance
Co., No. C 07-6038 PVT, 2008 U.S. Dist. LEXIS 88921 at * 4 (N.D. Cal. Oct. 20, 2008).
November 21, 2008
Georgia Court of Appeals Applies Exclusion M to Contaminated Bread Claims - Insurance Coverage Alert! - The Georgia Court of Appeals recently upheld an
insurer’s denial of coverage for claims related to use of contaminated bread through application of Exclusion m, the impaired property exclusion. See Lavoi Corp. v. National Fire Ins. of Hartford, 666 S.E.2d 387, 395 (Ga. Ct.
November 01, 2008
The Admissibility of Other Incidents in Aviation Products Liability Cases - International Association of Defense Counsel - Typical law school evidence courses include only a cursory examination of the admissibility of “other acts”,1 and even then, it is usually in the context of criminal cases under FED R. EVID. 404(b). And, indeed, the federal rules and case law are well-established when dealing with the government’s efforts to use evidence of other acts against a criminal defendant. But in civil matters—products liability cases in particular—the rules are less clear. So it is
November 01, 2008
The cover of a recent issue of Philadelphia magazine featured a dear departed lawyer in a casket, his arm still clutching a briefcase, with the headline ''Who Killed the Philadelphia Lawyer?'' The story posed the question whether ''the quaint notion'' of the Philadelphia lawyer is dead. To the contrary, while a number of local firms seem to be sprouting offices around the globe, they are also heavily involved in both high-and-low-profile pro bono representation in the greater Philadelphia area and beyond.
October 07, 2008
A group of consumers sued a bottled water manufacturer because its water came from purified municipal sources and not the snow-topped mountains featured on its label. Another seeks damages because a guacamole dip doesn’t contain enough avocados. A third sues a satellite radio network for not providing entirely commercial-free programming.
October 01, 2008
Lettuce and spinach tainted with E. coli creates panic throughout the country. Raw onions contaminated with hepatitis kill four and sicken nearly 700. Salmonella-laden tomatoes make hundreds ill and raise fears of bioterrorism. While this may sound like something out of a bad horror movie, foodborne illness and the devastation it leaves behind – both in terms of human suffering and costs to our economy – should not be taken lightly.
October 01, 2008
International Litigation: The U.S. Jurisdiction To Prescribe and the Doctrine Of Forum Non Conveniens - The Federal Lawyer - Since the 1945 decision by Judge learned hand in United States v. Aluminum Co. of America (colloquially known as the "Alcoa" case), it has become well-established law that the Sherman Antitrust Act-legislation that was adopted over 100 years ago-applies to and prohibits conduct in foreign countries if that conduct has an illegal "effect" in the United States. The very important issue today is the extent to which the
September 30, 2008
"C.O.O.L." Rule - Insurance Coverage Alert! - On September 30, 2008, the U.S. Department of
Agriculture’s (“USDA”) rule for mandatory country
of origin labeling (“COOL”) for certain covered
commodities went into effect. See Mandatory Country of Origin Labeling of Beef, Pork, Lamb, Chicken, Goat Meat, Perishable
Agricultural Commodities, Peanuts, Pecans, Ginseng, and Macadamia Nuts, 73. Fed. Reg. 45106 (Aug. 1, 2008) (to be codified at 7 C.F.R. pt. 65).
September 01, 2008
The Shadow Knows No Bounds - Risk & Insurance -
September 01, 2008
Money Laundering Defense After Santos And Regalado Cuellar - NACDL's Champion Magazine - For some time, prosecutors and money laundering
charges have had a romantic relationship. For many years, the breadth of the statute was matched only by its draconian sentencing guideline ranges. In 2001, the Sentencing Commission amended U.S.S.G. § 2S1.1 to tie offense levels for money laundering more closely to the underlying conduct that was the source of the criminally derived funds.2 Many expected that this amendment would eviscerate the plea
August 25, 2008
Navigating the Wild West of E-Discovery in PA State Court - The Legal Intelligencer/PA Law Weekly: e-Discovery Supplement - Much has been written and said about what attorneys must do to comply with their obligations to preserve and produce electronically stored information (ESI) in federal court. Significantly less attention has been given to the same obligations in state court, despite the fact that ESI is as relevant in state court as in federal court.
August 06, 2008
While much commentary has been devoted to the groundbreaking holding of D.C. v. Heller — that the Second Amendment confers an individual right to "keep and bear Arms" for purely private purposes — too little attention has been paid to what the court did not decide and the significant uncertainties that remain in Second Amendment jurisprudence.
August 01, 2008
As we have passed the mid-way point of 2008, it is clear that wage and hour lawsuits continue to dominate a large portion of all new cases filed in court each day. This noticeable surge will continue, if not further increase, as current and former employees claim in increasing numbers that they have been classified improperly as ''exempt'' employees and thus are owed overtime premium pay.
August 01, 2008
The AIA Contract Documents... Not the Only Game in Town - Structure Magazine -
August 01, 2008
Risk Management 101 - BEST'S REVIEW - The value of customer data is recognized by all businesses. Each piece of data brings power but also risks. You can use it, sell it, update it, ignore it - even and here's the catch - lose it.
If your business possesses personal, identifiable, information such as Social Security numbers of dates of birth, customer account information such as account numbers and expiration dates, or medical records, then you have a legal duty to maintain the privacy of that information.
July 10, 2008
Construction Contract Pitfalls - ForConstructionPros.Com - Whether you have a high-priced lawyer on retainer, a lawyer friend, or no legal advisor whatsoever, before you sign on any dotted line - you must personally read the contract - the whole contract - thoroughly understand it, and ensure you can live up to its terms. Many believe that as long as the business terms are
acceptable, they do not have to pay attention to all the legal "mumbo jumbo." Nothing could be further from the truth. There are a number of boilerplate terms in construction
July 08, 2008
Hiring the Right Subcontractor for the Job - ForConstructionPros.com - A general contractor is like the head coach of a football team: the buck stops here. When there are problems on a construction project, the owner expects the contractor to fix them.
Sometimes a contractor can compel the subcontractor who caused the problem to fix it. For example, if the HVAC system isn't working properly, the contractor can have the HVAC subcontractor patch the leaking ducts or re-balance the system. But sometimes it doesn't
July 01, 2008
Recipe for Disaster - BEST'S REVIEW - Propelled by globalization, outsourcing and offshoring by American companies, the global food network has morphed into a complex, complicated system - ripe for food contamination claims of epic proportions, with insurers bearing the ultimate financial burden.