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Lockheed Martin v. United States: The Effect of Indirect Recovery Under CERCLA

CERCLA Section 114(b) prohibits the double recovery of environmental response and cleanup costs by a Potentially Responsible Party (“PRP”).[1]  Yet, PRPs that pay cleanup costs and are reimbursed for such costs – for instance with insurance proceeds – may also attempt to recover from a Co-PRP under CERCLA.

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Stucco or EIFS: Is There a Difference in Keeping the Water Out?

One of the defects du jour we have been seeing in our practice the last few years relates to exterior finishes on buildings, primarily claims of excess cracking and/or debonding of stucco resulting in water intrusion issues.  Initially, plaintiffs were content with remedying the alleged defects in the stucco by location; however, more and more experts are now calling for the complete replacement of exterior wall systems.  Recently, we  had a case where an expert was claiming the stucco had to be completely removed and replaced on all four faces of a hi-rise residential condominium because it was debonding (despite the fact it took a jackhammer to even loosen the stucco).  We have also seen proposals to replace stucco with an Exterior Insulation and Finish System (“EIFS”), a synthetic product that looks like stucco.  However, EIFS is not a perfect solution and has problems of its own.

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Pregnancy Discrimination and the Right to Work Guidance

With more than 70 percent of omen with children currently in the workforce, pregnancy discrimination is the fastest growing area of discrimination cases in the United States.  The U.S. Equal Employment Opportunity Commission (EEOC) asserts that over the last 10 years pregnancy discrimination charges filed with the EEOC have increased over 35 percent. While many pregnant workers are able to continue working throughout their pregnancy, fully understanding the legal rights afforded to pregnant workers under the applicable laws, including the Pregnancy Discrimination Act (PDA) and the Americans with Disability Act (ADA), is necessary for the full protection of our pregnant workers, especially those workers who experience pregnancy-related complications.

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Ten Months Later: Contractual Limitations Periods in the Post-Heimeshoff Era

The December 16, 2013, decision issued by the United States Supreme Court inHeimeshoff v. Hartford Life & Acc. Ins. Co., 134 S. Ct. 604 (2013), spread holiday cheer throughout the insurance industry. In Heimeshoff, the Court unanimously held that contractual limitations periods contained within employee benefit plans covered by ERISA are generally enforceable even when the contractual limitation period begins to run before a participant’s cause of action under 29 U.S.C. § 1132(a)(1)(b) has accrued. See Heimeshoff, 134 S. Ct. at 608.

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Obesity as a “Disease”: Potential Legal Effect and Practical Tips for Employers and Litigators

On June 18, 2013, the American Medical Association (AMA) made a splash when it adopted a policy that recognizes obesity as a “disease.” AMA News Room, AMA Adopts New Policies on Second Day of Voting at Annual Meeting(June 18, 2013). Although the AMA is not vested with any lawmaking authority and may not have as much influence as it once did, it is still the largest physician organization in the United States. Scott Hensley, AMA Says It’s Time to Call Obesity a Disease, NPR (June 19, 2013). As such, the AMA and its policies still carry a lot of weight—no pun intended—in the medical field and beyond. Id. Seealso Nanci Hellmich, Medical Group Recognizes Obesity as a Disease, USA TODAY (June 19, 2013). At this time, it is not clear what effect this particular AMA decision will have, if any, but it may affect specific areas of the law. So what should litigators and employers, in particular, expect?

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Colorado Federal Court Considers Motion to Dismiss in Knee Replacement Case

Recently, a Colorado federal court considered a motion to dismiss in a medical device product liability action arising from a plaintiff’s allergic reaction to a cobalt and nickel knee replacement system. See Haffner v. Stryker Corp., et al, No. 14-CV-00186, 2014 WL 4821107 (D. Colo. Sept. 29, 2014) (unpublished).Observing that there appeared to be “few medical device tort cases in Colorado,” the court addressed the defendant’s motion to dismiss the plaintiff’s four causes of action: strict product liability, negligent product liability, the breach of implied warranties of merchantability and fitness, and the breach of an express warranty. 

