Publications
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Meer and DAC Beachcroft London Attorneys Co-Author Article on Legal Privilege for Forensic Reports
DAC Beachcroft Articles
February 28, 2023
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Practical Implications of Travelers v. ICS for Cyber Insurance Brokers, Carriers and Policyholders: Emerging Trends & Predictions – Takeaways from the Cyber Insurance Webinar
Cyber Insurance Trends & Predictions
February 8, 2023
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.
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The D&O Diary Publishes Meer on Cryptocurrency's Impact on Directors and Officers
The D&O Diary
February 7, 2023
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New York’s Governor Vetoes Expansion of Wrongful Death Damages – For Now
New York’s Governor Vetoes Expansion of Wrongful Death Damages – For Now
February 1, 2023
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.
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Center for Art Law Publishes Farmer, Leitner and Maharaj on Warhol v. Goldsmith SCOTUS Oral Arguments
Center for Art Law
October 22, 2022
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Globe Law and Business Chapter on U.S. D&O Liability Exposure by Meer and Blair
Directors' Liability and Indemnification: A Global Guide
October 20, 2022
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ESG Risks in the Cannabis Industry
Bloomberg
September 9, 2022
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What’s the Risk? What Passengers in Rental Cars in South Carolina Should Know
South Carolina Lawyer
August 31, 2022
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First DOJ NFT Insider Trading Charges Mark New Enforcement Era
Bloomberg Law
June 29, 2022
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U.S. Supreme Court Refuses to Hear Medical Cannabis Workers’ Compensation Case
U.S. Supreme Court Refuses to Hear Medical Cannabis Workers’ Compensation Case
June 22, 2022
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.
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Intellectual Property & Technology Law Journal Publishes Bialek on New DOJ Guidelines for Web Accessibility
Intellectual Property & Technology
May 25, 2022
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Law360 Publishes Buchalski and Heck on Workers’ Compensation Claims on Federal Lands
Law360
April 26, 2022
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California Federal Court Rules No Duty to Defend Opioid Lawsuits
California Federal Court Rules No Duty to Defend Opioid Lawsuits
April 19, 2022
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.
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Intellectual Property & Technology Law Journal Publishes Bialek on Web Accessibility Litigation
Intellectual Property & Technology Law Journal
April 7, 2022
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Web Accessibility Claims Put Institutions of Higher Learning at Risk
Web Accessibility Claims Put Institutions of Higher Learning at Risk
March 7, 2022
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. -
Overview: CPLR Amendments to §3101(f) and New §3122-b Insurance Disclosure Laws
CPLR Amendments to §3101(f) and New §3122-b
March 1, 2022
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.
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ESG Risks for Cannabis Companies Will Impact Directors and Officers
ESG Risks for Cannabis Companies Impact Directors and Officers
February 23, 2022
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. -
Bloomberg Law Publishes Meer and Pernicone on D&O Liability in Environmental Pledges
Bloomberg Law
February 4, 2022
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Perfect 10 Still Standing as Defense to Embedding, Highlighting Differences in Circuit Court View of Copyright Infringement
Differences in Circuit Court View of Copyright Infringement
February 4, 2022
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.
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NYC Issues Guidelines on Private Sector Vaccine Mandate
NYC Guidelines on Private Sector Vaccine Mandate
December 20, 2021
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. -
Daily Business Review Publishes Zibas and Badway on Navigating Copyright Laws While Operating Online Businesses
Daily Business Review
December 8, 2021
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Cannabis: A Primer for New York Employers
Cannabis: A Primer for New York Employers
December 6, 2021
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.
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Daily Journal Publishes White and Breen on COVID-19 Business-Related Insurance Claims in Ninth Circuit
Daily Journal
October 11, 2021
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The New York HERO Act: Recent Changes & Upcoming Deadlines
New Model Plans under the NY HERO Act
September 30, 2021
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. -
PLUS Blog Features Meer and Pernicone on Climate Change and D&O Liability
Professional Liability Underwriting Society
September 22, 2021
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The Practical Lawyer Publishes Manisero on CAMs Disclosures for Outside Auditors
The Practical Lawyer
September 2, 2021
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Bialek Authors Article for Intellectual Property & Technology Law Journal on Art v. Copyright Law Using Warhol Case as Basis
Intellectual Property & Technology Law Journal
July 29, 2021
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Updated! Medical Malpractice & COVID-19: A Comparative Law Review
July 12, 2021
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. -
PLUS Blog Features Article by Meer on Corporate Liability Concerns and BIPA
Plus Blog
June 30, 2021
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The Growing Biometric Privacy Liability
The number of electronic privacy statutes enacted in the United States and abroad has grown substantially
June 29, 2021
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Cannabis Directors and Officers Liability: Cause for Optimism?
Cannabis Directors and Officers Liability
June 24, 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. -
Journal of Texas Reprints White and Breen Article on Insurance Implications of COVID-19
Journal of Texas: Winter 2020-2021 Volume
April 16, 2021
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The Journalism Competition and Preservation Act of 2021: Conflicts between Social, Political and Legal Aspects of Major Internet Platforms’ Use of Copyrighted News Material
Use of Copyrighted News Material by Major Internet Platforms
March 31, 2021
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.
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Amendment to New York City’s Fair Chance Act Further Prohibits Employers from Basing Personnel Decisions on Criminal History
Amendment Strengthens NYC’s Fair Chance Act
January 22, 2021
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.
