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An August 2022 Illinois District Court cyber insurance case emphasizes the need for insurers to be robust in their underwriting of potential insureds before taking on risk, while underscoring the critical requirement that potential insureds should answer questions thoroughly and truthfully and not omit any vital information that could later be construed as misrepresentations and void the policy.

Insurers and business interests in New York were relieved to hear earlier this week that Governor Hochul had finally vetoed the Grieving Families Act (GFA), which, if signed, would have greatly increased allowable damages in wrongful death cases and the class of persons who could recover for them.

Before denying two petitions arising out of Minnesota cases in which injured workers sought reimbursement for medical marijuana to treat their work-related injuries, the U.S. Supreme Court invited the U.S. Department of Justice to weigh in. Although the DOJ’s brief took the position that the CSA does preempt state law, it also argued that the states did not meaningfully address this issue, and urged the Supreme Court to stay out of this area of emerging law.

On April 5, 2022, the Northern District of California granted partial summary judgment to two insurers, ruling they had no duty to defend the insured in connection with three opioid-epidemic lawsuits brought by state and local governments. The court held that the insured’s over-distribution of opioids led to the foreseeable diversion of prescription painkillers, ruling the opioid crisis did not arise from an accident or occurrence. Accordingly, the insurers did not have a duty to defend and reimburse the insured for the more than $230 million it incurred to defend against thousands of opioid lawsuits.

Institutions for higher education are common targets for web accessibility claims. The constantly rotating mix of students who apply to and attend school each year present a bevy of new potential plaintiffs with different disabilities and unique experiences. As such, schools must monitor compliance and continually strive to be accessible.

New York’s Comprehensive Insurance Disclosure Act (CIDA), which is now in effect, significantly amends CPLR §3101(f) and adds CPLR §3122-b, and requires defendants in civil litigation to disclose extensive information regarding their insurance coverage within 90 days of filing an Answer in all cases commenced after December 31, 2021.

Cannabis companies have been trailblazers on social equity, inclusion and environmental issues, highlighting their importance long before environmental, social and corporate governance (ESG) gained traction in the wider corporate world. Despite well-intentioned words and actions, however, the cannabis industry is not free from potential ESG-related exposures that may lead to additional risks for cannabis executives in the years to come.

The Northern District of California has followed a 2007 finding by the Ninth Circuit that the rights of a copyright holder is infringed only if a copy of an alleged infringed image displayed in violation of the Copyright Act is stored on the alleged infringer’s server or hard disk.

Beginning December 27, 2021, employees in New York City who perform in-person work or interact with the public must show proof that they have received, at a minimum, the first dose of a primary series or a single-dose COVID-19 vaccine. Employees will then have 45 days to show proof of their second dose of a primary series vaccine.

The Marijuana Regulation and Taxation Act effectively requires employers to engage in a wholesale reassessment of their current policies around use and testing, codifies certain judicial holdings around medical use, and folds New York’s medical use law, the Compassionate Care Act, into the auspices of the Office of Cannabis Management governed by the Cannabis Control Board.

The New York Health and Essential Rights Act was triggered on September 6, 2021, when Governor Kathy Hochul declared COVID-19 an airborne infectious disease. Employers who did not implement a plan as required by the Act in May need to do so now, and those who met the initial deadlines should review their plans to ensure they comport with the New York Department of Labor’s new model plans issued on September 23.

Read the article in The Practical Lawyer.

This comparative law survey provides a comparison by state and the District of Columbia of regulations enacted to protect health care workers from liability, modify licensing requirements for health care providers and facilities, and/or extend the statute of limitations as states grapple with the social health care impact of the COVID-19 pandemic.

The information is accurate as of July 9, 2021.

As the legalization of cannabis expands, regulatory and litigation risks also will evolve. Proposed legislation, such as the SAFE Banking Act, will likely lead to greater insurance capacity in the cannabis market, and removal of marijuana from the Controlled Substances Act will have a significantly positive impact on cannabis D&O exposures after a likely tumultuous transition period following legalization.

Google, Facebook and other major internet platforms are under fire socially and politically regarding their publication of news content. However, the legal aspects of the platforms’ use of news media’s material are far from clear. Whether by fair use or some other legal theory, it is possible that such use is permitted by law, but there are no court decisions on this precise topic.

A recent amendment passed by the New York City Council and signed by Mayor DeBlasio expands the City’s Fair Chance Act to impose on employers further prohibitions on adverse actions against applicants or employees based on their criminal history. The amendment goes into effect on July 29, 2021.

The Central District of California dismissed a negligence case against a broker in which the plaintiffs reasoned that while insurance agents generally do not have “a duty to volunteer to an insured that the latter should procure additional or different insurance coverage,” that rule does not apply under three exceptions, which were denied by the court.

As the country awaits final FDA approval for emergency use of additional COVID-19 vaccines, employers are rapidly confronting the implications. For long-term care facilities in particular, availability of a COVID-19 vaccination raises urgent questions regarding the treatment of employees and residents.

The fourth amendment to HHS Secretary Azar’s PREP Act Declaration assertively addresses current disputes involving federal jurisdiction for courts hearing disputes about the Act’s application to claims for injury, and further suggests an intention for a broad application of the Act.

The Ninth Circuit has held that “embedding” is not copyright infringement because the host of the embedded link does not make a copy of the original webpage; instead, the link sends the reader to the server with the original copy of the copyrighted material. Judges sitting in New York courts have continued a trend begun in a 2018 case, finding for copyright owners when embedding is at issue.

Wilson Elser’s Guide to National Transportation Safety Board Investigations prepares transportation providers, manufacturers and pipeline operators from various industries for a NTSB investigation.

Wilson Elser attorneys present the current statutory framework, recent changes to the law in response to the novel coronavirus pandemic.

The U.S. Department of Labor has issued new rules addressing the issues raised by the Southern District of New York’s August decision that invalidated key rules. The new rules will be in effect from the date of publication in the Federal Register through December 31, 2020.

A Texas court ruled that COVID-19 does not cause direct physical damage to property. The property policies at issue insured for accidental direct physical loss to Covered Property and contained a virus exclusion. 

A California state court granted an insurer’s demurrer, ruling that business suspension due to COVID-19 was not caused by direct physical loss of or damage to the property at the premises. The insurer asserted that irrespective of why the business shut down, there was no direct physical damage to the property that caused the plaintiffs’ business income loss.

Courts in various states have issued differing decisions as to whether there is coverage for business interruptions during the COVID-19 pandemic and/or whether government shutdown orders constitute a "direct physical loss" that triggers the policy. Below are links to the various states’ respective decisions.