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Technology Companies Gain High-Speed Access to Washington D.C. by Spending Millions on Lobbying

In the past, the technology industry largely steered clear of the nation’s capital.  Recently, however, the political playing field has grown to include some of the biggest, well-known Silicon Valley technology companies—and they are willing and able to pay the price to protect their interests on both the federal and state level. Sean Parker, one of the founders of Napster has said, “I think we’re starting to come into a realization of our own power and of our own capability, not just as innovators and technology pioneers, but also in a political sense.”  Norimitsu Onishi, Tech Industry Flexes Muscle in California Race, The New York Times (Feb. 5, 2014). 

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Gun Laws and Workplace Violence: Challenges for Employers

Recently, a disgruntled former UPS employee, whose employment had been terminated, opened fire at the UPS facility in Alabama, killing two employees before killing himself.  Tragically, not a day seems to go by without some media report of gun violence in this country. While any level of gun violence, where innocent lives are taken, stirs contentious debate on the issue of the “right to bear arms,” gun violence at the workplace presents special challenges to employers aiming to prevent becoming a part of the statistic and the evening news.  The debate over who should carry guns and under what conditions or restrictions has created a platform for dialog concerning gun regulation and safety.  In response, many states have passed more comprehensive gun legislation, which may make it more difficult or easier for employers seeking to keep their workplace safe, depending on which side of the gun debate you are on.

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Using Modern Medical Evidence and the Keasbey Opinion to Defend Asbestos Coverage Suits

Carriers defending against asbestos claims—and possibly other long-tail claims such as those involving silica, benzene, and talc—would be wise to review the Keasbey case to identify strategies for limiting coverage.  Cont’l Cas. Co. v. Emp. Ins. Co. of Wausau, 871 N.Y.S.2d 48 (N.Y. App. Div. 2008) (Keasbey).  There, the court found that “one indisputable fact . . . to emerge from [the] medical evidence . . . is that actual injury . . . does not occur upon [initial] exposure to asbestos.”  Id. at 62.  This ruling, which has implications for trigger of coverage, nonproducts coverage, allocation, and corporate succession, has been underused by insurers litigating asbestos coverage issues, especially given that since the Keasbey trial, which was held in 2005, the medical evidence has become stronger that “bodily injury” does not occur at or soon after initial exposure.

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Fighting Fraudulent Joinder: Getting Your Case into Federal Court

Tort actions involving pharmaceuticals and medical devices usually involve state law claims, and therefore, diversity jurisdiction is often the only way to proceed in a federal court.  Plaintiffs, however, may join doctors, sales representatives, hospitals, or pharmacies as nondiverse defendants, or in some cases, they may even join multiple plaintiffs from several states to defeat diversity jurisdiction.  Because defendants most often prefer to litigate in federal courts, fighting the joinder of these nondiverse defendants is critical. 

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Negligence Claims for Defective, Non-Dangerous Products Do Not Belong in Ontario Tort Law

In the recent case of Arora v. Whirlpool Canada LP,  [2013] S.C.C.A. No. 498, the Supreme Court of Canada has refused leave to appeal the decision of the Ontario Court of Appeal which determined that plaintiffs cannot recover for pure economic loss resulting from the negligent design of a non-dangerous product.

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The State of Affirmative Action

On June 24, 2013, The Supreme Court dealt a quiet setback to the constitutionality of affirmative action by colleges and universities.  The decision in Fisher v. University of Texas at Austin was as eagerly anticipated as the decisions of the Court two days later in United States v. Windsor and Hollingsworth v. Perry, which were hailed as major victories for the gay rights movement.  At first glance, the Fisher decision seemed to sidestep the critical question on the use of race-conscious school admission policies.  In a 7-1 decision (Justice Kagan was recused from this case), the Justices remanded the case back to the lower courts for further consideration.  But, while declining to issue a decision, the Supreme Court made it harder for institutions to use affirmative action and other race-conscious policies to achieve diversity.    

