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Optimizing Trial Technology and Tools

Even the most experienced trial attorney can be intimidated by the use of technology at trial.  The litigation world has come a long way.  In less than 15 years, we have gone from distributing paper copies of exhibits to jurors—even in complex commercial trials—to having a variety of technological options available.  And not just for displaying exhibits, but for scientific demonstrations, opening/closing aids, and showing live testimony from remote locations.  To be competitive, trial lawyers need to know what the technological options are, how to use them, and how to do so effectively.

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Respond with Caution! Responses to Discovery “Subject to the Stated Objections” May Waive Your Client’s Objections

A growing number of federal courts have confirmed that the once-common discovery practice of asserting an objection, followed by a bare “conditional” response, i.e., stating that “Without waiving the stated objections, defendant will produce non-privileged responsive documents,” is now considered improper and may result in an inadvertent waiver of the party’s stated objections.

It has become common practice among many litigators to respond to a discovery request by stating the party’s objection, followed by a conditional response.  For instance, practitioners routinely respond to a discovery request by stating, “Subject to and without waiving the stated objections, Defendant will produce non-privileged responsive documents.” Many federal district courts are concluding that such a conditional response, without specifying which part is objected to and which part is being responded to, is improper and, most significantly, that a party may waive its objections by responding conditionally.  Sprint Comm. Co., L.P. v. Comcast Cable Comm., LLC, No. 11-02684-JWL, 2014 WL -------, *4–8 (D. Kan. Feb. 11, 2014), available at https://ecf.ksd.uscourts.gov/cgi-bin/show_public_doc?2011cv2684-177.

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Liebeck v. McDonalds Restaurants: The Original Coffee Product Liability Case

Back in 1994, Stella Liebeck v. McDonalds Restaurants became one of the most talked about lawsuits in American history. To this day, that New Mexico state court case is an essential component of any tort reform debate or discussion of litigation lore.  At that time, and to this day, the thought of a fast food drive-thru customer spilling coffee on herself in her vehicle and later recovering a punitive verdict of $2.7 million was simply too much for many members of the public. As we all know, the case became fodder for late night talk show hosts and later, Internet commentators, most of whom were relatively unfamiliar with the basic facts of the case. Over the years, the case has become part cautionary tale, part urban legend, and individuals seeking confirmation of even the most basic facts of the case have encountered great difficulty (in part because the case resulted in no formal appellate opinion setting forth its factual and procedural background).

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Can I Copyright My “Knight in Shining Armor” Story?

The short answer is—perhaps, at least parts of it.  Copyright law protects “original works of authorship fixed in a tangible medium of expression.” 17 U.S.C. §102.  This protection attaches from the moment at which the expression is recorded—in other words, from the moment the pen hits the paper.

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Commonly Used Severance Agreement Provisions Under Fire

An employer who has to terminate an employee or make a reduction of their workforce must make these decisions with a plan of action and take measured steps to assure their business is protected from wrongful termination liability.  Many employers seek an attorney’s assistance in preparing severance agreements to avoid post-termination liability.  A well-drafted severance agreement is the best and most cost-effective way for an employer to have an employee release the employer of potential claims and avoid expensive litigation.  But can we be certain that the agreements we draft are enforceable?

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Litigating Coverage for Personal and Advertising Injury in the Twenty-First Century

Ever since insurance for “personal and advertising injury” was first offered in the 1970s, insurers and insureds have been litigating the scope of this coverage.  The landscape is constantly shifting, now more than ever. Our electronic era raises numerous questions about whether coverage exists for torts committed in cyberspace. Just last year, the Insurance Services Office (ISO) issued a new commercial general liability (CGL) form which significantly changes the coverage that most insurers are willing to offer for “personal and advertising injury,” also known as “Coverage B.”