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California Federal Court Dismisses Claim Against Broker for Alleged Failure to Procure Business Interruption Coverage for COVID-19
Broker’s Alleged Failure to Procure BI Coverage for COVID-19
January 8, 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. -
Mandatory COVID-19 Vaccination Programs
Mandatory COVID-19 Vaccination Programs
December 16, 2020
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.
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Embedding in a State of Flux: New York Courts Challenge Decade Old Reasoning from the Ninth Circuit
DRI: The Voice
December 9, 2020, Volume 19, Issue 49
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HHS Secretary’s Fourth Amendment to PREP Act Declaration Clarifies Its Intent for Federal Jurisdiction and Broad Application to COVID-19-Related Claims
Fourth Amendment to PREP Act Declaration Issued
December 4, 2020
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. -
Embedding in a State of Flux: New York Courts Challenge Decade Old Reasoning from the Ninth Circuit
NY Courts Challenge Ninth Circuit’s Reasoning on Embedding
November 10, 2020
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.
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COVID-19 Moves ADA Compliance for Websites to the Forefront
In-House Defense Quarterly
Fall 2020
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Guide to NTSB Investigations
September 25, 2020
Wilson Elser’s Guide to National Transportation Safety Board Investigations prepares transportation providers, manufacturers and pipeline operators from various industries for a NTSB investigation. -
Workers’ Compensation Liability & COVID-19: A Comparative Law Review
September 24, 2020
Wilson Elser attorneys present the current statutory framework, recent changes to the law in response to the novel coronavirus pandemic. -
DOL Issues Revised Regs on Paid Sick Leave, Expanded Family and Medical Leave under the FFCRA
DOL’s Revised Regs on Paid Sick Leave, Expanded Family and Medical Leave under the FFCRA
September 15, 2020
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. -
COVID-19 Moves ADA Compliance for Websites to the Forefront
White Paper on Website Compliance
Summer 2020
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Protecting Your Rights and Assets While Minimizing Exposure
DRI: For the Defense
August 2018
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Texas Federal Court Rules No Coverage for COVID-19 Losses
Texas Federal Court Rules No Coverage for COVID-19 Losses
August 25, 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.
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California State Court Grants Demurrer in Favor of Insurer: COVID-19 Does Not Constitute Physical Loss
CA: COVID-19 Does Not Constitute Physical Loss
August 25, 2020
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.
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COVID-19 Business Interruption Coverage Decisions
COVID-19 Business Interruption Coverage Decisions
August 24, 2020
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. -
DC Court Rules COVID-19 Closure Orders Are Not “Physical Loss”
DC Court Denies BI Coverage for COVID-19 Losses
August 14, 2020
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.’”
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Missouri Court Denies Insurer Motion to Dismiss, Finding Insured Plausibly Pled COVID-19 Claims within Terms of Commercial Property Policy
COVID-19 Claims Plausible within Terms of Commercial Property Policy
August 14, 2020
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.
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U.S. District Court Largely Rejects DOL Arguments and Sides with State of New York on Implementation of Families First Coronavirus Response Act
US District Court Strikes Down Four Key Rules of FFCRA Implementation
August 5, 2020
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.
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Update: California Legislation to Include “Rebuttable Presumptions” Supporting COVID-19 Business Interruption Coverage
California Legislation on COVID-19 Business Interruption Coverage
July 27, 2020
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. -
Michigan Judge Rules Direct Physical Loss Required to Trigger Business Interruption Coverage
Direct Physical Loss Required for Business Interruption Coverage
July 23, 2020
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. -
The U.S. Supreme Court Finds Booking.com Registrable, Leading to Potential Growth in Generic.com Brand Building
U.S. Supreme Court Finds Booking.com Registrable
July 9, 2020
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.
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The Impact of Business Closures on Disability Lawsuits Under the ADA
Corporate Compliance Insights
June 23, 2020
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Update: Legislation for Business Immunity from Civil Liability for COVID-19 Claims Is Trending
Louisiana Legislation for Business Immunity from Civil Liability for COVID-19 Claims
June 19, 2020
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.
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Legislation for Business Immunity from Civil Liability for COVID-19 Claims Is Trending
Trending: Legislation for Business Immunity from Civil Liability for COVID-19 Claims
June 18, 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.
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Lessons from a Number 2 Pencil
DRI: The Voice
June 3, 2020
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State Insurance Commissioners Issue Notices Regarding Business Interruption Coverage
State Insurance Commissioners on Business Interruption Coverage
May 27, 2020
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.
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What’s the Big Deal About Privacy? How Artificial Intelligence Is Making It Critical to Control Transactions of Data
In-House Defense Quarterly
Spring 2020
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House Proposes “Reinsurance Backstop” to Cover Insurance Industry Losses Due to Pandemic-Related Claims
Proposed Pandemic Risk Insurance Act of 2020
May 1, 2020
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.
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Employment Law Issues Related to the COVID-19 Pandemic – Questions and Answers
April 27, 2020
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. -
Best Practices for Commercial Property Owners/ Operators: Phase One of Reopening the Economy
Phase-One Reopening of Our Economy: Best Practices
April 27, 2020
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.
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South Carolina Joins States Proposing Legislation to Mandate Insurers Pay COVID-19 Losses
UPDATE: SC Joins States Proposing Legislation to Require Insurers to Cover COVID-19
April 20, 2020
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. -
Employment Law Issues in the Face of the COVID-19 Pandemic – Questions and Answers
April 17, 2020
The document answers questions posed by employers who are navigating an uncertain business environment and advises on new state and federal regulations.