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Achieving Lasting Diversity and Inclusion Initiatives

“I believe we get better results if our lawyers reflect the diverse nature of the communities with which they may be involved.  Their diversity makes them better able to connect with juries, judges and governmental bodies . . . diversity needs to be addressed daily.”  Thomas Sager, Senior Vice President and General Counsel of DuPont Legal quoted in Tom Forestier, Diversity at Law Firms in the Post-Recession Era, May 3, 2013,http://winstead.com/Knowledge-Events/Publications/99181/Diversity-at-Law-Firms-in-the-Post-Recession-Era.

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An Update on Discovery of Insurance Claim Files

The production of insurance claim files pursuant to requests for production of documents is a subject which is of keen interest to defense counsel.  Defense counsel typically assert that said insurance claims files are not subject to disclosure by virtue of the doctrines of attorney-client privilege and work product.  There have been a number of recent decisions regarding this important issue.  The purpose of this article is to discuss these doctrines and to provide instructive takeaway points for responding to discovery requests for disclosure of insurance claim files.

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Caution – Coverage Counsel’s File May Be Discoverable in Bad Faith Cases

In a bad faith lawsuit, the insurance company’s claims file is one of the first items requested in discovery by most plaintiffs’ attorneys.  On top of that, in spite of any objections raised by defense attorneys, most courts will require an insurer to produce the relevant and non-privileged portion of their file.  Documents that are frequently tuned over include those which underlie the insurer’s claims investigation and that support their denial of coverage. 

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Critical Path Method and Last Planner ® System: Different Sides of the Same Analytical Coin

As schedule methods continue to evolve to address greater detail and the influence of logistics, there are also emerging concepts in project delivery that are influencing the approach toward scheduling.  The widely used Critical Path Method of project scheduling has developed its own language with terms like “logic constraints” and  “finish-start relationships” that convey a small piece of the philosophy of the schedule and the interrelatedness of various activities.  Some parties to construction projects are exploring alternatives to more traditional roles by encouraging greater collaboration among the owner, designers, contractors, subcontractors and suppliers in an attempt to reduce waste and enhance value.

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The Fluidity of Liquidated Damages: Are They Enforceable In Your Jurisdiction?

Often, unexcused delays and breaches of contract for construction projects present difficult calculations of an aggrieved party’s actual damages.  Liquidated damages can provide a solution as a predetermined sum or formula that contracting parties agree shall be paid when delays or breaches occur.  Liquidated damages allow both parties to avoid some uncertainty, predict potential loss, and plan accordingly.  In construction practice, liquidated damages are typically a specified amount assessed to a contractor on a daily basis for every unexcused day that a project Liquidated damages provisions are regularly included in both private and public construction project contracts.  Both AIA A201-2007 General Conditions and ConsensusDOCS 200 provide that the waiver of consequential damages as specified in those documents does not preclude recovery of liquidated damages.  Accordingly, it is important to understand what a liquidated damages provision is, how to assess its validity, and the defenses that can be raised to enforcement even if the provision is valid on its face. 

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Class Action SLG: Warning from the U.S. Supreme Court: In Contracts, Preselect Your Forum Carefully

In commercial contracts, forum-selection clauses have become ubiquitous. Those clauses, after all, bring certainty.

When litigation actually ensues, however, a party might regret agreeing to the forum in the clause. Imagine if that litigant files suit in a different forum. Can the other party enforce the clause and move the case to the proper forum?

The U.S. Supreme Court finally settled that question, at least for federal purposes, in Atlantic Marine Construction Co., Inc. v. United States District Court for the Western District of Texas, 134 S. Ct. 568 (2013). The Supreme Court instructed lower courts to enforce the chosen forum “unless extraordinary circumstances unrelated to the convenience of the parties clearly disfavor a transaction.” 134 S. Ct. at 575.

Companies hoping to limit uncertainty in litigation now have a stronger friend in federal courts than ever before. Simply put, Atlantic Marine’s standard makes forum-selection clauses very difficult for a party to the contract to avoid.