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<i>Mutual Pharmaceutical v. Bartlett</i> and FDA's Proposed Rule on Labeling Changes—Assessing the State of the Preemption Defense for Generic Drug Manufacturers

In the landmark decision Pliva, Inc. v. Mensing, 131 S. Ct. 2567 (2011), the Supreme Court held that failure-to-warn claims against generic drug manufacturers are preempted by regulations under the Federal Food, Drug, and Cosmetic Act (FDCA) prohibiting generic manufacturers from making unilateral changes to a drug’s labeling.  Two years later, in Mutual Pharmaceutical Co., Inc. v. Bartlett, 133 S. Ct. 2466 (2013), the Supreme Court extended Pliva to design defect claims based on product mislabeling.  However, this past November, FDA proposed a rule change which, if adopted, will effectively eliminate the preemption defense for generic drug manufacturers, rendering Pliva and Bartlett moot.

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Safety Throughout the Food Chain

For most of this nation’s history, there has been little to no coordination among companies playing different roles in the nation’s food supply chain.  Companies in various roles have been regulated by at least 30 different laws and monitored by more than a dozen different state and federal governmental agencies. (President’s Food Safety Working Group, Food Safety Working Group: Key Findings at 2.) Often those governmental agencies had conflicting goals and objectives. Companies were answerable for their own conduct without necessarily understanding the obligations of the players either up or down the food chain.  The companies at each link in the chain were playing their own game, under their own rules with their own referees.

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<i>Mutual Pharmaceutical v. Bartlett</i> and FDA's Proposed Rule on Labeling Changes—Assessing the State of the Preemption Defense for Generic Drug Manufacturers

In the landmark decision Pliva, Inc. v. Mensing, 131 S. Ct. 2567 (2011), the Supreme Court held that failure-to-warn claims against generic drug manufacturers are preempted by regulations under the Federal Food, Drug, and Cosmetic Act (FDCA) prohibiting generic manufacturers from making unilateral changes to a drug’s labeling.  Two years later, in Mutual Pharmaceutical Co., Inc. v. Bartlett, 133 S. Ct. 2466 (2013), the Supreme Court extended Pliva to design defect claims based on product mislabeling.  However, this past November, FDA proposed a rule change which, if adopted, will effectively eliminate the preemption defense for generic drug manufacturers, rendering Pliva and Bartlett moot.

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Navigating the Ethical Minefield of “Burning Limits” Insurance Policies They are known as “burning limits,” “defense within limits” (DWL), “wasting,” “spend-down,” “self-consuming,” “self-liquidating,” or even “cannibalizing" insurance policies. Whatever the name, the costs of defending an insured against a suit are included within the limits of the policy, leaving less money available to pay a judgment or settlement. Such policies exist in stark contrast to more commonplace liability policies, under which defense costs are in addition to the limits of liability and not subject to those limits. While there has been much commentary on the ethical issues implicit in the “tripartite relationship” among the insurer, defense counsel, and the policyholder where defense costs are in addition to the limits of liability, much less attention has been paid to the ethical issues presented by defense under a burning limits policy, which are, if anything, even more poignant. This article is an attempt to redress that imbalance. 

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Mentoring Committee: What to do When you Receive a New File

You walk into the office on Monday morning to find a copy of a complaint and some other documents on your chair.  On top is a yellow post-it note from a partner, asking you to see her about working on a new case.  What can you do to set yourself up for success on this new matter?

Every new matter needs a plan of attack, and that plan of attack has to begin as soon as you receive the assignment.  To give yourself the best chance of success in satisfying your partner and getting the best result for your client, you should always develop and follow a plan that looks at the end game, even while the game is just beginning.

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Sports and Entertainment Law SLG: Snyder’s Last Stand

The Washington Redskins, the Cleveland Indians, the Chicago Blackhawks, and the Kansas City Chiefs play different sports in different cities, but collectively, they share many things. Each team is beloved in their respective city by fans, young and old. Each team has a rich history and tradition. And each team is the proud owner of a trademark that could be construed as disparaging toward Native Americans, playing on stereotypical notions or imagery to sell merchandise to the public at large. A lot has been said and written lately about the Redskins nickname, in particular. Everyone seems to have an opinion about it. President Barack Obama has even weighed in on the subject, recently saying that he believes that Redskins owner Daniel Snyder should "think about changing" the team's nickname. However, appeals to Snyder's heartstrings seems to have fallen on deaf ears; he's defiantly stated that he will "never" change the name of his beloved team. He may not have to — the courts may do it for him. A new appeal to the Trademark Trial and Appeals Board (TTAB) by six young Native American plaintiffs may finally spell the end of the Redskins mark, once and for all. More on this in a second. First, a little history.