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The Impact of the Global COVID-19 Pandemic on the Insurance Industry
DRI: For the Defense
April 2020
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Update: Pennsylvania Joins States Proposing Legislation to Require Insurers Cover COVID-19
UPDATE: Pennsylvania Joins States Seeking to Require Insurers to Cover COVID-19
April 14, 2020
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.
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Navigating Government-Mandated Order to Shut Down Construction Sites: Avoiding Perils of Compliance
Compliance with Government Mandate to Shut Down Construction Sites
April 14, 2020
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.
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Update: Louisiana Joins States Proposing Legislation to Require Insurers to Cover COVID-19
UPDATE: Louisiana Joins States Seeking to Require Insurers to Cover COVID-19
April 8, 2020
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.
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33 Members of California Congressional Delegation Ask CA Insurance Commissioner to Ensure Access to Business Interruption Insurance
CA Congressional Delegation Members Protest Business Interruption Coverage Denials
April 7, 2020
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.
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Employment Issues Related to the COVID-19 Pandemic: A Comparative Law Review
April 6, 2020
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. -
The New York Shared Work Program – An Alternative to Employee Layoffs
The New York Shared Work Program – An Alternative to Employee Layoffs
April 6, 2020
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. -
SBA Issues Final Interim Rules for CARES Act Paycheck Protection Program
ADDENDUM: SBA Final Interim Rules for CARES Act Paycheck Protection Program
April 6, 2020
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Update: New York Joins States Proposing Legislation to Require Insurers Cover COVID-19
UPDATE: New York Joins States Seeking to Require Insurers to Cover COVID-19
April 2, 2020
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.
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Small Business Administration Announces Access to Emergency Relief Loans
SBA Rolls Out Paycheck Protection Program
April 2, 2020
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.
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Managing Client Relationships While Transitioning to a Remote Legal Practice and Moving Forward in a Crisis: A Positive Perspective
Building Client Relationships and a Virtual Practice in a Crisis
April 1, 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.
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New Jersey, Ohio and Massachusetts Legislatures Attempt to Mandate Eradication of “Virus Exclusion” in Business Interruption Policies
NJ, OH and MA Attempt to Drop “Virus Exclusion” in Business Interruption Policies
March 30, 2020
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.
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NYDFS Instructs Insurers to Provide Coverage Information and Explanation of Benefits Regarding COVID-19
Insurers to Provide Info on Coverage and EOB for COVID-19
March 25, 2020
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.
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NY Construction: Limiting the Risk of Coronavirus
NY Construction Site Safety: COVID-19
March 23, 2020
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. -
Designating Access to Cannabis an Essential Service amid COVID-19 Pandemic
Designating Access to Cannabis an Essential Service
March 20, 2020
Access to cannabis used for medical purposes varies greatly state to state. Regardless of the state distribution model, a strong argument can be made that access to cannabis through retail stores and delivery services should be included as an essential service and remain available to the public during the COVID-19 Pandemic. -
Coronavirus: Factors for the Insurance Industry to Consider − Part 4 Directors & Officers (D&O) Insurance
Coronavirus: Factors for the Insurance Industry to Consider − Part 4
March 18, 2020
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. -
Hemp Regulations Create Compliance Challenges
Claims magazine
March/April 2020
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What’s the Big Deal about Privacy?
How Artificial Intelligence Is Making It Critical to Control Transactions of Data
Influence of Artificial Intelligence on Data Transactions
January 30, 2020
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.
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District Court Grants Summary Judgment in Youth Football CTE Case
District Court Grants Summary Judgment in Youth Football CTE Case
January 2, 2020
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. -
USDA's Hemp Regulations Create Challenges for Hemp and CBD Producers
USDA Interim Final Rule for U.S. Hemp Production Program
December 19, 2019
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.
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Informed Insurance: Thought Leadership 2019/20
September 20, 2019
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Andy Warhol Foundation Wins Copyright Lawsuit Over Prince Portrait & More Art World Headlines
Andy Warhol Foundation Wins Copyright Lawsuit Over Prince Portrait
July 26, 2019
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New York’s Appellate Division Upholds Return of Artworks to Heirs
Diverse Decisions on Holocaust Expropriated Art Recovery Act
July 17, 2019
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. -
Second Circuit Holds New York’s Met Museum Can Keep Picasso’s The Actor
NY’s Met Museum Keeps Possession of “Monumental” Picasso
July 2, 2019
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. -
2019 Medical Provider Expressions of Sympathy Comparative Law Review
July 2019
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. -
Expansive Changes Coming to the New York State Human Rights Law
Expansive Changes NYS Human Rights Law
June 24, 2019
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.
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The Deadliest Laptop in the World Is Up for Art Auction & More Art World Headlines
The Deadliest Laptop in the World & More Art World Headlines
May 31, 2019
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. -
Claude Monet’s Haystacks Painting Breaks Records at Auction & More Art World Headlines
Claude Monet’s Haystacks & More Art World Headlines
May 20, 2019
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. -
Digital Technology Does Not Follow First Sale of Tangible Equivalents
DRI: In-House Defense Quarterly
Spring 2019
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New York City Council Passes Bill Banning Pre-employment Marijuana Drug Testing
NYC Ban on Pre-employment Marijuana Drug Testing
April 24, 2019
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.