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A Brief lnsight into the Nature of Toxic Exposure Cases Arguably every practitioner of workers' compensation law, both those that advocate for injured employees as well as those that aim to protect the interests of the employer/carrier, has at one time or another been presented with a claim that has forced him or her to question their chosen career path. No other work place injury so invokes that apprehension more than an injury resulting (allegedly) from the exposure to toxic substances.  However, it is not the multifarious aspects of a toxic exposure case that lead to the case's own toxicity, but rather it is the difficulty in realizing the nuanced complexities at the inception of  the case. Employer/Carriers and Claimants alike all too often handle toxic exposure cases in the same manner as they treat other accident/injuries, possibly leading to a deficiency in representation. Yet, any deficiency is not likely to owe its existence to a misunderstanding of prevailing law; instead, I would respectfully submit that it is the manner in which the law is applied to a certain set of facts that is the cause of the problem. It is with this in mind that I set out to document the most common errors in toxic exposure cases and, thereby, provide a practical roadmap for both parties in litigating these cases.  While this article is not meant to be (and, moreover, is not) an all-inclusive treatise on litigating toxic exposure cases2 , the purpose is to touch upon two aspects of the litigation work­up that are often the most cause for concern. Also, while this article contemplates the particularities of Florida toxic exposure cases, the principles can be applied across jurisdictional lines. view more
The Appellate Counsel at Trial

Any case worth taking to trial justifies a little forethought about a possible appeal.  What follows is a list of commonly overlooked trial matters that can make or break an appeal – and how to ensure it does not happen in your case.

* The pretrial order:  Most federal pretrial orders contain a recitation that the pleadings are amended “to conform with” the pretrial order.  This is not mere boilerplate.  Any claim or defense omitted from the pretrial order is no longer a part of the case, regardless of how often, or well, it was pled.  Conversely, any claim or defense in the pretrial order is now in the case, regardless of whether it was ever previously pled.  If the pretrial order’s statement of issues is unsatisfactory to you, you need to make a record of that fact, preferably in the order itself.

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Confidentiality in Arbitration: Beyond the Myth

Confidentiality has long been part of the mythology of alternative dispute resolution (ADR). That is to say, one of the apparent virtues of ADR is that its processes have been viewed as confidential.1

This aspect of the mythology has come under more scrutiny in recent years, particularly in the mediation context.2 This is not surprising considering the popularity of mediation3 and the centrality of confidentiality to the mediation process.4 Confidentiality was the primary  thrust  of  the  Uniform  Mediation  Act  (UMA),5   and  in  their supporting research, the UMA drafters took a hard look at the law of mediation confidentiality and found a much more nuanced picture than the mythology would suggest.

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To Hire or Not to Hire: Considerations in Retaining and Using Accident Reconstruction or Biomechanical Experts Properly

This article focuses on the practical considerations that an attorney should take into account when making the decision to hire and to retain an accident reconstructionist or biomechanical expert.  While certainly not exhaustive, the article covers the basic issues to consider when making such a decision, namely how soon should an attorney hire an expert, how an expert may assist with a case, factors to consider when making a hiring decision, and how to vet a potential expert.

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Duty and the Design Professional

Recent decision expands scope of duty owed to third parties claiming economic loss from design professional malpractice.

In the absence of a contract, to whom do design professionals owe a duty, and what is the scope of that duty in the context of third-party claims alleging economic loss?

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The Attorney-Client Privilege Applies When Rendering Advice During Business Negotiations

The Fifth Circuit recently reversed a district court’s decision not to allow the attorney-client privilege. In Exxon Mobil Corp. v. Hill, et al., No. 13-30830 (5th Cir. May 6, 2014), the Fifth Circuit permitted assertion of the attorney-client privilege for a memorandum from an attorney to a client in the course of business negotiations for a matter that had potential legal implications down the road.


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Money for Nothing: Recent Developments in Medical Monitoring

Plaintiffs bringing product liability or toxic tort lawsuits must typically show that use of a defendant’s product or exposure to a defendant’s chemical caused them to suffer an injury.  Some courts, however, have allowed plaintiffs without a present physical injury to recover costs for future “medical monitoring” for a latent disease related to an exposure to a defendant’s product or chemical.  These courts have found that medical monitoring is either a cause of action or a remedy for an existing tort. 