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The Continuing Saga of Class Action Fairness Act Jurisdiction, and Why You Miss Out if You Miss the Business Litigation Seminar

It goes without saying that DRI seminars are a wonderful way to network and learn about developing legal issues.   Readers of theBusiness Suit probably are aware that the Commercial Litigation seminar in particular has been an extremely productive event to attend.  The event promises to be even more valuable now that there is a seminar focused specifically on business litigation.

If you did not attend this year's Commercial Litigation seminar (and where were you?), you missed an important illustration of just how valuable attendance at DRI seminars can be.  Participants in the Class Action SLG break out session learned about two issues involving the Class Action Fairness Act of 2005, Pub. L. 109-2 ("CAFA") that are continuing to attract attention from the nation's highest courts.  

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Conflict of Laws and Actual Causation in Asbestos Litigation Conflict of laws is about conflict, not choice. Yet more and more plaintiffs in asbestos cases move courts to apply foreign actual causation standards in jurisdictions where plaintiffs consider the burden of proof, surprisingly, burdensome. These plaintiffs employ conflict of law principles to enforce their burden of choice. This tactic is wholly inappropriate. Actual cause is a question of fact for the jury. Questions of fact neither absolve a plaintiff’s right to sue nor deny a party’s liability as a matter of law. 

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Class Action SLG: Whirlpool and Sears: The Impact of Products Liability Class Actions on the Reinforced Commonality and Predominance Requirements of Rule 23

Front-loading washing machines have revolutionized the age-old chore of laundry because of their increased capacity and efficiency.  Why, then, are the front-loading washing machines the subject of countless proposed class actions all across the country?  As the manufacturers of those washing machines have repeatedly tried to say: what does not smell right is that the certified classes include numerous consumers who have not experienced any problems with the washers and have suffered no actual damages.  According to the Sixth and Seventh Circuit Courts of Appeal, however, whether those washing machines are defective is a sufficient common question that predominates over individual issues to support class certification under Rule 23(b)(3).  Glazer v. Whirlpool Corp., 722 F.3d 838, 852 (6th Cir. 2013); Butler v. Sears, Roebuck & Co., 727 F.3d 796, 801 (7th Cir. 2013).

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One Size Does Not Fit All in the Wake of the ADAAA Overview: Americans with Disabilities Act (“ADA”) and the ADA Amendments Act (“ADAAA”)

President George W. Bush signed the ADA Amendments Act of 2008, Pub.L. 110-325 (2008) (“ADAAA”), into law on September 25, 2008, with an effective date of January 1, 2009.  The ADAAA widened the number of persons covered by the ADA, which in turn, widened the number of potential litigants under the ADA.  The effect of these changes is to make it easier for an individual seeking protection under the ADA to establish that he or she has a disability. 

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Spray Polyurethane Foam Insulation Products Liability Litigation – An Update

Earlier this year, it seemed like Spray Polyurethane Foam Insulation ("SPF") might generate the type of attention that Chinese drywall did.  Between April 2012 and May 2013 homeowners in various parts of the country, including Connecticut, Florida, Maryland, Michigan, New Jersey, New York, Pennsylvania, and Wisconsin, had filed at least thirteen separate lawsuits alleging property damages and physical injuries arising from SPF.

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Composite Decking Litigation: After the Trex Settlement, Who’s Next to the Party?

Over the last decade, the plaintiff’s bar has turned its attention to composite decking manufacturers, filing a stream of class action and direct actions against several big-name manufacturers, and – with two recent high profile class action settlements – the efforts appear to be paying off. While some complaints have either been dismissed or voluntarily withdrawn, several actions have resulted in significant settlements, as well as more modest settlements for private claimants. Accordingly, composite decking manufacturers present a clear target to the plaintiffs’ bar, and the question being asked has gone from “do these claims have merit?” to “which manufacturer is the next target?”  