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Notre Dame de Paris & More Art World Headlines
April 17, 2019
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. -
Directors and Officers: Be Wary of Growing Cyber Responsibilities
BLD Financial Lines Newsletter
December 2018
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IME "Watchdog" Companies: Challenging the Scope of Their Services and Ability to Testify at Trial
Observer’s Role in Independent Medical Examinations
August 28, 2018
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.
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Showdown at SCOTUS Looms as SDNY Judge Certifies Her Opinion on Embedded Tweets for Interlocutory Appeal
DRI: The Newsletter of the Intellectual Property Litigation Committee
August 22, 2018
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SCOTUS Showdown Will Have to Wait as Second Circuit Denies Petition to Review SDNY Rejection of Server Test for Copyright Infringement
The National Law Review
July 19, 2018
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SCOTUS Showdown Will Have to Wait as Second Circuit Denies Petition to Review SDNY Rejection of Server Test for Copyright Infringement
Petition to Review SDNY Rejection of Server Test for Copyright Infringement Denied
July 19, 2018
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2018 ESI Case Law Update
June 2018
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.
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New York’s Appellate Division Rules on Confidentiality of Organ Procurement Organization Records
Confidentiality Protections for Records of Organ Procurement Organizations
June 6, 2018
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.
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Medicare Secondary Payer Act Alert
Alert: Medicare Secondary Payer Act
April 12, 2018
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.
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Showdown at SCOTUS Looms as SDNY Judge Certifies Her Opinion on Embedded Tweets for Interlocutory Appeal
SDNY Judge Certifies Rejection of Server Test for Copyright Infringement to Second Circuit
March 20, 2018
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.
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The Secret Lives of Apps
Professional Times
March 6, 2018
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Communications Decency Act Protects Website Operators from Liability Despite Blogger Content Policy
CDA Immunity Applies Despite Website Standards of Decency
March 1, 2018
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.
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Embedded Tweets Violate Exclusive Display Right, Setting Up Possible Showdown at SCOTUS, and Cause Uncertainty for Website Operators
SDNY Judge Eviscerates Server Test for Copyright Infringement
February 28, 2018
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.
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Beware: Texts and Wearable Data Must Be Preserved, Too
The Legal Intelligencer
February 5, 2018
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3D Printed Implants Pose Challenge for Product Regulators
Law360
January 10, 2018
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Where Moral Rights May Conflict with the Removal of Confederate Statues
New York Law Journal
December 14, 2017
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Alternative Dispute Resolution for Accounting and Related Services Disputes
CPA Journal | Dispute Resolution
December 2017
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The Hub: Transportation News & Insights
Quarterly Digest from Wilson Elser’s Transporation Practice
December 2017
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What New Cyber Protocol Rules in New York Mean for Directors and Officers
NY Department of Financial Services Cybersecurity Regulation
December 6, 2017
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.
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NAIC Adopts Insurance Data Security Model Law
NAIC Insurance Data Security Model Law
November 29, 2017
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.
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Information Law Journal: Francoeur and Geary on Social Media Discovery
ABA’s Information Law Journal
September 26, 2017
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Governors of 38 States Join a Cybersecurity Compact
Governors of 38 States Join a Cybersecurity Compact
August 15, 2017
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.
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When Safety Features Are Optional, Manufacturers Beware
Law360
July 26, 2017
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Smart Home Technology: Outpacing Guidelines for Fire and Explosion Investigations
The SciTech Lawyer
Summer 2017
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The Triple Threat of the Internet of Things
Law360 | Expert Analysis
June 15, 2017
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“Plain Paper” Financial Statements Made Not So Plain: An Overview of SSARS 21
CPA Journal
May 2017
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NYC Law Prohibits Employers from Asking Job Applicants for Salary History
NYC Bans Asking Job Applicants for Salary History
May 24, 2017
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.
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Liability Risks of Automation and Connectivity in a Technologically Advanced World
International Comparative Legal Guide: Product Liability 2017
May 21, 2017
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Recent Updates to State Data Breach Notification Laws in New Mexico, Tennessee, Virginia
Data Breach Notification Laws: NM, TN, VA
May 1, 2017
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.
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U.S. Supreme Court Clarifies the Extent of Judicial Review on Motions to Quash EEOC Subpoenas
Judicial Review on Motions to Quash EEOC Subpoenas
April 5, 2017
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.
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Attorneys: A Common Interest Agreement May Not Be Worth the Paper It’s Written On
Attorney-Client Privilege & the Common Interest Doctrine
March 22, 2017
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.
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An Employment Policy Is Only Good if the Company Enforces It
New York Law Journal
February 27, 2017
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Website Operators Must Comply with New DMCA Agent Registration Procedures or Risk Liability for Copyright Infringement
Compliance: New DMCA Agent Registration Procedures
January 20, 2017
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.
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The Not-So-Settled Absolute Priority Rule: The Continued Threat of Priority-Deviation Through Interim Distributions of Assets in Chapter 11 Bankruptcy
Seton Hall Circuit Review: Vol. 13:Iss.2, Article 5.
2017
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New York’s Nonexempt Wage and Salary Requirements Still in Play
New York’s Nonexempt Wage and Salary Requirements
December 6, 2016
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.