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Caps on Damages in Medical Malpractice Cases

The constitutionality of damage caps is an important issue for health-care providers, liability insurers, and attorneys who represent them.  Health-care provider groups and liability insurers see damage caps as an effective way of limiting their potential exposure, thereby making the cost of doing business more predictable.  However, states around the country continue to propose and to debate the need for damage caps as well as the constitutionality of the damage caps already in place.  These debates undermine the ability of legislatures to pass damage caps where they do not already exist and limit the effectiveness of the caps that are in place because health-care providers and liability insurers question whether the caps can be relied upon.

This article attempts to provide basic information about the nature of damage caps, a summary of the damage caps that are currently in place, and a summary of the most common constitutional challenges. 

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Build Relationships to Advance Women in the Law Better

To borrow a phrase, relationships matter.  We all know this in principle, but it is difficult to quantify meaningfully how much they matter.  The statistics on the status of women in law firms, however, may reveal something about the relationships that women lawyers have both inside and outside of their firms. 

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Reformation: Defenses in ERISA Individual Benefit Cases: <i>Reformation has recently emerged as a newly popular prayer for relief.  </i>

Reformation is defined as “[a]n equitable remedy by which a court will modify a written agreement to reflect the actual intent of the parties, usually to correct fraud or mutual mistake, such as an incomplete property description in a deed.  The actual intended agreement usually must be established by clear and convincing evidence.” Black’s Law Dictionary 1285 (7th ed. 1999).

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Broker Liability, Litigation, and Negligent Hiring: It’s What You Know AND Who You Hire

When it comes to tort liability in trucking litigation, plaintiffs’ attorneys have always cast a wide net. In the past, plaintiffs’ attorneys have typically used the theory of agency relationship between a broker and a carrier.  Plaintiffs’ attorneys are now seeking to hold freight brokers liable through theories of negligent hiring, negligent retention, and negligent selection, alleging that a broker has failed to assess a carrier’s safety record, claims history, and insurance status.  This article analyzes some of the latest case law on negligent hiring and discusses the best practices for brokers to avoid liability under the theory that they negligently hired a carrier.

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Digging into an Opposing Expert’s Past

Plaintiffs’ retained testifying experts must, similar to lawyers, market themselves to potential clients. In their profession, of course, their target clients are plaintiff-oriented firms. Just as members of any profession, plaintiffs’ testifying experts often become more sophisticated both in their craft and their marketing efforts with experience, which, essentially, means they become better at spinning the same underlying biographical facts over the years. As defense attorneys, we can uncover helpful impeachment material by comparing these experts’ current promotional materials with the ones used during the dawn of their careers. Both lawyers and their experts have used the Internet to promote themselves for almost two decades, and these marketing materials can still be found lurking in the greater depths of the Internet if you seek them out.

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The Role of Medical Examiners and Forensic Pathologists in the Defense of Wrongful Death Cases

In catastrophic injury cases, defense counsel are most familiar with the first responder investigations conducted by local and state police and fire departments.  In death cases, however, there is a third public responder, the local Medical Examiner’s Office. 

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A Fresh Challenge to Standing Under Consumer Protection Laws

The United States District Court for the Northern District of West Virginia recently dismissed West Virginia Consumer Credit and Protection Act (WVCCPA) consumer protection claims because the plaintiffs lacked standing as a result of their bankruptcy discharge. Fabian, et al. v. Home Loan Center, Inc., et al., No. 5:14-CV-42, 2014 WL 1648289 (N.D. W. Va. Apr. 24, 2014). Claims under the WVCCPA are available to a “consumer,” defined as “any natural personobligated or allegedly obligated to pay any debt.” W. Va. Code § 46A-2-122(a) (emphasis added). The court reasoned that because the plaintiffs were relieved of personal liability for the debt by virtue of the discharge that they received in bankruptcy, they were no longer obligated to pay the debt and therefore could not meet the definition of a consumer. In reaching its decision, the court cited an opinion from the United States Court of Appeals for the First Circuit, which applied the same argument to claims brought under the federal Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692 et seq. Arruda v. Sears, Roebuck & Co., 310 F.3d 13, 23 (1st Cir. 2002).