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Admissibility in Products Liability Cases of Data Published by the Consumer Products Safety Commission’s National Electronic Injury Surveillance System

In several recent product liability actions,[i] plaintiffs have sought to introduce evidence of data that the Consumer Product Safety Commission ("CPSC") had compiled, including CPSC statistical extrapolations that estimate the total number of accidents occurring each year involving a particular class of consumer product.  This "other accident" statistical evidence is derived from information that the CPSC gathers from representative hospitals regarding accidents involving consumer products, as part of the CPSC's National Electronic Injury Surveillance System ("NEISS") program. 

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Should Naturally Occurring Substances, Such as Asbestos or Diacetyl, Be Subject to Design Defect Claims? Many toxic tort cases involve substances that are naturally occurring. Asbestos and diacetyl are among several well-known, naturally occurring substances that are sold commercially, and they have been the subject of national litigation alleging permanent and, at times, fatal injuries from exposure. For the most part, plaintiffs have sought recovery under the failure to warn or design defect theories of product liability. Although both theories require a plaintiff to prove that the product in question is unreasonably dangerous, the elements of each theory are different. There are also distinct defenses available to each, depending on the jurisdiction. Naturally occurring substances, such as asbestos and diacetyl, are not “designed” and, therefore, should not be subject to design defect claims as a matter of law. Defense counsel should pursue motions to dispose of such claims where feasible.

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The Pitfalls of “Replying to All”

During those incredibly busy days all lawyers face, it is important to be mindful of the recipients of any electronic communication. There may be nothing more perilous than the “Reply to All” function on one’s email service; so dangerous is the function that the Wall Street Journal has called it “the button everyone loves to hate.”

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Removing Some Litigation Hazards from Product Design: Why a Manufacturer Needs a Hazard Analysis in Product Files

It can hardly be disputed that most manufacturers take great efforts to design and to produce a product that is safe, effective, and in demand. The technological advancements of the past half-century are staggering; yet, so too is the increasing sophistication of those that “grade” a product’s safety. Regulations in the twentieth century grew exponentially. The twenty-first century has seen a refreshed focus on additional regulations, and perhaps more importantly, aggressive regulators. As the globalization of the economy has progressed over the past two decades, the focus on harmonizing regulations and standards has increased. This includes harmonizing regulation of the pre-production  assessment of potential hazards in a product’s use. What for years amounted to informally determined activities and documentation has evolved into a myriad of approaches and documentation. While no longer in its infancy, hazard and risk analysis continues to mature and to develop, with new approaches and methods constantly appearing. This overview will address several reasons why a manufacturer should implement a formal hazard analysis and discuss factors to consider in a product safety program.

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Teleradiology and Quality Assurance Issues

Teleradiology is a subset of the burgeoning enterprise of delivering health care services through telecommunication. The rapid spread and integration of telemedicine into traditional health care institutions has been driven by a demand for access and the quest for efficiencies. Because many telemedicine companies provide services in different states and countries, this form of delivery erases traditional geographical boundaries and often challenges conventional medical practice models. Commentators have focused on the incongruity of state statutory and regulatory schemes and the evolving corporate structures as issues facing telemedicine. Carl J. Ameringer, State-Based Licensure of Telemedicine: The Need for Uniformity but not a National System, 14 J. Health Care L. & Pol’y 55, 55 (2011).

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Absence of Prior Accidents Evidence – Recent Trends in Admissibility Admission of a product's safety history evidence is one of the "most effective defenses in products liability cases."[1]  Just as plaintiffs often introduce evidence of prior accidents in products liability cases,[2] defendants may offer proof of the absence of prior accidents.  Defendant manufacturers can utilize this proof to show that a product is not dangerous or defective, that the product did not cause the plaintiff's injury, or that the defendant lacked notice of a defect.[3]  Also known as "safety history" evidence, proof of the absence of prior accidents involving the product at issue is "powerful evidence for the defense,"[4] and can be "incredibly persuasive to the jury." view more
New Year’s Resolutions: Tips on Effective Management and Resolution of Cases

While a new year is upon us, many cases remain on desks around the country headed for trial. The burdens of litigation, from extensive discovery fights to unnecessary motion practice, remain as pervasive as ever. Lawyers can make a few resolutions to get these cases moving forward and resolved effectively.