A Washington, D.C. court recently found that a property insurance policy does not provide business interruption coverage for COVID-19 losses. The court held that COVID-19 does not cause direct physical damage to property, which is a prerequisite to coverage, and concluded that, “even in the absence of [the virus] exclusion, plaintiffs would still be required to show a ‘direct physical loss.’”

A Missouri District Court ruled in favor of defendant restaurants and hair salons in Missouri on the grounds that the “all-risk” policies at issue did not define “physical loss” or “physical damage” and did not include any exclusion for losses caused by viruses or communicable diseases.

The State of New York brought suit against the U.S. Department of Labor regarding the latter’s “Final Rule” on implementation of the Families First Coronavirus Response ACT (FFCRA). The U.S. District Court for the Southern District of New York substantively agreed with the State, concluding that the DOL had overreached its authority and struck down the contested rules.

California Assembly Bill 1552 would create three rebuttable presumptions affecting the burden of proof in a case in which the insured alleges that its business was interrupted due to the COVID-19 pandemic. If enacted, the bill would take effect immediately and apply retroactively to commercial business interruption policies in effect after March 4, 2020, the date a state of emergency was declared.

A Michigan state court judge has ruled that direct physical loss is required to trigger business interruption coverage for loss purportedly arising out of the novel coronavirus and related government stay-at-home orders. In fact, the court held that the virus exclusion in the property policy would have barred coverage even if the insureds had alleged that the virus caused physical damage.

In a recent decision, the U.S. Supreme Court seemed keenly aware that the “invisible hands of capitalism” rightfully belong to the consumer, and held that whether a “generic.com” term such as “Booking.com” is generic depends on whether the consumer perceives the term as such.

In May 2020, Louisiana’s governor signed three laws granting businesses state protection from most lawsuits involving COVID-19 deaths or injuries. The bills took effect immediately and are retroactive to March 11, 2020.

While numerous jurisdictions have already provided some form of immunity to first responders, four states recently passed laws that grant businesses immunity from civil liability for claims relating to COVID-19, and least three others are weighing similar proposals.

The insurance commissioners of Arkansas, Georgia, Kansas, Maryland, North Carolina and West Virginia recently issued communications regarding business interruption coverage. The high points of these communications are summarized in this article.

The proposed Pandemic Risk Insurance Act of 2020 seeks to create a federal program that would provide for a system of shared public and private compensation for business interruption losses resulting from a pandemic or outbreak of communicable disease. The program would be administered by the Department of the Treasury and act as a reinsurer for commercial property/casualty insurers.

Our Q&A document reviews laws and local guidance, discusses workplace safety and other issues that may arise when workers return from furlough & addresses “frequently asked questions” from the employer perspective.

The Federal Coronavirus Task Force issued a three-stage plan last week to reopen the economy, where authorities in each state will decide when it is safe to reopen businesses. Once a state adopts phase one, businesses that reopen will need to be prepared to take certain precautions to meet their common law duty to provide and maintain reasonably safe premises.

Bringing to seven the number of states proposing the retroactive expansion of business interruption policies to cover losses in connection with the outbreak of the coronavirus, three South Carolina state senators have introduced S.B. 1188.

The document answers questions posed by employers who are navigating an uncertain business environment and advises on new state and federal regulations.

New Jersey, Ohio, Massachusetts, New York and Louisiana proposed bills that would retroactively expand business interruption policies to cover losses in connection with the outbreak of the coronavirus. Now Pennsylvania has joined the effort, and the recently proposed bills may be only the tip of the iceberg.

The magnitude of an Executive Order to place an immediate halt on “all nonessential construction” in New York is realized when one considers the massive number of projects that must be in compliance. In New York City alone, there are 6,698 active permits filed as of March 30, 2020, and 182,694,393 square feet of construction ongoing across all boroughs.

Recently, Ohio, Massachusetts and New York followed New Jersey’s example by proposing bills that would retroactively expand business interruption policies to cover losses in connection with the outbreak of the coronavirus. Now Louisiana has joined the effort, and the recently proposed bills may be only the tip of the iceberg.

After hearing that insurers were denying business interruption coverage, members of Congress petitioned the Insurance Commissioner to help businesses get coverage so they can remain solvent throughout COVID-19 pandemic. Insurance industry trade groups cited estimates that just one month of business interruption losses for small businesses could reach $383 billion, thereby potentially threatening the solvency of the entire insurance industry.

Wilson Elser has compiled information on the state laws in all 50 states and the District of Columbia with respect to certain key issues that employers must or may need to address in terminating or reducing their workforce during the COVID-19 pandemic.

New York employers continue to grapple with the sudden and long-term effects of the coronavirus pandemic, and much consideration has centered on what businesses can do to weather this and similar unanticipated events without losing a number of trusted and trained employees via layoffs. The Shared Work Program is an initiative under which an employer may reduce employee work hours and thus the employees’ wages while the business is under temporary hardship.

Recently, Ohio and Massachusetts followed New Jersey’s example by proposing bills that would retroactively expand business interruption policies to cover losses in connection with the outbreak of the coronavirus. Now New York has joined the effort, and the recently proposed bills may only be the tip of the iceberg.

Small businesses and sole proprietorships may apply for Paycheck Protection Program loans authorized by the Coronavirus Aid, Relief, and Economic Security (CARES) Act starting Friday, April 3, 2020. Independent contractors and self-employed individuals may begin to apply for such loans starting Friday, April 10, 2020.

The COVID-19 pandemic has put the legal profession in the unique position of simultaneously dealing with the same challenges as their clients. As executive orders and the mandates of local health organizations, unions, industry associations and agencies have brought challenges to client business operations in addition to existing matters, clients are calling on us more than ever for sound counsel and advice.

The U.S. Supreme Court uses a two-part test to determine the constitutionality of proposed state laws that mandate the eradication of policy provisions and exclusions. First, the Court examines whether the state law has operated as a “substantial impairment” of a contract. Unless this showing is made, the Court will uphold the statute and will not proceed to the second step, which would be a review of the “purpose and necessity” of the state law.

Insurers were instructed by the New York Department of Financial Services to provide the volume of business interruption coverage, civil authority coverage, contingent business interruption coverage and supply chain coverage they have written. Additionally, each insurer must examine the policies it issued and explain the coverage each policy offers in regard to COVID-19, presently and as the situation develops.