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Holding a Plaintiff to His or Her Burden: <i>Guidance from a recent Fourth Circuit opinion for challenging a whistleblower’s prima facie case.</i>

From a case involving allegations of criminal export violations, falsified board meeting minutes, and insider trading, defense attorneys can find renewed hope for defeating whistleblower claims. In Feldman v. Law Enforcement Associates Corporation, __ F.3d __, 2014 WL 1876546 (4th Cir. 2014), a unanimous panel of the United States Court of Appeals for the Fourth Circuit affirmed a district court’s entry of summary judgment for the defendants on claims brought under the anti-retaliation provision of the Sarbanes-Oxley Act of 2002 (SOX), 18 U.S.C. § 1514A. After analyzing the evidence, the court of appeals determined that the plaintiff had failed to establish that any protected activity was a contributing factor in his termination and that he had therefore failed to establish a prima facie case of retaliation. The result is a well-reasoned opinion demonstrating how a whistleblower’s burden is not met absent sufficient evidence.

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Trial Skills: Cross-Examination Know the elements of the plaintiffs’ case. In almost every case involving some professional or technical issue, the plaintiff must hire an expert to address the elements of the cause of action.  Make sure you know what the plaintiff is trying to prove. You won’t be able to organize a good cross without knowing the plaintiff’s objective in closing argument. Some of your best cross-examination testimony will come from attacking the element or elements on which the expert is weakest.  view more
How to Write Case Reports to Assist In-House Counsel

The case report is one of the most important documents you can prepare in a case.  It is the one document that in-house counsel meticulously reads, and on which they rely, in determining a case’s progression and ultimate resolution.  A well-crafted case report will be instrumental in helping counsel set and execute strategy, reduce litigation costs, reduce risks, save time, and, ultimately, help you provide better value to the client.

To create a useful case report, attorneys should know how the client uses the document, and what information the client would like included.  While the answers to those questions might vary a bit from client to client, the core purpose of a case report remains the same: to understand the potential impact of a dispute so that the strategy can be managed accordingly.  A well-written, concise, and informative case report is the backbone of the client’s decision-making framework, allowing the client to assess the dispute properly and determine the most effective course of action.

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What Is the Correct Standard of Liability Under the ADA? Did a federal district court err in rejecting the but-for standard for ADA discrimination claims?

In Siring v. Oregon State Bd. of Higher Educ., an Oregon federal district court held that the but-for standard of causation applicable to discrimination claims under the Age Discrimination in Employment Act of 1967 (ADEA), as well as to retaliation claims under Title VII of the Civil Rights Act of 1964 (Title VII), is not applicable to discrimination claims under the Americans with Disabilities Act of 1990 (ADA), as amended by the ADA Amendments Act of 2008 (ADAAA). Instead, the court concluded, “the causation standard for ADA discrimination claims is ‘motivating factor.’” 

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Insurers Not Obligated to Defend in ZIP Code Coverage Suits

Insurers are increasingly faced with privacy and data-breach related claims. One of the most common issues involves retailers’ collections of customer ZIP codes allegedly in violation of statutory or common law privacy laws. When an insured retailer is sued, must its insurer provide a defense under the “personal and advertising injury” policy section?  Given the frequency with which such claims are being made, how to respond to these claims is an important issue for insurers.

A Pennsylvania federal court recently analyzed whether OneBeacon America Insurance Company (OneBeacon) and The Hanover Insurance Group (Hanover) were obligated to defend retailers Urban Outfitters, Inc. and its subsidiary Anthropologie, Inc. (collectively Urban Outfitters) in three putative class action lawsuits challenging Urban Outfitters’ collection of customer ZIP codes. OneBeacon America Ins. Co. v. Urban Outfitters, Inc., et al., case number 2:13-cv-05269 (E.D. Penn., May 15, 2014). Applying Pennsylvania law, the court held that neither insurer had a duty to defend Urban Outfitters in any of the three class action lawsuits.

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Transvaginal Mesh Litigation—Creating a “New” Bellwether Process?