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Sixth Circuit Affirms Award of Insurer’s “Profits” in Addition to ERISA Plan Benefits In a case certain to figure prominently in ERISA water-cooler conversations this year, a panel majority of the Sixth Circuit recently affirmed an award of long term disability benefits under an ERISA plan and disgorgement of the insurer’s “profits” on those withheld benefits. See Rochow v. Life Ins. Co. of N. Am., No. 12-2074, 2013 U.S. App. LEXIS 24271 (6th Cir. Dec. 6, 2013). The majority held plaintiff was entitled to $3.8 million of the insurer’s “profits”—nearly four times the amount of withheld benefits—based on an equitable theory of unjust enrichment. The 2-1 decision marks a profound change in the relationship between ERISA § 502(a)(1)(B) (recovery-of-benefits-due provision) and § 502(a)(3) (“appropriate equitable relief” provision). Indeed, prior to Rochow, no federal appeals court had affirmed both an award of plan benefits under § 502(a)(1)(B) and “equitable” monetary relief under § 502(a)(3) based on a breach of fiduciary duty, where the only “breach” was the denial of plan benefits.

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Judges in the Eleventh Circuit Take On Expanded Role in Regard to Expert Testimony

In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) and Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999), the Supreme Court articulated the framework and principles upon which lower federal courts should apply Federal Rule of Evidence 702, regarding the admissibility of expert testimony. These landmark decisions have become synonymous with the inquiry that federal courts use to evaluate, and ultimately choose whether to admit or exclude expert testimony.

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Defending a Recalled Product in Subsequent Litigation

The U.S. Consumer Product Safety Commission (CPSC) has been among the most active government agencies in recent years. As the number of product recalls and published incident reports continue to increase, so does the potential for subsequent litigation. Product liability lawyers must prepare to deal with evidence of product recalls or agency investigations that will inevitably come up during discovery and at trial.

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The Two-Edged Social Media Sword Social media is one of the fastest growing tools businesses use to employ marketing tactics in a timely and cost effective manner. It has the power to propel a company ahead of competitors, and into a thriving market position. On the flip-side, social media also has the power to propel a company unwillingly into a negative market position. Counsel for businesses must be aware of and able to advise their clients about both the upside and the downside of social media, and how to react to negative social media. 

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Unpaid Interns: “Free” Holiday Help May Prove Costly in the New Year

With the holidays rapidly approaching, I am reminded of the winter break I spent interning with a company that shall remain nameless. Like many college students, I was thrilled to gain real-world work experience, even as an unpaid “intern.” The company welcomed my willingness to work long hours to complete research projects and assist overburdened employees with their assignments during one of its busiest seasons. In return, I obtained a valuable few lines for my resume. Arguably, both the company and I benefited from the relationship, so what could go wrong? I now know that despite my brief tenure with the company, the law would likely consider me to have been its “employee,” and thus entitled to minimum wage and overtime.

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Paying for Rescission

In order to rescind an insurance policy, the insurance company must establish the presence of three elements: (1) that the insured made a misrepresentation, omission, or concealment; (2) that the misrepresentation, omission, or concealment was material to the risks; and (3) that the insurer relied on the misrepresentation in issuing the policy. See, Steven Plitt and Jordan R. Plitt, Practical Tools for Handling Insurance Cases, § 1:33 (Thomson Reuters 2011). Typically, an insurance company seeking rescission of the insurance policy must return to the insured all premiums within a reasonable time period. See, e.g., Gonzalez v. Eagle Ins. Co., 948 So.2d 1 (Fla. Dist. Ct. App. 3rd Dist. 2006) (stating that where an insurer seeks to rescind a voidable policy, it must both give notice of rescission and return or tender all premiums paid within a reasonable time after discovery of the grounds for avoiding the policy). The issue of timing of return of the premium recently came before the Indiana Supreme Court in Dodd v. American Family Mut. Ins. Co., 983 N.E.2d 568 (2013). In Dodd, the insurer did not return the insured’s premium in a timely manner. Nevertheless, the Indiana Supreme Court affirmed the policy rescission based upon an exception to the tender of premium obligation.

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Avoiding the Pitfalls of Writing a Reservation of Rights in an Unfamiliar State

Writing a reservation of rights letter is among the most important tasks an insurer and its coverage counsel perform. The reasons are simple—the insurer risks waiving coverage defenses if it does not correctly or timely assert them, and a vigilant policyholders' bar is waiting to pounce on the slightest misstep to secure coverage beyond that provided by the policy and, in some cases, try to establish a bad faith claim against the insurer.