While the construction industry historically has demonstrated that its number-one priority is to protect the safety and well-being of its workforce, it is now faced with the uncertainties related to combating the further spread of COVID-19.

The rise in “event-driven” litigation when securities suits are filed after an event, such as the COVID-19 pandemic, causes an unreasonable dip in a company’s stock prices and increased shareholder derivative litigation. Ultimately, how a company responds may subject its directors and officers to the scrutiny of a wide range of claimants, including shareholders, competitors, customers, vendors, suppliers, employees and regulatory entities.

AI companies that work with insurers to optimize claims processing are left with a valuable resource after the data collection is complete. This article addresses how the value of a neural network − learned intelligence through artificial intelligence − has been ignored and should be considered when an insurer considers outsourcing its claims processing.

The mothers of two former youth football players, each of whom died in their mid-twenties a decade after they last played youth football, sued for money damages and to enjoin advertising that “youth tackle football is safe for minor children.” In a decision of first impression, the U.S. District Court for the Central District of California granted Pop Warner Football’s motion for summary judgment against negligence and wrongful death claims.

The U.S. Department of Agriculture’s interim final rule for its Domestic Hemp Production Program, which was unveiled on October 31, 2019, has caused concern with several issues critical to the hemp and CBD industries, including what constitutes acceptable testing and sampling procedures. The interim rule states that all testing shall be performed by DEA-certified labs and that a failed test from a distinct lot may invalidate the entire harvest, which would cause major income losses for producers.

Two recent decisions touch upon the Holocaust Expropriated Art Recovery Act, which expanded the timeliness for actions to recover Nazi-looted artworks. The first decision by the Second Circuit allowed the Metropolitan Museum of Art to keep in its collection a monumental work by Pablo Picasso. The second upheld the return to the heirs of two gouaches by the Viennese modern artist Egon Schiele.

In the 1930s, Paul Friedrich Leffmann, a successful German-Jewish entrepreneur, was forced to sell his home and business and flee from Germany to Italy. In 1938, Leffmann and his wife sold their Picasso, The Actor, to escape the Nazi regime’s growing influence in Italy and relocate to Brazil. On the grounds that the 1938 sale was under duress, Leffmann’s great-grandniece and sole heir sought replevin of the painting from New York’s Metropolitan Museum Art, which had acquired it nearly 58 years ago.

An invaluable resource regarding so-called “apology laws,” the 2019 Medical Provider Expressions of Sympathy Comparative Law Review presents an overview of statutes addressing the admissibility of medical providers’ statements or expressions of sympathy, as well as supplemental information for consideration in states and territories without laws or statutes regarding such expressions.

The New York Legislature has passed a bill significantly expanding the state’s Human Rights Law. While press around the bill has focused on issues of sexual harassment, the bill in fact expands all employee protections under the state law and prohibits mandatory arbitration of all discrimination claims, regardless of protected class. Employers should begin preparing for both the immediate and incremental effects of the anticipated new law.

When the art world makes headlines, it becomes clear just how important the field is to all of us. From the upcoming sale at auction of the artwork that incorporates six of the world’s deadliest computer viruses, to a notorious master forger now auctioning off his works, to the discovery of a cache of Weegee’s lost photographs  in a Seattle home, Wilson Elser’s Art Law practice features summaries of recent news reports pertaining to art law and art markets.

When the art world makes headlines, it becomes clear just how important the field is to all of us. From the recent record-breaking sale of one of art history’s most evocative Impressionist images, to the national debate over the fate of Confederate monuments, to science helping hidden art emerge again in one of Vermeer’s greatest works, Wilson Elser’s Art Law Blog features summaries of recent news reports pertaining to art law and art markets.

The bill prohibits New York City employers from requiring a prospective employee to submit to a marijuana drug test as a condition of employment. The bill includes exceptions for safety and security sensitive jobs; those tied to a federal or state contract or grant; and law enforcement, commercial drivers, construction workers; and any position requiring the supervision and care of children, medical patients or vulnerable persons.

When the art world makes headlines, it becomes clear just how important the field is to all of us. From Notre Dame de Paris suffering a devastating fire, to the first-ever photograph of a Black Hole, to the discovery of ancient treasures in Lake Titicaca, Peru, Wilson Elser’s Art Law Perspectives blog features summaries of recent news reports pertaining to art law and art markets.

The Appellate Division has found that the essential function of a watchdog is to observe the examination and take notes, and be available to testify about the observation at trial. In contrast, if a plaintiff’s attorney would not be able to offer similar testimony without the risk of becoming a fact witness, such attorney is disqualified from representation.

Wilson Elser is pleased to provide the 2018 ESI Case Law Update, our annual compendium of cases dealing with issues and developments surrounding electronically stored information (ESI). It is a rare case that does not involve the preservation, review and production of ESI.  Your knowledge of the tools and regulations could mean the difference between sanctions and compliance.

New York’s Appellate Division, First Department held that donor records in an Organ Procurement Organization’s (OPO’s) possession are entitled to the same confidentiality as the records of hospital patients. This marks a major step forward in clarifying the state of the law as it relates to OPOs and is a key tool in empowering OPOs to defend against unauthorized disclosure of donor information.

In light of a recent decision in New York Superior Court, counsel must make certain that settlement agreements are explicitly worded to account for any change in the final CMS recovery amount and would be best served taking advantage of the expedited CMS “Final Conditional Payment Process” for obtaining a final determination to avoid any dispute.

After denying defendants’ Motion for Partial Summary Judgment, granting partial summary judgment to the plaintiff, and rejecting the Server Test relied on by internet publishers to shield themselves from copyright infringement liability when in-line linking to other websites, Judge Katherine Forrest certified her February 15, 2018, Opinion for Interlocutory Appeal. Thus, the potential showdown before the Supreme Court arising from a conflict with a 2007 decision by the Ninth Circuit Court of Appeals moves closer.

D.C. Circuit Court affirms grant of Google’s Motion to Dismiss for failing to remove a blog post, concluding that the Communications Decency Act immunizes website operators from liability for publication of third-party content even when they have content guidelines.

In denying defendants’ Motion for Partial Summary Judgment and granting partial summary judgment to the plaintiff, the U.S. District Court for the Southern District of New York rejected the Server Test relied on by internet publishers to shield themselves from copyright infringement liability when in-line linking to other websites. However, a potential showdown may arise from a conflict with a 2007 decision by the Ninth Circuit Court of Appeals.