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Insurer’s Claim File in the Crossfire of Discovery
New York Law Journal, Insurance Law
October 24, 2016
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Law360 Publishes Vignali Article on Successor Firm’s Warranty Obligations
Law360
October 18, 2016
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Social Media Investigations: Digging Deep, or Just Scratching the Surface
New York Law Journal
October 3, 2016
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Emergency Room Liability: Raising the Hurdle of Requisite Proof While Lowering the Damage Caps
DRI: For the Defense
August 2016
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Dealing with Product Liability Down Under
Law360
July 11, 2016
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Law Firm’s Suit against Partner over Domain Name Highlights Essential Control of Proper Registration
Register Domain Names Properly to Avoid Litigation
June 30, 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.
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Cyber Best Practices for Attorneys
CyberPro
Spring 2016
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New York City to Impose Minimum Five-Cent Fee to Curb the Use of Plastic and Paper Bags
NYC to Impose Fee on Plastic Bags
May 18, 2016
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.
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Navigating Contractual Indemnification and Other Insurance Issues
Westchester County Business Journal
May 5, 2016
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Insurer Found Not to Have Waived a Property Damage Policy Exclusion That Was Omitted in Initial Coverage Letter
Failure to Cite Exclusion in Initial Coverage Letter
April 18, 2016
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.
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The Art of the Expert Affidavit: Lessons from the Appellate Division
New York Law Journal
April 13, 2016
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Creating a Records Management Policy and Enforcing It
Westchester County Business Journal
March 17, 2016
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First Circuit Allows FedEx Drivers to Continue with Wage-and-Hour Claims under Massachusetts Wage Act
Misclassification of Workers in Wage Disputes
March 2, 2016
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.
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Methods for Asserting Objections under Amended Rule 34
Law360
March 2, 2016
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Will Changes to Federal Rules Reduce Scope of Discovery?
Law360
December 11, 2015
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Supreme Court Adopts Amendments to Federal Rules That May Deter Patent Infringement Lawsuits, Especially Those Filed by Non-practicing Entities
New Patent Pleading Standard Effective in December 2015
November 2, 2015
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.
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Sexual Orientation Discrimination in the Summer of #LoveWins
New York Law Journal
October 19, 2015
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NYC Institutes New Requirements for Cooling Towers in Wake of Legionnaires’ Disease Deaths
New York Mobilizes to Halt Legionnaires’ Disease
September 17, 2015
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.
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NLRB Issues Controversial Decision Changing the Standard for Joint Employer Status
NLRB Changes Standard for Joint Employer Status
August 28, 2015
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.
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Legal Holds in Response to Data Breaches
DRI: In-House Defense Quarterly
Summer 2015
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Hope for Computer-Related Patents
IP Litigator
July/August 2015
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U.S. Supreme Court Holds Defendant’s Belief a Patent Was Invalid Is Not a Defense to an Induced Infringement Claim
Patents: Belief of Invalidity Never a Valid Defense
July 28, 2015
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.
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New York City Employers Prohibited from Requesting Criminal History Information before Making a Conditional Offer
NYC Bans Criminal History Report until Conditional Offer
July 23, 2015
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.
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A Win for Licensees: Royalty Payments Stop at Patent’s Expiration
U.S. Supreme Court: Royalties Stop as Patents Expire
July 21, 2015
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.
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FTC Takes Its First Action Against Crowdfunding Site
FTC Scrutiny of Crowdfunding
July 17, 2015
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.
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Hope for Computer-Related Patents
Hope for Computer-Related Patents: Update on Alice
June 17, 2015
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.
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Supreme Court Requires Proof of Criminal Intent Even If Facebook Threats Are Obvious to a Reasonable Person
U.S. Supreme Court on Intent and Threats Posted to Facebook
June 15, 2015
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.
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Michael Jordan Defends His Right to Remain in Court to Protect His Likeness
Michael Jordan Defends His Right to Remain in Court to Protect His Likeness
June 11, 2015
“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.
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Chinese Court Stuns New Balance with $16 Million Verdict: Lessons on Doing Business in China
Language Considerations in Trademark Use
June 9, 2015
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.
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The PATENT Act in Its Infancy
Protecting American Talent and Entrepreneurship Act of 2015
May 27, 2015
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.
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Cybercrime on the Rise: Targeting Banking Institutions and Insurance Companies
Update: State and National Cybersecurity Regulation
May 26, 2015
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.
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Apple v. Samsung: Trade Dress Functionality and Total Profits without Apportionment
Apple’s Partial Win in Patent Case with Samsung
May 22, 2015
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.
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.SUCKS Fights Back against Critics: Is It Enough to Convince Brand Owners to Buy the Domain?
Can Anything Stop the .SUCKS Rollout?
May 19, 2015
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?
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Right to Criticize Gets a Bigger Public Platform on the Internet with the Introduction of .sucks Domains
YourBrand.sucks Is Available. Will You Claim It or Will Someone Else?
April 16, 2015
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A New Weapon to Combat Cybersquatting: File Suit against Domain Registrars and Hosting Companies
Combating Cybersquatters: A Virtual Game of “Whack-a-Mole”
April 13, 2015
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.
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Employment Newsletter
NLRB Rules on Employees’ Use of Employers’ Email
April 2015
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“Raging Bull” Settles but Its Repercussions Persist
The Implications of “Raging Bull” in Patent and Copyright Proceedings
April 9, 2015
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.
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Is Ignorance Bliss for Website Users Confronting Terms of Use Agreements?
Is Ignorance Bliss for Website Users Confronting Terms of Use Agreements?
April 3, 2015
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?