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FDA Bows to Industry in Final Guidance on Regulation of Mobile Medical Apps Mobile medical applications (mobile medical apps or MMAs) are software programs that run on smartphones, tablet computers and other mobile communications devices. In July 2011, the Food and Drug Administration (FDA) issued a draft guidance document, titledMobile Medical Applications, describing FDA’s intention to bring mobile medical applications within its regulatory reach. On September 25, 2013, the FDA unveiled the highly anticipated final guidance on how it will regulate the up and coming field of mobile medical apps.

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The Noerr-Pennington Doctrine: An Effective Means to Argue Litigation Privilege in Federal Claims Many states provide, by common law or statutory provision, that statements by attorneys, parties and their representatives in judicial proceedings are privileged and immune from liability. However, federal precedent largely confirms that a common law litigation privilege cannot bar a federal statutory claim by virtue of the Supremacy Clause. See, e.g., Howlett By & through Howlett v. Rose, 496 U.S. 356, 383 (1990); Martinez v. State of Cal., 444 U.S. 277, 284 n.8 (1980); Steffes v. Stepan Co., 144 F.3d 1070, 1074 (7th Cir. 1998);Allen v. LaSalle Bank, 629 F.3d 364, 369 (3d Cir. 2011). However, federal court holdings have increasingly held litigation-based statements may nonetheless be immune from liability for federal claims under antitrust jurisprudence. 

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Analyzing Cross-Appeals in Federal Court You have obtained a defense judgment in federal district court, but celebration is short lived:  Plaintiff has appealed.  Although the reversal rate for all federal appeals is less than ten percent, appellees could make a big mistake if they sit back, relax and think there is nothing to do except respond to appellant's brief.  In some circuits, failing to cross-appeal could lead to severe repercussions.  Still in others, filing an unnecessary cross-appeal may result in sanctions. See, e.g, Aventis Pharma S.A. v. Hospira, 637 F.3d 1341, 1343-44 (Fed. Cir. 2011).  To further complicate matters, the Supreme Court has indicated that cross-appeals may be jurisdictional, contrary to the traditional notion in some circuits that the requirement of cross-appeals is a flexible rule of practice.  See, e.g., Genesis Healthcare Corp. v. Symczyk, 133 S.Ct. 1523 (2013); El Paso Natural Gas Co. v. Neztsosie, 526 U.S. 473, 479 (1999). view more
Negotiated Risk Agreements in Assisted Living Facilities

Federal and state governments, insurers, hospital administrators, and financial analysts all have weighed in on the ramifications of increased life expectancy, advances in geriatric medicine, and escalating health-care costs.

The economic impact these developments already have had and are likely to have on all of our lives has been the topic of increasingly urgent debate. While some envisioned a "perfect storm" on the horizon, others saw opportunity. The financial acumen of the baby boomers coupled with what has often been touted as the largest generational transfer of wealth in American history, has proven advantageous for some but not all. Consequently, long-term care for the aged has emerged from the shadows, in which lurked the frequently maligned nursing home, to the nascence of the golden age of assisted living. The present, and certainly the next, generation of long-term care residents are desirous of and willing to pay for more upscale surroundings in their later years. At the same time, although perhaps willing to forever leave behind the family home for a more confined living situation, the new wave of residents are not so quick to relinquish many of the freedoms of everyday life. This dynamic of a more active, elderly, residential population in long-term care facilities is not without its risks. "Negotiated risk," one way that long-term care facilities are evaluating and managing those risks, is the topic of this article.

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Supreme Court Holds that Courts Must Defer to Arbitrator’s Decision to Authorize Class Arbitration Despite Court’s General Trend Against Class Arbitration

On June 10, 2013, the United States Supreme Court unanimously held in Oxford Health Plans, LLC v. Sutter, that an arbitrator's decision to authorize class arbitration will not be disturbed under Section 10(a)(4) of the Federal Arbitration Act ("FAA") when that decision is grounded in the arbitrator's interpretation of the agreement.  In so holding, the Supreme Court squared the circle between two recent decisions in which demonstrated the Court's predisposition against class arbitration and the Court's traditional promotion of limited judicial review under the FAA.  The lesson for practitioners is clear:  those who seek to avoid class arbitration can best insulate themselves from that risk by incorporating an express class action waiver in any arbitration clause.