Under 23 NYCRR Part 500, effective in March 2017, New York provided clear notice that it intends to hold directors and officers more responsible for ensuring that their companies are undertaking more active assessment of their own security policies and procedures. Even for those directors and officers whose companies are not subject to this Regulation, the responsibilities outlined in the enacted rules set forth a general standard of care that they, too, would be well advised to consider and follow. 

Although the Model Law adopted by the National Association of Insurance Commissioners is more rigorous than most existing state laws, it may pave the way for more uniform, and therefore more predictable, state-by-state data security and regulatory breach notification laws and standards applicable to insurers and other regulated insurance entities.

The commitment of 38 state governors to the cybersecurity goals announced by the National Governors Association demonstrates that states will continue to be a driving force in the evolution of U.S. data privacy and security laws and best practices, especially where the federal government has refrained from outlining a clear strategy at the state level.

Effective October 31, 2017, employers in New York City are prohibited from asking about a job applicant’s salary history during all stages of the employment hiring process. The new law also prohibits an employer who knows of a job applicant’s salary history from relying on that information in the determination of future salary.

Early in 2017 there were three notable developments in state notification laws: New Mexico enacted a new data breach notification law; Tennessee further amended its existing law to reinstate the encryption exemption; and Virginia amended its existing laws to address the continuing trend involving the compromise of personal information that could lead to tax fraud.

Based on a recent U.S. Supreme Court decision, employers who have challenged the enforceability of an EEOC subpoena at the district court no longer have to be concerned about the Ninth Circuit “second guessing” the lower court’s decision de novo. That said, lower court decisions will be harder to overturn on appeal based on the abuse of discretion standard.

Counsel to co-defendants or co-plaintiffs frequently enter into agreements that shield their communications under the “common interest doctrine” that extends the attorney-client privilege to discussions with parties that share a common interest. Under the doctrine, however, the attorney-client privilege is not waived when such communications are made between parties sharing a common legal interest.

The Digital Millennium Copyright Act protects internet service providers from liability due to potential copyright-infringing content website users can upload or post on websites and social media accounts. Limitations on liability are premised on strict compliance with certain preconditions, one of which − registration of a DMCA Agent with the U.S. Copyright Office − changed on December 1, 2016. Website operators need to comply by December 31, 2017, or lose their protection.

The New York Department of Labor’s proposed Wage Order increases the minimum salary requirement necessary for executive and administrative employees to be exempt from overtime. Employers will need to fast-track their re-budgeting efforts. New York’s minimum wage increase has already been enacted and will be in effect on December 31, 2016.

According to documents filed in California federal court on April 25, 2016, an attorney who registered domain names in her own name is refusing to relinquish control over several domain names after she left her prior firm. The bottom line is that online locations are now just as valuable, if not more so, than their real-property counterparts, and steps should be taken to ensure that each business or organization properly protects its interests.

According to the New York City Department of Sanitation, New Yorkers pay an estimated $12.5 million to transport an estimated 91,000 tons of plastic and paper carryout bags to landfills each year. Pending the mayor’s expected approval, a minimum five-cent fee per bag will take effect on October 1, 2016, with enforcement by the NYC Department of Consumer Affairs commencing on April 1, 2017. Stores that do not comply will pay a $250 fee for a first offense and $500 for any additional offense.

New York’s Appellate Division, Second Department recently reaffirmed that under the common law principle of waiver, an insurer cannot create coverage in third-party liability cases involving property damage where none exists under the policy simply by having failed to initially raise a coverage exclusion and, absent a showing of prejudice by the insured, the insurer will not be estopped from asserting the exclusion. 

The short-term tax benefits related to independent contractor status may not outweigh the financial penalties imposed on a company should a judicial or administrative body determine that the workers were misclassified. Additionally, a company may open itself up to investigation by state tax, unemployment insurance and workers’ compensation authorities and, if the misclassification was intentional, criminal penalties.

Until recently, Federal Rule 84 and associated Form 18 provided plaintiffs with the ability to file baseless complaints with no pleading on how a patent had been infringed. Over the years, defending frivolous lawsuits and bare-bones patent “troll” cases forced companies to expend millions of dollars unnecessarily, even leading to the demise of some companies.

New York City and State officials and legislators have united behind emergency measures to stop the spread of Legionnaires’ disease responsible for 12 deaths traced to the Legionella bacteria present in air conditioning cooling towers in the South Bronx. Building owners must pay for the required inspections and disinfection.

Since the 1980s, the National Labor Relations Board has followed a definition that requires joint employers to exercise “direct and immediate” control over the terms and conditions of employment. Finding that this standard has failed to keep pace with changes in the workplace and economic circumstances, the Board has issued a decision that may have far-reaching implications for any company that uses contractors, including large franchisors, which may now be required to bargain with the unionized employees of their franchisees.

A recent U.S. Supreme Court decision demonstrates that businesses and people should always proceed with caution when inducing others to use, or contributing to the use of, patented or potentially patented subject matter. Failure to confirm invalidity, when there is knowledge of the patent and knowledge of infringement, subjects parties to additional risk, potential liability, and possible damages for induced infringement or contributory infringement.

New York City’s Fair Chance Act alters provisions of the City’s Human Rights Law to prohibit employers from inquiring about a candidate’s criminal record until after they have made a conditional offer of employment. The new law, however, provides exemptions for public and private employers who are required by law to conduct criminal background checks and for several City agencies.

The U.S. Supreme Court recently had the opportunity to decide whether to extend the expiration of royalties for patent contracts –  taking a more flexible approach to bar royalty agreements that continue after a patent expires. Despite a creative attempt to apply copyright law to patents, the Court decided that patent royalty agreements do not extend beyond the patent term expiration.

The Federal Trade Commission has turned its attention to the growing movement of “crowdfunding,” the practice of funding a project or venture by raising many small amounts of money from a large number of people, typically via the Internet. While there are inevitable risks in contributing to an unfamiliar entity, consumers can find solace in the fact that those who engage in deceptive business practices may be subject to appropriate legal action. 

Recent decisions handed down that rely on Alice Corporation Pty. Ltd. v. CLS Bank International, et al., leave inventors and patent owners with credible concerns. Guidelines issued by the U.S. Patent and Trademark Office on subject-matter eligibility educate present and future inventors and patent owners on how to avoid an Alice rejection.

In 2013, the Third Circuit concluded that a reasonable observer would view a defendant’s Facebook posts as true threats, leaving the intent of the speaker irrelevant to establishing liability. The Supreme Court reversed in June 2015, vacating the conviction and holding that the test for determining whether a statement can be deemed a true threat must involve the intent of the poster. The Supreme Court, however, failed to provide guidance to lower courts on how to assess intent, leaving the standard somewhat uncertain.