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NYDFS to Collect Data on Cyber Security, but Could Hackers Use This Database as a Road Map to Launch Targeted Attacks?
NYDFS to Broaden Scope of Technology Examination Framework
March 31, 2015
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.
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Plaintiff Investors Must Establish That Opinions in SEC Registration Statements Were Known to Be False at the Time They Were Issued
Limited Victory to Issuers of Opinions in Securities Law Cases
March 26, 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.
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Michael Jordan Denied Summary Judgment on His Right of Publicity Claim against Illinois Grocer
Michael Jordan ̶ Related Ad: Commercial versus Noncommercial Speech
March 19, 2015
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.
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The Measles Are Back: How to Inoculate Against Business Interruption and Other Epidemic Claims Risks
Claims Management
March 2015
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Stay Clear of Form Preservation Letters
New York Law Journal
March 16, 2015
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California Jury Finds “Blurred Lines” Infringed “Got to Give It Up”: Society’s Mixed Signals on Copying and Intellectual Property Rights
Marvin Gaye and Intellectual Property Rights Clash
March 13, 2015
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.
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Illinois Schools Face Tough Decisions in Combating Cyber-bullying
Illinois Schools Face Tough Decisions in Combating Cyber-bullying
March 9, 2015
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?
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Addressing the Challenges Associated with Counseling Clients in the Fashion Industry
Inside the Minds | Navigating Fashion Law, 2015 Edition
February 10, 2015
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North Korea’s Attack Raises Critical Coverage Issues and TRIA Implications
Cyber Alert: FBI’s Determination May Negate Coverage for Sony’s Losses
December 23, 2014
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.
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New York Environmental Commissioner Will Issue an Order Early Next Year Banning “Fracking,” Under a Moratorium Since 2008
New York Second State to Ban “Fracking”
December 22, 2014
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.”
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The Sum of All Parts: Second and Ninth Circuits Poised to Address Movie “Authorship”
Movie Authorship: Judicial Judgment of Artistic Merit?
December 3, 2014
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.
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Ninth Circuit Court of Appeals Demands More from Website Operators Before Terms of Use Will Bind Users
Ninth Circuit Demands More from Website Operators Before Terms of Use Will Bind Users
October 17, 2014
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.
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Texas Supreme Court Enforces Medical Criteria for Claims Involving Asbestos and Declares the Application of Chapter 90 Constitutional
Texas CPRC Title 4, Chapter 90, Asbestos & Silica Claims
July 24, 2014
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.
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Texas Supreme Court Holds That Requirement to Provide Evidence of Approximate Dose Applies to Mesothelioma Cases as Well as Asbestosis Cases
Texas Issues Decision on Causation in Asbestos Cases
July 22, 2014
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.
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Employment Newsletter
DOL to Act on Request to Revise Overtime Regulations
July 2014
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Law360 Cites Carl Pernicone on Whether the Clean Air Act Preempts State Common Law Tort Suits
Law360
July 11, 2014
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New York Court of Appeals Sustains Anti-hydrofracking Zoning Regulations as Permissible Exercise of Municipal Authority Under Home Rule Law
New York Anti-hydrofracking Zoning Regulations
July 1, 2014
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.
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How Courts Have Ruled on the Still-open Issue of Whether the Clean Air Act Preempts State Common Law Tort Suits
Does the Clean Air Act Preempt State Tort Suits?
June 24, 2014
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.
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New York Appeals Court Sustains Asbestos Plaintiffs’ Direct Suit Against Liability Insurer of Dissolved Corporate Defendant
FC&S Legal
June 12, 2014
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School District’s Potential Liability for Bullying Not Limited to Its Own Students
School District Liability for Bullying Extended
June 3, 2014
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.
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Bad Faith Claim Against Insurer Ruled Unsustainable by New York Federal Courts Where Based on Same Facts as Breach of Contract Count
S.D.N.Y.: Bad Faith Claim Against Insurer Unsustainable
June 2, 2014
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.
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Florida Federal Judge Approves Settlement Agreement Providing Payments to All Victims of Data Breach, Even Those Who Suffered No Monetary Loss
Court Approves Settlement to All Victims of Data Breach
May 28, 2014
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.
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Ruling on Specific Causation in Toxic Tort Cases
Law360
May 13, 2014
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New Jersey School Districts Defending Bullying Case Can Possibly Seek Contribution from Student Accused of Bullying and Parents
NJ: Bully/Parents Possibly Equally Liable with School District
May 12, 2014
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.
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The U.S. Supreme Court Makes Effort to Provide Recourse Against Patent Trolls
Patent Owners Aided in Battle with “Patent Trolls”
May 7, 2014
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.
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New York Appeals Court Sustains Asbestos Plaintiffs’ Direct Suit against Liability Insurer of Dissolved Corporate Defendant
NY Court Rules “Substituted Service” Permissible
May 1, 2014
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.”
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Wyoming Supreme Court Vacates on Procedural Grounds a Lower Court Decision Holding Ingredients in Fracking Fluid Formulas Qualify as “Trade Secrets”
Are Fracking Fluid Formulas “Trade Secrets”?
March 19, 2014
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.
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United States to Relinquish Remaining Control of the Internet and Oversight of the Internet Corporation for Assigned Names and Numbers (ICANN)
New Internet Governance to Be a Multi-stakeholder Model
March 18, 2014
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.