Currently pending before Judge Joseph R. Goodwin in the United States District Court for the Southern District of West Virginia is the pelvic repair system product liability litigation (transvaginal mesh litigation), which is presently the largest active multidistrict litigation (MDL).  These MDLs arise from the use of transvaginal surgical mesh to treat female pelvic organ prolapse and stress urinary incontinence. This litigation currently consists of seven separate MDLs involving nearly 60,000 plaintiffs.  Originally, each of the MDLs followed the traditional bellwether process, selecting and working up representative cases to be tried either by Judge Goodwin in the transferee court (Southern District of West Virginia) or by the district judges in plaintiffs’ home districts.  However, as the transvaginal mesh litigation has progressed and grown since the first MDL was created in 2010, the parties have seen a transition away from the traditional bellwether process as the sole approach, to new methods by which the court has decided to manage this mass action. It is possible that we may see these changes in the transvaginal mesh litigation’s bellwether process utilized by other courts in future MDLs or class settings. 

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Get Ready for Canada’s New Anti-Spam Legislation!

In December 2010, the Canadian government passed Canada’s Anti-Spam Legislation (CASL), which creates substantial restrictions on the use of electronic messaging for commercial purposes.  Three years later, on December 4, 2013, Industry Canada published the final regulations under CASL and announced that the majority of the CASL, with a few exceptions, will begin to take effect on July 1, 2014. With anti-spam provisions that apply to electronic messages sent or accessed by computer systems located in Canada, CASL and its accompanying Electronic Commerce Protection regulations and guidelines will have far-reaching effects, including on the electronic communications and marketing practices of foreign companies operating, or promoting their products and services, in the Canadian marketplace.

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Bigotry as a Factor in Evaluating Liability Claims

Bigotry is one of the more prevalent and unpleasant aspects of human nature. Our modern, enlightened society has come a long way toward eliminating personal traits such as race, religion, and gender as factors in the way we treat each other. Although we still have a long way to go, American society generally discourages personal prejudice and actively seeks to alleviate its harmful effects. Equal opportunity laws impose penalties against those who discriminate against job seekers, homebuyers, and bus riders on the basis of their appearance, heritage, or religion. However, personal prejudices persist in one important American institution: the jury trial.  Ironically, the bastion of justice is often the occasion of some of the most egregious offenses to American principles of equality and fair play. A candid and thorough evaluation of a liability claim must take into account the effect of jurors’ prejudices on the potential outcome of a litigated case. 

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Insurance Brokers Must Toe the Line

In a majority of jurisdictions in the United States, an insurance broker only owes a duty to his or her client to obtain the requested insurance coverage within a reasonable time or inform the client of the inability to do so.  (Murphy v. Kuhn 660 N.Y.S.2d 371, 373 (NY 1997); Fitzpatrick v. Hayes (1997) 57 Cal.App.4th 916, 927).  Generally, the insurance broker does not owe the client a duty to advise, guide, or direct such client to obtain additional insurance coverage not specifically requested by the client.  However, the line between the duty to procure and the duty to advise is becoming more and more blurry.  Courts are facing more claims than ever to determine whether the insurance broker’s actions warrant holding him or her to higher duty to the client. 

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No Claims in the US for International Flight Delays Without Breach of Contract

In the recent years, several cases have been filed with the United States District Court for the Northern District of Illinois against various airlines for damages due to flight delays.  In all of these cases, passengers were trying to obtain in one form or another, compensation under the European Parliament and Council Regulation No. 261/2004 (EU 261), which requires airlines to assist passengers in case of delays or cancellation of flights departing from or arriving to an EU Member State. 

This article will explain why EU 261 has been so attractive for passengers seeking compensation for flight delays in US courts.  Further, it will address other legislation pertinent to defending EU 261 claims.  Finally, the article will discuss these recent decisions and compare their outcomes. view more
Spring Cleaning for Applications: Background and Credit Checks

As seasonal hiring begins, employers should reassess their application process, including the actual application, job description, and background and credit check policies, because legislation restricting the use of these checks continues to be enacted across the nation.