“Jewel-Osco salutes #23 on his many accomplishments as we honor a fellow Chicagoan who was just around the corner for so many years,” proclaimed an ad in a special Sports Illustrated Presents issue honoring Michael Jordan on his induction into the Basketball Hall of Fame in 2009. However, just below that was the sponsor’s slogan “Good things are just around the corner.” Facing a motion for summary judgment on standing, Michael Jordan prevailed, at least for now, with an Illinois Federal District Court holding that there are material issues of fact precluding a finding as a matter of law that Michael Jordan transferred his identity rights.

On April 24, 2015, a Chinese court ordered an affiliate of New Balance Athletic Shoe, Inc. to stop using a trademark registered by a Chinese citizen in 1996. The company was also ordered to pay the plaintiff $16 million, which amounts to half the profits the defendant made during the period of infringement.

On May 7, 2015, the Senate Judiciary Committee and stakeholders discussed at length the provisions of the bipartisan Protecting American Talent and Entrepreneurship Act of 2015 and took into account certain comments. The so-called PATENT Act aims to curb abusive patent practices and litigation, although the debate in the Senate on whether the Act actually accomplishes this goal will continue.

Financial and insurance institutions must make cybersecurity a top priority. While not every company has the resources to pour into cybersecurity, every company should take these risks seriously. As states continue to become more active in this space, companies should proactively seek to be at the forefront of cyber security developments.

In a May 18, 2015, opinion, the U.S. Court of Appeals for the Federal Circuit reaffirmed that Samsung had violated design patents in Apple's iPhone. However, that opinion did not extend to Apple's trade dress. This means that the $930 million award will be reduced, but, in the long run, neither side got all it wanted.

The Internet Corporation for Assigned Names and Numbers recently approved more than a thousand new general top-level Internet domain names, one of which is “.sucks” owned by Vox Populi Registry Ltd. Though the subject of congressional hearings and under attack from all sides, Vox Populi is defending itself and the right to create a platform for “legitimate critical commentary.” Will the right to free speech and a capitalistic system, at least in the United States, prevail over the anger and mistrust of brand owners throughout the world?

For trademark owners, prosecuting domain-name cybersquatters is akin to a game of whack-a-mole. Once one infringing domain is successfully cancelled or transferred to the mark’s owner, numerous other similarly infringing domains can crop up overnight. Perhaps more frustrating to the trademark owner is the limited number of options available to combat serial cybersquatters. Trademark owners may, however, be able to add another weapon to their arsenal in the fight against cybersquatters – going after the domain registrars and hosting companies.

A recent decision by the United States Supreme Court delivered a clear message to copyright holders and those who wish to capitalize on those copyrights. The ruling states that invoking laches cannot restrict the relief proscribed by the Copyright Act’s three-year statutory time limit. Laches is an unreasonable delay in pursuing a right or claim in a way that prejudices the opposing party. The decision also set in motion a series of legal disputes regarding the decision’s applicability to the Patent Act’s six-year limitation on damages that may, again, require resolution by the Supreme Court.

If a person read all of the privacy policies encountered on a daily basis, it would take about 250 working hours per year, or about 30 workdays. If a user were to read all the online contracts encountered, the time commitment would be even greater. But is mere assent enough to signify that a user has had notice of the terms to which he or she agreed?

As part of its increased focus on cyber security, the New York State Department of Financial Services announced that it is broadening the scope of questions and topics in its current information technology examination framework. The Department requires insurers to provide a response to 16 questions about their overall cyber security posture by April 27, 2015.

statements of material fact or neglects to state a material fact. The March 25, 2015, decision by the U.S. Supreme Court has raised the burden of proof for plaintiffs bringing a Section 11 claim in securities law cases. Defendants, including accountants, will no longer be held strictly liable for opinions that later are found to be factually untrue.

A federal jury in Chicago will need to decide the merits of the legendary basketball player’s multimillion-dollar claim that Jewel Food Stores, Inc. violated the Illinois Right of Privacy Act when it used Jordan’s name and number “23” in an advertisement congratulating him on his induction into the Basketball Hall of Fame.

A California federal jury recently returned a verdict and awarded $7.36 million in damages, finding that Robin Thicke and Pharell Williams had copied Marvin Gaye’s 1977 song “Got to Give It Up” when writing Thicke’s 2013 hit, “Blurred Lines.” Leading on the network morning news programs, the coverage of this story and its impact on society’s views might be the bigger issue to emerge.

School officials are custodians of students, and states have adopted rules and regulations that give school officials even more power to protect students from bullying. States have added specific cyber-bullying language to their anti-bullying laws, codifying the notion that school officials have the discretion to act to protect students from bullying based on incidents outside of school. But are students’ passwords on social media websites fair game?

While cyber espionage, crimeware, and other types of cyber attacks and theft are nothing new, even for Sony, the FBI’s determination that North Korea was behind the recent devastating attack raises critical alarms. The attack did not merely harm Sony Pictures Entertainment’s (SPE's) intellectual property and data; it was intended to and did cause physical harm to its network and operations. North Korea literally planted and detonated a bomb within SPE’s systems. The implications for businesses, brokers and insurers are significant and raise additional concerns about Congress’s failure to extend the Terrorism Risk Insurance Act of 2002.

New York’s Department of Environmental Conservation is prepared to move forward on banning high-volume hydraulic fracturing based on the New York State Department of Health’s long-awaited report, which concluded that: “Until the science provides sufficient information to determine the level of risk to public health … and whether the risks can be adequately managed, high-volume hydraulic fracturing should not proceed in New York State.”

Earlier this year, a divided three-judge panel of the Ninth Circuit touched off a firestorm of copyright uncertainty when it floated the possibility of finding multiple copyrightable interests embedded in a single fixed work. Meanwhile, in the Second Circuit, the pendulum seemingly swung in the opposite direction against the rights of individual film collaborators. If both courts affirm the rulings before them, a Supreme Court inquiry is not out of the question.

The Ninth Circuit Court of Appeals recently issued an opinion concerning online agreements. “Clickwrap” agreements require users to click an “I agree” box, and “browsewrap” agreements allow users to proceed without giving assent. Enforceability of the latter types of agreements depend on whether a user has actual or constructive notice.