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West Virginia High Court Finds Carbon Monoxide Exposure Claims Arising from the Same Source Are a “Single Occurrence” for Coverage Purposes
Two Toxic Exposures Constitute the Same “Occurrence”
March 13, 2014
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.
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New York Court of Appeals Holds Property Policy Time Limitation for Replacement Costs Suits Amounts to “Claim Nullification”
NY Bars Time Limitation for Replacement Costs Suits
March 12, 2014
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.
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New York Court of Appeals Sustains Delay in Disclaimer Based on Insured’s Lack of Cooperation
Disclaimer Delay Excused Due to Insured’s Failure to Cooperate
March 6, 2014
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.
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Foreign Air Carriers Must Adhere to a “Family Assistance Plan” in the Event of an Accident on American Soil Resulting in Major Loss of Life
Foreign Air Carrier Family Support Act of 1997
February 26, 2014
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.
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Despite the Best of Intentions, Paving the Way for the Next Financial Meltdown Part II: Getting Ready
Application of the Key Attributes to Insurance Companies
February 25, 2014
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.
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Unanimous Wisconsin High Court Sustains Broad Asbestos Exclusion That Comprehensively and Unambiguously Bars Coverage for Any Asbestos-related Loss
Broad Asbestos Exclusion Bars Coverage in Wisconsin
January 16, 2014
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.
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Illinois Appeals Court Rejects Application of Absolute Pollution Exclusion to Claim for Unpleasant Odors Emanating from Hog Farm Manure
IL Appeals Court Rules on Absolute Pollution Exclusion
December 24, 2013
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.
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New York’s Highest Court Reverses Itself on Prior Damages-Limiting Decision
NY Court of Appeals Reverses Its Prior Damages-Limiting Decision
December 16, 2013
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.
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Exclusion Requested by First Named Insured and Contained in the Prior Policy Is Binding on All Named Insureds, Even Those Unaware of the Exclusion
Exclusion Requested by First Named Insured Binding on All
December 10, 2013
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.
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New York Court of Appeals: Vandalism Coverage under “Named Peril” Property Policy Can Apply Even When Malicious Act Is Not Directed at Covered Property
NY Expands Vandalism Coverage under Named Peril Policy
November 7, 2013
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.
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A Superstorm Sandy Retrospective: How the Actions of New York Regulators May Shape Responses to Future Natural Disasters
A Superstorm Sandy Retrospective and Future Responses
November 1, 2013
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.
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Massachusetts and the Suspension of a Commercial Driver’s License during a Fatality Investigation
Trucking Industry Defense Association Newsletter
Fall 2013
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Conn. High Court Hops On The 'Make-Whole' Bandwagon
Law360
August 27, 2013
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Allocation and Recoupment Policy Provisions: Necessary to Prevent Windfalls?
PLUS Journal
August 2013
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New York’s Highest Court Finds ER Physician and Hospital Have No Duty to Prevent Intoxicated Patient from Leaving Hospital
July 9, 2013
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Second Circuit Holds Insurer Has Duty to Defend but Not Indemnify, Due to Legal Uncertainty about Coverage at Time of Tender
Duty to Defend Due to Ambiguity in CGL Policy
July 2, 2013
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.
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Eighth Circuit Holds Abandoned Lead Concentrate Is a “Pollutant” for Purposes of CGL Policy Absolute Pollution Exclusion
Eighth Circuit: Abandoned Lead Concentrate a “Pollutant”
June 25, 2013
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.
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How Will U.S. Supreme Court Decision That Naturally Occurring DNA Is Not Patentable Impact Future Technology Patents?
Effects of Supreme Court Ruling on Biotech Industry
June 24, 2013
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.”
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Are the Requirements for Class Notice Getting Stricter in the Second Circuit?
Bloomberg BNA: Class Action Litigation Report
June 14, 2013
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Ill.'s Unclear Endorsement for Asbestos-Injury Losses
Law360
May 20, 2013
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“Related Acts” Language in Professional Liability Policies
ABA Newsletter: Section of Litigation – Professional Liability
May 13, 2013
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New York Department of Financial Services Issues a Fourth Amended Order, Extending Moratorium until January 16, 2013
Superstorm Sandy Update
January 8, 2013
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.
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New York Department of Financial Services Proposes Third Amendment to Regulation Governing Holding Companies
Third Amendment to NY Insurance Regulation 52
January 7, 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.
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Sandy’s Perilous Aftermath
Hurricane Sandy
November 1, 2012
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.
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NAIC Adopts Revisions to Actuarial Guideline 38
NAIC Adopts Revisions to Actuarial Guideline 38
October 18, 2012
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.
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Connecticut Appellate Court Allows Extrinsic Evidence in Determining Type of Insurance Policy Purchased
Extrinsic Evidence Allowed to Clarify Ambiguous Policy Language in Connecticut
October 16, 2012
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.
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Defending the Distributor in Counterfeit Cases
IP Litigator
September/October 2012
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The Impact of Insolvent, Bankrupt, or Defunct Insureds
ABA Section of Litigation: Professional Liability Newsletter
Fall 2012
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Steering Clear of Cyber Trouble
CLM - Litigation Management
Fall 2012
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NY Department of Financial Services Investigates Life Insurance Industry’s Use of Captive Reinsurers
Life Insurance Industry’s Use of Captive Reinsurers
September 10, 2012
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.