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Google Glass: How Will It Affect the Law as We Know It? In April 2012, Google introduced its Google Glass project, which takes the functionality of a smartphone to a new level. Glass is a wearable device that resembles a pair of eyeglasses and allows you to connect to the Internet with built-in monitor, camera, and microphone. The cutting-edge technology is able to record, save, and upload anything the Glass wearer can see or hear. It also allows Internet access with the flick of an eye. The device is not yet generally available to the public, though it is rumored to be available for purchase later this year. However, individuals called “Explorers” are testing Google Glass by wearing it.  Unsurprisingly, the device has already drawn questions by some regarding privacy and other issues.

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How Will the Legalization of Marijuana Affect Employers?

Currently 20 states, including the District of Columbia, have legalized marijuana for medical use.  In addition, Colorado and Washington State have legalized the "recreational" use of marijuana.  The legalization of marijuana presents several issues with which employers will have to contend.  This article will address the federal government's response to state marijuana legalization, state laws affecting employers' rights to restrict marijuana possession and use by their employees, and recommendations for employers seeking to regulate marijuana possession and use by their employees.

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How to Respond to Politically Incorrect Comments in a Professional Setting

As attorneys, we will find ourselves in uncomfortable situations when clients make racist, sexist or politically inappropriate comments in our presence.  How does an attorney respond?  Typically these comments are made over the phone where the client has not met the attorney in person.  Sometimes they are made in a face to face conversation where the client makes an incorrect assumption about the attorney's ethnicity, sexual orientation, religion or political views.  Often times the person who uttered the incorrect and thoughtless remarks are crucial to the attorney's practice.  They may be important clients whose work generates substantial firm revenue.  The first rule of maintaining integrity I believe, is that one cannot misrepresent oneself or one's positions.

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Discovery Stick Up – Give Me Your Money or Your File: New York’s Trend Toward Expanding Discovery Exchange in First Party Disputes by Steven E. Peiper

For decades, the attorney-client privilege has traditionally been sacrosanct in New York, as well as anywhere else in the country.  To that end, it had been clearly established under New York law that an attorney-client privilege exists where “a communication is made within the context of the relationship for the purpose of obtaining legal advice,” and the communication is intended to be, and is actually kept, confidential.  Abu Dhabi Commercial Bank v. Morgan Stanley, No. 08 Civ. 7508(SAS), 2011 US Dist. LEXIS 116850 (S.D.N.Y. Oct. 3, 2011).

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Reverse Bad Faith: An Alternative to Even the Playing Field?

Every contract contains an implied duty of good faith and fair dealing which requires every party to the contract to act in good faith in the performance and enforcement of the contract.[1] While this rule on its face should apply to every party to every contract, it has not traditionally been applied in such an evenhanded and fair manner with respect to insurance contracts. Generally, the burden of good faith and fair dealing has been one-sided and falls almost exclusively on the shoulders of insurance carriers.[2]  This is evidenced in the widespread availability of a common law, and in some places statutory, cause of action for an insurer’s breach of the duty of good faith and fair dealing, while such a cause of action is largely unavailable to insurers wishing to combat an insured’s violation of the same duty.

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When Is Work Travel Work? Travel under the Fair Labor Standards Act

 "Travel is glamorous only in retrospect." Paul Theroux. And never more so when it involves non-exempt employees and the Fair Labor Standards Act.

The Fair Labor Standards Act (FLSA) is one of the most confusing and difficult statutes in the United States Code to comply with properly. Through many twists and turns, including who is or is not an "exempt" employee; what constitutes "work" and what does not; and what is, or is not, overtime, many employers, in spite of their best efforts, still violate the FLSA. Inadvertent violations of the FLSA can be time-consuming and expensive to defend. Damage provisions in the FLSA are severe. The only area in which an employer's good faith is taken into account is the statute of limitation for FLSA claims. Therefore, it is not surprising that FLSA claims take up a considerable amount of time in employment litigation, and even more time in consulting with attorneys, including in-house counsel, before litigation.

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A Blueprint for a Successful Construction Mediation

Project: Settlement.  Construction mediation is no different than any other type of mediation.  However, it can present additional challenges since there are frequently a multitude of parties, as well as numerous collateral issues which can impede settlement.  Let’s take a look at the critical path to getting the case settled.

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