The Emmites alleged that exposures to asbestos at Union Carbide caused Mr. Emmite to develop asbestosis, which was a cause of his death. When Mr. Emmite died in 2005, it was before Chapter 90 took effect. When his family filed their wrongful death lawsuit in 2007, Chapter 90 was the law in Texas. The Texas Supreme Court majority held that the Emmites failed to comply with Chapter 90’s safety valve provisions, to the medical criteria requirements and rejected their argument that Chapter 90 as applied was unconstitutionally retroactive.

The Texas Supreme Court confirmed that the requirement to provide evidence of “approximate dose” applies in mesothelioma cases, not just asbestosis cases. Although the Texas Supreme Court expressly rejected the Court of Appeals statement that plaintiffs have the burden of proving that exposure to the defendant’s product was a “but for” cause of his mesothelioma, the Court held that proof of causation in multiple-source exposure cases still requires comparison of the causal role played by each source of exposure.

In a recent case before the New York Court of Appeals, energy company defendants argued that the state’s oil and gas law contained a so-called “supersession clause” that preempted all local zoning laws, such as the anti-hydrofracking rules at issue. The municipalities countered that zoning regulations were lawfully enacted pursuant to the home rule authority provided them by the state constitution. The court sided with the municipalities.

To date, only four reported decisions have addressed whether state laws are preempted in the wake of the U.S. Supreme Court’s landmark 2011 decision holding that the Clean Air Act preempts “any federal common law right to seek abatement of carbon-dioxide emissions from fossil-fuel fired plants.” Three of those decisions have rejected state law preemption and one has embraced it.

In a case of first impression in New York, a state trial court has ruled that a school district defending a bullying case under New York’s Dignity for All Students Act can face potential liability even if the bullying victim is not one its own students.

Two recent New York federal court decisions confirm that, under New York law, to sustain a claim against an insurer for breach of the covenant of good faith and fair dealing, the insured must demonstrate that the claim is based on a different set of facts than those for a claim for breach of contract under the policy.

Florida Federal Judge Approves Settlement Agreement Providing Payments to All Victims of Data Breach, Even Those Who Suffered No Monetary Loss Businesses should remember that strong security programs continue to be the best defense against both data breaches and potential data breach class action lawsuits. It is imperative that businesses of all sizes implement a comprehensive data protection plan that safeguards personal information and includes continual training and education.

In a case of first impression in New Jersey, a trial court has ruled that school districts defending bullying cases under New Jersey’s Anti-Bullying Bill of Rights Act and the New Jersey Law Against Discrimination can seek contribution from students accused of bullying and their parents.

Two recent holdings by the U.S. Supreme Court are considered a positive step for businesses in the hopes they will deter patent trolls (entities that hold a patent for a product or process with no intention of developing it) from filing frivolous lawsuits. The Supreme Court decisions make it easier for district courts to shift the attorneys’ fees of the non-prevailing party for lawsuits brought in bad faith or conducted in an abusive manner.

A New York appeals court recently sustained a direct suit by asbestos plaintiffs against the liability insurer of a dissolved corporate defendant. The court ruled that “substituted service” on the dissolved corporation’s insurer was permissible where the more traditional forms of service were unavailing and where the insurer was the “real party-in-interest.”

In a recent case, the Wyoming Supreme Court vacated a trial court decision upholding the decision of the Wyoming Public Records Commission that the ingredients in hydraulic fracturing formulas constitute “trade secrets.” The high court determined that the trial court was obligated to undertake an independent examination and exercise its own independent judgment as to whether the ingredients in the fracking formulas qualified as trade secrets. Accordingly, it reversed and remanded the matter to the trial court for further proceedings.

ICANN is tasked with implementing a new “privatized” system of Internet governance. If the U.S. National Telecommunications and Information Administration believes that the model developed by ICANN is sufficient to continue the smooth operation of the Internet without government oversight, it will allow its contract with ICANN to lapse in September 2015.

The West Virginia Supreme Court of Appeals decided that two instances of carbon monoxide exposure that happened in two different apartments in the same apartment complex during the same general time frame and from the same furnace constituted one occurrence, and were subject to a single limit of liability.

In a recent opinion, the New York Court of Appeals struck down property policy time limitation for replacement costs suits, holding it amounts to “claim nullification” where the insured could not have reasonably completed replacement work in the required time period.

The New York Court of Appeals sustained an insurer ‘s delay in disclaiming coverage based on the insured’s failure to cooperate when record facts confirmed the insurer issued a disclaimer as soon as reasonably possible after it determined that the insured would not cooperate in the defense, investigation or settlement of the claim. 

The U.S. Department of Transportation has for the first time issued a fine for a violation under the Foreign Air Carrier Family Support Act of 1997. Foreign and domestic airlines should take note of the potential penalties and ensure that their family assistance plans are adequate, adhered to and effectively implemented in the event of an aircraft accident in the United States. 

Given that banks and insurance companies are regulated differently and are subject to different solvency margins, the resistance by most state regulators and the NAIC and most insurance trade groups to growing federal efforts to insert the Federal Reserve Board into state regulation, including efforts to replicate bank solvency requirements in the insurance industry, will likely continue. 

A case recently decided by the Wisconsin Supreme Court illustrates an ongoing trend in asbestos case law. Even jurisdictions that tend to be more favorable for insureds are likely to sustain a broad asbestos exclusion that comprehensively and unambiguously excludes coverage for any asbestos-related losses, regardless of the underlying tort alleged.

An intermediate Illinois appeals court rejected the applicability of the absolute pollution exclusion to a claim involving obnoxious odors emanating from hog farm manure, reasoning that the claim did not involve “traditional environmental pollution” as required by an Illinois precedent interpreting the exclusion.

On December 10, 2013, New York’s highest court, the Court of Appeals, dramatically reversed itself after reargument in a personal injury case, Maria Auqui v. Seven Thirty One Limited Partnership et al. The new decision seemingly eliminates the ability to argue that a New York Workers’ Compensation Board finding of no disability bars the plaintiff from seeking recovery for continuing disability in a separate personal injury action.

In West Virginia, when the first named insured negotiates – and in fact specifically requests – a policy provision, then such provision will likely be enforceable against any other insureds under the policy or potential third-party beneficiaries, even if such parties are unaware of the existence of the provision in question.

Answering two certified questions of first impression in New York, the Court of Appeals has expanded vandalism coverage under a Named Peril property policy where there was proof of malicious intent to damage or destroy property, even where the acts in question were not directed at – and did not bring vandals in direct contact with – the covered property.

Insurers should review the various premiums, claims and administrative issues experienced as a result Superstorm Sandy to identify potential difficulties in complying with the standards set forth in the New York Department of Financial Services Circular Letter No. 8 of 2013 and establish an internal monitoring system for the adjudication of disaster-related claims to facilitate reporting, particularly where such reporting is required on a daily or weekly basis.