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The Noerr-Pennington Doctrine: An Effective Means to Argue Litigation Privilege in Federal Claims Many states provide, by common law or statutory provision, that statements by attorneys, parties and their representatives in judicial proceedings are privileged and immune from liability. However, federal precedent largely confirms that a common law litigation privilege cannot bar a federal statutory claim by virtue of the Supremacy Clause. See, e.g., Howlett By & through Howlett v. Rose, 496 U.S. 356, 383 (1990); Martinez v. State of Cal., 444 U.S. 277, 284 n.8 (1980); Steffes v. Stepan Co., 144 F.3d 1070, 1074 (7th Cir. 1998);Allen v. LaSalle Bank, 629 F.3d 364, 369 (3d Cir. 2011). However, federal court holdings have increasingly held litigation-based statements may nonetheless be immune from liability for federal claims under antitrust jurisprudence. 


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The Varying Approaches Concerning When Independent Counsel Is Required for an Insured

On Thursday afternoon, October 17, at the DRI Annual Meeting in Chicago, the DRI Young Lawyer Committee is offering a presentation on issues involving the tripartite relationship. Confirming the potential complexity of the tripartite relationship, the Mississippi Supreme Court has previously noted that the ethical dilemma imposed upon the insurance carrier-employed defense counsel in the relationship between the insurer, client-insured, and insurance-company-paid defense attorney is one that “would tax Socrates.” Hartford Accident & Indemnity Co. v. Foster, 528 So.2d 255, 273 (Miss. 1988). Case law addressing the conflicting interests that can emerge from the tripartite relationship confirms that it is an area that must be approached with caution and a firm understanding of a lawyer’s responsibilities and duties to his or her client. A primary issue that arises within this relationship is when independent counsel must be retained on behalf of the insured. This is an issue that continues to evolve and in many jurisdictions, there is a lack of clear, bright-line rules.

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The Art of the Amicus Curiae Brief The brief as amicus curiae is a mainstay of modern appellate litigation. The dockets of high profile Supreme Court cases are replete with amicus briefs supporting each side—on behalf of trade associations, bar associations, law professors, and other groups and individuals—making cases appear more like a scrum instead of a duel. The paradox of the amicus brief is that, despite its ubiquity, it is often misunderstood. The result can too often be a nearly duplicative amicus curiae brief that merely repeats the arguments of the party is supports. Companies and trade associations are right to have some misgivings about devoting resources and credibility to an amicus brief, fearing that the court may see it as a “me too” that will go unread, or at best, merely add to the head count of what interests are on the side of which party. When used correctly, however, amicus briefs can have significant impacts on litigation relevant to non-party companies and even entire industries. Understanding the right circumstances under which to file a brief as amicus curiae, and what role an amicus brief should play, can maximize a company or trade association’s potential to influence litigation. 

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Ethical Implications of Social Media for Attorneys

Social media has become integral to many Americans’ daily lives. Through Facebook, LinkedIn, and Twitter, information is transmitted and shared at the click of a button. For attorneys, social media use generates unique and complex ethical issues with little overall guidance. This article will examine the myriad issues associated with the use of social media by attorneys.

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I’m from the Government and I’m Here to Help – CPSC Gets “Helpful”

The U.S. Consumer Product Safety Commission ("CPSC") has always encouraged companies to implement active product safety management programs.  For example, it first published the Handbook for Manufacturing Safer Consumer Products in the 1970s, shortly after it was created. 

Since 2010, however, the CPSC has made this a bit more official.  Their thoughts on the adequacy of safety programs has appeared in a final rule of factors to be considered for civil penalties, in a 2010 consent decree for civil penalties, and now in two 2013 settlement agreements on civil penalties.  It is time to reexamine the earlier activities and see what they are now saying in 2013. 