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Insurers Are Subject to Liability Arising from Hydraulic Fracturing in New York under Direct-Action Statute
The National Forum for Environmental & Toxic Tort Issues (FETTI): Summer/Fall 2012 Case Law Update Newsletter
September 2012
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Homeowners' Insurance Does Not Cover Claims of Negligent Entrustment of a Motor Vehicle Says a Connecticut Appellate Court
Negligent Entrustment of a Motor Vehicle
September 6, 2012
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.
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Fourth Circuit Rules a Global Insurer’s Worldwide Coverage Exposes It to U.S. Jurisdiction in Coverage Litigation
Worldwide Coverage
August 7, 2012
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. -
Cutting Corners Can Lose an Appeal
May 9, 2012
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.
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Indiana High Court: Absolute Pollution Exclusion Applies Only to Contaminants Specified within the “Pollutant” Definition
April 23, 2012
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. -
Connecticut Supreme Court Holds Act of Parking Car in Garage Triggers Motor Vehicle Exclusion in Homeowners’ Policy
March 13, 2012
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.
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Insurer Climate Risk Disclosure Survey 2011
March 12, 2012
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.
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ERM as a Key Component of the Risk-Focused Surveillance Process
March 1, 2012
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.
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California Signals Greater Enforcement of Online Privacy Regulations for App Makers
February 24, 2012
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. -
Arkansas Supreme Court Issues Groundbreaking Decision in “Gray Market” Products Liability Suit
February 9, 2012
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 “Status and Business Enterprise” Exclusions in Professional Liability Policy “Patently Inapplicable”
February 6, 2012
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 – One of the Largest Liability Exposures Emerging in the U.S. Today
January 18, 2012
Wilson Elser attorneys co-author article on hydrofracking in the Marcellus Shale.
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Bloomberg Law Reports Publishes Two-Part Article on Cyber Piracy by Bialek
January 17, 2012
Bloomberg Law Reports® Technology Law has published a two-part article written by Adam Bialek that examines the punitive response to cyber piracy.
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California Supreme Court Upholds the “Replacement Part Defense” and Changes the Face of California Asbestos Litigation
January 13, 2012
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.
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New York Law Journal Publishes Article on Sports Law by Wilson Elser Attorneys Lum and Goodman
November 9, 2011
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. -
Selmeci Writes Article for the NYCLA Construction Law Journal
November 3, 2011
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Montana Supreme Court Says Insured’s Failure to Notify Insurer of Claim by Third Party Breaches a Material Precondition to Coverage
October 2011
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. -
Be Prepared for the .xxx Launch – Brand-Owner Opt-Out Period Set
August 2011
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. -
Selmeci Publishes Article on Expert Disclosures
August 8, 2011
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Duty to Protect Employees’ Families at Issue: Is Employer Liable for Secondhand Asbestos Exposure at Premises?
July 2011
Amid disagreement among Illinois appellate courts, the Illinois Supreme Court will hear and should ultimately rule on employer liability in secondhand asbestos cases. -
Illinois Supreme Court Adopts Wilson Elser's Argument and Eliminates Wrongful Birth Defendants' Exposure for Post-Majority Damages
May 2011
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.
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New York Court of Appeals "Annualizes" Limits in Following-Form Multiyear Excess Subscription Policy
April 2011
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.
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Carl Pernicone Contributes to Business Insurance White Paper on Hydrofracking
February 2011
Partner Carl Pernicone contributed to the Business Insurance white paper entitled “Underground liability: Hydraulic Fracturing Raises Environmental Concerns."
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CPSC Clarifies the Definition of "Children's Product"
January 2011
The U.S. Consumer Product Safety Commission has issued a formal definition of "children's product" that resolves the dispute over age cutoffs.
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How new law affects life settlements in New York
July 2010
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.
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First Department clarifies New York law on the "Statutory Pollution Exclusion" and the merits of an insurer's late notice defense in a pollution liability claim
June 2010
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. -
Medicare Secondary Payer Act: New Jersey Appellate Court holds Medicare recovery rights not barred by collateral source statute or preempted by state law
June 2010
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.
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Georgia Supreme Court finds that, when insurer assumes defense under an ineffective reservation letter, insurer can be estopped from disclaimer based on noncoverage, even absent a showing of prejudice by insured
May 2010
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. -
Selmeci Authors Article on Protection of Quality Assurance Materials
April 7, 2010
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).
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"Personal injury" coverage and climate change liability: why policyholders may target this coverage in responding to climate change suits based on nuisance claims
March 2010
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. -
EPA lead law to impose new requirements on contractors and landlords
December 2009
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.
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Appellate Alert
November 2009
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.
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A role for the federal government in insurance regulation attracts additional support
October 2009
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.
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Be aware of open-ended remediation contracts
August 2009
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.
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Commencement of Red Flags enforcement by FTC postponed to November 1, 2009
August 2009
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.
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Jury awards record labels $1.9m for defendant's sharing of 24 songs online
July 2009
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.
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IAIS strengthens supervision of large, multi-national insurance and reinsurance companies
July 2009
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.
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Mexico imposes retaliatory tariffs on U.S. goods in response to suspension of NAFTA trucking program
June 2009
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.
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Emerging coverage issues of new EPA-proposed climate change regulation
May 2009
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. -
Federal efforts to reduce greenhouse-gas emissions
May 2009
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.
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Connecticut high court clarifies rules for interpreting policy exclusions
April 2009
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.
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Illinois and Wisconsin high courts apply "time and space" considerations in quantifying the number of occurrences
March 2009
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.