An insurer was held to have a duty to defend, but not indemnify, trademark infringement claims under an “advertising injury” provision of a commercial general liability policy because of ambiguity in the policy.

 

A June 13, 2013, decision by the Eighth Circuit Court of Appeals affirms that environmental damage stemming from the abandonment of lead concentrate mined and processed on an insured’s property falls within the scope of a comprehensive general liability policy’s absolute pollution exclusion.

The U.S. Supreme Court has changed the landscape of biotech companies, holding: “A naturally occurring DNA segment is a product of nature and not patent eligible merely because it has been isolated, but modified DNA may be patentable.”

The New York Department of Financial Services has issued a Fourth Amended Order, extending its moratorium on the enforcement of certain insurance law provisions until January 16, 2013.

Changes to the NAIC Insurance Holding Company System Regulatory Act and Model Regulation seek to increase regulatory oversight and examination of insurer groups and to assess overall “enterprise risk.” It is expected that states seeking accreditation by the National Association of Insurance Commissioners must have enacted either the Model Act or a “substantially similar” version of it, such as New York’s proposed third amendment.

As businesses and families that were caught in the path of Hurricane Sandy begin to survey the damage, insurers are feeling the first surge of many claims to come. Now’s the time to confer with Wilson Elser’s knowledgeable and adept insurance attorneys to be certain you’ve got all contingencies covered.

This is the first in a series of alerts designed to provide you with clarity and understanding of the important and significant issues raised by this unprecedented crisis.

Effective September 12, 2012, the National Association of Insurance Commissioners has amended Actuarial Guideline 38 in an effort to address reserving deficiencies in universal life products that employ secondary guarantees.

In a recent issue of first impression, a Connecticut Appellate Court held that extrinsic evidence is admissible in deciding a party’s intent for determining, in a historical context, what insurance policy was intended to be purchased.

The New York Department of Financial Services is seeking information from New York domestic life insurance companies concerning their use, and use by other companies within their holding company system, of affiliated captives or off-shore entities for reinsurance purposes.

A recent ruling allows insurers to enforce the motor vehicle exclusion in a homeowners’ insurance policy if the underlying factual allegations cannot be separated from the use of a motor vehicle.

Although requiring a party to defend itself in another country’s legal system imposes “unique burdens” that call for special scrutiny, the Fourth Circuit Court of Appeals concluded on July 9, 2012, in ESAB Group v. Zurich Insurance that a non-U.S. domiciled insurer had signaled that the burden of appearing in a forum such as South Carolina was “not exceedingly onerous” when it contracted to defend its insured on a worldwide basis.

Illinois appellate court warns litigants that an appellate brief cannot be a trial court pleading with a new cover, and all appellate briefs must follow the strict rules of factual and legal citation imposed by the reviewing courts.

Under Indiana law, to successfully disclaim coverage based on an absolute pollution exclusion, an insurer must demonstrate that the defined term pollutant “obviously includes” the contaminant for which the insurer is seeking to disclaim coverage.

The Connecticut Supreme Court’s holding in New London County Mut. Ins. Co. v. Nantes allows insurers to use the motor vehicle exclusion in a homeowners’ insurance policy if the insured was using the motor vehicle and/or gaining some benefit from the vehicle.

The New York State Department of Financial Services is again implementing an Insurer Climate Risk Disclosure Survey. As announced in a letter from the DFS dated March 2, 2012, the surveys are intended to be submitted on an insurer group basis. In New York, survey responses filed with the DFS will be made available to the public through a link on the DFS website.

Under Circular Letter 14 issued by New York’s Department of Financial Services, all domestic insurers will be required to submit to substantiation and validation of key components of their ERM function during a periodic statutory examination, a stand-alone examination or a market conduct examination.

The Office of the Attorney General, State of California has announced an agreement reached with the country’s largest operators of mobile application platforms, requiring increased enforcement and awareness efforts regarding the requirement for mobile applications (Apps) to post privacy policies. Companies producing such Apps should ensure that their offerings are compliant with California law.

In a case of national first impression, the Arkansas Supreme Court held that foreign manufacturers of products that end up in the United States through the “gray market” will not be subject to “general” jurisdiction in the forum state unless they have “continuous, systematic and substantial” general business contacts with that state, which is fairly atypical. In addition, the decision impacts U.S. subsidiaries of foreign manufacturers with gray market issues that are dragged into products liability litigation simply by virtue of having a name similar to that of the manufacturer.

First Department finds the “status and business” enterprise exclusions in a professional liability policy to be “patently inapplicable” in legal malpractice claims where there was no allegation that the insured negligently rendered legal services to his business enterprise.

Wilson Elser attorneys co-author article on hydrofracking in the Marcellus Shale.

Bloomberg Law Reports® Technology Law has published a two-part article written by Adam Bialek that examines the punitive response to cyber piracy.

The California Supreme Court held that the doctrine of strict liability was never intended to impose absolute liability, which would place an excessive and unrealistic burden on product manufacturers who should not be required to insure and warrant against the potential risks involved with another manufacturer’s product.

The article entitled, "Contemporary Sports Liability," tackles the assumption of risk for both players and spectators and the obligation of owners and operators to provide reasonably safe premises for both parties.

In Montana, an insured’s failure to provide any notice of a claim can result in prejudice to the insurer as a matter of law, thereby relieving the insurer from any liability for a suit by an underlying claimant to recover on a default judgment entered against the insured – absent proof that the insurer waived its right to rely on the notice provision. This is particularly true where the underlying claimant is aware of the insurer and could have notified the insurer itself.

Taking its place alongside generic top-level domain (gTLD) names such as .com, .edu, .net, .gov and host of others, .xxx can pose a threat to brand owners that want to distance themselves from the adult entertainment industry.

Amid disagreement among Illinois appellate courts, the Illinois Supreme Court will hear and should ultimately rule on employer liability in secondhand asbestos cases.

The Illinois Supreme Court ruled as a matter of first impression that parents asserting a claim of wrongful birth may not recover expenses incurred for the care and support of their disabled child after the child reaches the age of majority. Clark v. Children's Memorial Hospital, No. 108656, 2011 WL 1733532 (Ill. May 6, 2011). This significant victory was won with the amicus curiae assistance of Wilson Elser's Appellate Practice and its co-chair Melissa Murphy-Petros.