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New Rules for California Workers’ Compensation Under SB 863

With the passage of Senate Bill 863 (SB 863), effective January 1, 2013, the State of California has seen some changes to the existing workers' compensation practice and there will be many more changes to come as the new regulations continue to emerge.  Efforts are being made to streamline the workers' compensation process, increase efficiency of litigation and save money for California employers, at least in theory.  This Bill purports to be the result of extensive negotiation between labor unions and employers but it remains to be seen how the litigation of actual claims will unfold and whether it will lead to more bumps on the road to the settlement of claims.

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Be Smart About the SMART Act: Handling the Modified Medicare Secondary Payer Act The Medicare Secondary Payer Act (“MSP”) established Medicare as a secondary payer for medical claims where another obligated payer (insurer, self-insured, workers’ compensation plan, etc.,) should have been primary, and created Medicare’s right to reimbursement for any funds it has unnecessarily expended.  It also eventually added, pursuant to the SCHIP Extension Act of 2007, a reporting obligation for all parties involved in a payment via settlement, judgment, or award to a Medicare beneficiary. This enabled Medicare to access the information it needed to recover its expenditures.  Since the reporting obligations became effective three years ago, litigants, their insurers, and their counsel have struggled with ambiguities in the MSP, confusion about its application, and the lack of direction from Medicare about the parties’ obligations.  view more
How to Tell If You Are Getting “Reptiled” Prior to Trial

The “Reptile” program refers to a set of manuals, books, DVDs, seminars, and workshops developed by plaintiffs’ counsel, Don Keenan, and jury consultant, David Ball, designed to produce high verdicts in personal injury cases. According to the Reptile website, the Reptile program is “the most powerful tool in the fight against Tort Reform...The proof is in the numbers—over $4.8 Billion in verdicts and settlements have been credited to the Reptile since its introduction in 2009.” The Reptile system is based on themes taken from psychology, marketing, and subliminal messaging that are intended to activate jurors’ instinctive “reptilian brains” and persuade jurors to render verdicts based on primitive fear instincts, rather than using their “ape brains,” which are thoughtful and discerning, to apply the law to the facts of the case. In sum, Reptile tactics encourage jurors to produce a reactionary verdict, rather than one based on rational thought.

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Supreme Court Arbitration Decisions: A Reminder to Draft Contracts and Arbitration Provisions with Care

Blockbuster decisions, addressing some of the nation’s most pressing legal issues, captured the attention of countless Americans during the most recent Supreme Court term. And while the Court’s decisions in American Express Co. v. Italian Colors and Oxford Health Plans LLC v. Sutter did not garner the same media attention as some of the other decisions from the high Court, businesses would be foolish to ignore them.

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The Uncooperative Client

As the old saying goes, the practice of law would be easy sometimes if it were not for the clients. Few other aspects of litigation can mire the defense of a case like an uncooperative client. Sometimes he or she is unresponsive. Sometimes the client is unwilling to listen to his or her attorney. Sometimes he or she simply cannot be “bothered.” But no matter the case, an uncooperative client can stifle the flow of litigation with unnecessary man hours spent on hand-holding and coaxing.

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Is the Risk of Relapse into Substance Abuse Enough to Constitute a Current Disability for Doctors?

Can the risk of relapse into substance dependency by a doctor (anesthesiologist) be significant enough to constitute a current disability under a long term disability plan? This question was answered by the First Circuit Court of Appeals in Colby v. Union Sec. Ins. Co. & Management Co. for Merrimack Anesthesia Associates Long Term Disability Plan, 705 F.3d 58 (1st Cir. 2013).

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Evaluating Dual Occupation Disability Claims

Alexander Graham Bell said that “preparation is the key to success.” The goal of this article is to help practitioners prepare to evaluate complex dual occupation disability claims effectively by providing guidance regarding key considerations and describing a few leading cases on the topic.

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O Canada! What We Can Learn from Thee? A Comparison of U.S. and Canadian Discovery Procedures

It may seem trite to say that the world continues to become increasingly smaller as globalization becomes more prevalent, but examining product liability law in the United States and other countries proves the adage true. As commerce has progressively become more globalized, it comes as no surprise that product manufacturers and distributors sell more of their products worldwide. And where products are sold, product liability lawsuits are usually not far behind.

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