In a case that pitted Union Carbide against its excess insurers, New York's highest court held that aggregate policy limits of a multiyear excess policy should follow the form of the underlying policy and be annualized.

Partner Carl Pernicone contributed to the Business Insurance white paper entitled “Underground liability: Hydraulic Fracturing Raises Environmental Concerns."

The U.S. Consumer Product Safety Commission has issued a formal definition of "children's product" that resolves the dispute over age cutoffs.

The life settlement market has been a focus of attention in the life insurance industry over the last several years.  A "life settlement" generally occurs when the owner of a life insurance policy sells the policy to a third party in exchange for a lump sum payment – the life insurance policy typically remains in force and the death benefit is paid to the beneficiary named by the new third-party owner.

In its May 20, 2010 decision in Travelers Indem. Co. v. Orange & Rockland Utils., Inc. (2010 NY Slip Op 04254) (ORU), the Appellate Division, First Department clarified the applicability of the so-called "Statutory Pollution Exclusion" and the merits of an insurer's late notice defense in a pollution liability claim.

Lending clarity to the increasing controversy surrounding Medicare's recovery rights, the New Jersey Appellate Division, in an unpublished decision, has indicated a clear intent that Medicare's recovery rights under the Medicare Secondary Payment Statute ("MSPS") are not preempted by state law, nor does the New Jersey collateral source statute permit allocation of an award to damages other than medical expenses.

In World Harvest Church, Inc. v. GuideOne Mutual Insurance Co., 2010 Ga. LEXIS 365 (May 3, 2010), the Supreme Court of Georgia answered certified questions from the U.S. Court of Appeals for the Eleventh Circuit regarding the specificity required for an effective reservation of rights letter and whether an insured must show prejudice for an insurer to be estopped from denying coverage under Georgia law.

The article, published in the New York Law Journal, discusses increasing skepticism in trial and appellate courts regarding the guarantee of confidentiality of a health care provider's quality-assurance materials (and the resulting privilege against discovery in litigation).

In December 2009 and January 2010 Environmental Alerts, Wilson Elser reported on several  recent federal court decisions concerning whether to allow private claims predicated on the federal common law of nuisance against parties whose greenhouse gas emissions have allegedly contributed to global warming.  As reported in the previous alerts, the courts addressing this issue have reached conflicting conclusions as to whether such claims may stand.

The U.S. Environmental Protection Agency (EPA) has enacted the Renovation, Repair and Painting (RRP) Rule, developed under the Toxic Substances Control Act, going into effect on April 22, 2010, which imposes a new set of requirements for contractors and property owners and managers who renovate, repair or prepare surfaces for painting in pre-1978 rental housing or space rented by child care facilities.

Wilson Elser's Appellate Practice Group has recently made new law in Illinois with respect to pleading causes of action for defamation per se.  In Green v. Rogers, --- N.E.2d ---, 2009 WL 3063399 (Ill. Sept. 24, 2009), Group Co-Chair Melissa A. Murphy-Petros (Of Counsel-Chicago) convinced the Illinois Supreme Court to hold, as a matter of first impression, that such claims must be pled with the same specificity and particularity as that required in pleading fraud claims.  This ruling not only secured dismissal of the complaint against Wilson Elser's client, but also established new law favorable to defamation defendants throughout the state.

During its Fall National Meeting, the National Association of Insurance Commissioners' ("NAIC") Government Relations Leadership Counsel ("GRLC") approved for submission to Congress the Reinsurance Regulatory Modernization Act of 2009 (the "Act"), which would modernize the regulation of reinsurance by state insurance regulators.  The Act is intended "to facilitate cross-border reinsurance transactions and to enhance competition within the U.S. market, while ensuring that U.S. insurers and policy holders are adequately protected against the risk of insolvency," according to a statement by Roger Sevigny, New Hampshire Insurance Commissioner and President of the NAIC.

In today's tough economic times, many municipalities are seeking to enter into contracts with insurers for the environmental remediation of contamination caused by an insured's negligence, i.e. an excavating company.  Often, these agreements seek to saddle insurers with open-ended responsibility for remediation work.  As discussed below, insurers can avoid these types of agreements and still provide the remediation that the municipality is seeking.

On July 29, 2009, the Federal Trade Commission ("FTC") announced that the implementation of the "Red Flags" rule, requiring most businesses to adopt a written data security and breach policy, has been postponed by three months, to November 1, 2009.  The FTC has cited the need to assist and educate small businesses with low risk of security breaches regarding the required conduct under the rule.  Businesses now have additional time to prepare for the impact of the rule by bringing their companies or practices into compliance with the rule's requirements.

On June 18, 2009, a verdict was returned in the case of Capitol Records, et al. vs. Jammie Thomas-Rasset finding a private individual guilty of copyright infringement for sharing 24 songs on a popular file sharing network.  In the first case brought by the recording industry to go to a jury, the plaintiff was awarded $80,000 in damages per song, totaling $1.92 million.

On June 17, 2009, President Obama announced a Financial Regulatory Reform U.S. Plan ("U.S. Plan") which is designed to overhaul the financial regulatory system by, among others, creating a systemic risk regulator, enhancing the roles of existing federal regulators, and creating a consumer protection agency.  The U.S. Plan was well received by the National Association of Insurance Commissioners, as well as by several insurance and banking trade groups.

The Mexican government recently imposed import tariffs on $2.4 billion of U.S. goods after the United States suspended a program allowing Mexican trucks to deliver goods across the border.  When the U.S. closed the southern border to Mexican trucking in March, Mexico promised to retaliate.  Mexico has released a list of 89 U.S. products that will face tariffs of 10 percent to 45 percent.

The risks that the insurance industry as a whole, and liability insurers in particular, face are being altered by climate change.   Experts may debate the scope of investment that the world needs to make to combat global warming, but the forecasts are all measured in trillions of dollars.

On April 17, 2009, the Obama administration's Environmental Protection Agency ("EPA") issued two proposed findings regarding the following greenhouse gases ("GHGs"): carbon dioxide; methane; nitrous oxide; hydrofluorocarbons; perfluorocarbons; and sulfur hexafluoride.

In its March 24, 2009, decision in Liberty Mutual Ins. Co. v. Lone Star Industries, Inc. et al., 290 Conn. 767 (2009), the Connecticut Supreme Court clarified Connecticut law concerning the interpretation of exclusions in insurance policies.

Recent rulings from the Supreme Courts of Illinois and Wisconsin demonstrate that these states have joined the increasing number of jurisdictions that have applied "time and space considerations" in quantifying the number of occurrences in claims involving multiple losses.