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FMG Law Blog Line

Archive for October, 2012

Upcoming Changes to Form I-9 for Employment Eligibility

Posted on: October 12th, 2012

By: Kelly Morrison

United States is once again proposing changes to the standard I-9 eligibility form.  The commentary period on the amended form is open until October 15, 2012, at which time USCIS will evaluate suggestions and issue an implementation date for the new form.


D&O Insurance Policies Now Tailored to Health Care Organizations

Posted on: October 12th, 2012

By: Kelly Morrison

The new wave of insurance policies explicitly addresses antitrust and HIPAA concerns unique to the medical industry.

Please visit the following link for more information: D&O Insurance for Healthcare Organizations: Our Prescription for Better Coverage.


U.S. Supreme Court Granted Cert to Address Question of Federal Jurisdiction in Legal Malpractice Case

Posted on: October 12th, 2012

By: Dana Maine

Last week, the U.S. Supreme Court granted cert in a case out of the Supreme Court of Texas, Minton v. Gunn, et al., 80 USLW 353547, 81 USLW 3028 (U.S. Oct. 5, 2012) (No. 11-1118).

The Court will decide whether the 5-3 Texas Supreme Court decision was correct in determining that exclusive federal court jurisdiction exists for legal malpractice claims arising out of a claim of negligent handling of a patent case.  The arguments will focus on whether the Court should overturn the rationale espoused by the Federal Circuit Court in Air Measurement Tech, Inc. v. Akin Gump Strauss Hauer & Feld, LLP, 504 F.3d 1262 (Fed. Cir. 2007) and Immunocept, LLC v. Fulbright & Jaworski, LLP, 504 F.3d 1281 (Fed. Cir. 2007).

New Jersey Imposes Another Posting Requirement on Employers

Posted on: October 5th, 2012

By: Brad Adler

In addition to a record keeping requirement notice, a family leave insurance notice and others, New Jersey employers now will be required to post and distribute to employees a notice of their right to work in an environment free from gender-based pay discrimination.  The new law applies to organizations with 50 or more employees and goes into effect on November 21, 2012, although it remains to be seen whether the New Jersey Department of Labor will have a form notice ready by that time.

When the law does go into effect (and the form is available), covered employers will be required to initially distribute a copy of the notice to all employees within 30 days after the Department of Labor publishes the notice.  Thereafter, an employer must provide the notice to all employees annually or sooner if an employee requests a copy of the notice.

The Marketing Risks of Insurance Related Litigation

Posted on: October 4th, 2012

By: Seth Kirby

Nationally syndicated radio host Clark Howard recently targeted auto insurer Progressive in his “Clarkrageous Moment,” a segment in which he expresses his outrage over various topics.  In this instance, his outrage stemmed from an auto accident in Maryland that caused the death of Kaitlynn Fisher.  Ms. Fisher was insured by Progressive, and her family submitted a claim for uninsured motorist benefits under her Progressive Policy, which was not immediately paid.  Mr. Howard was outraged that Progressive had the audacity to participate in a lawsuit against the at fault driver, arguing that Ms. Fisher, its own insured, was responsible for the accident.  Mr. Howard came across this case because of the social media efforts of Ms. Fisher’s brother.  He posted about the situation on his personal blog, and the story went viral, resulting in an outpouring of online reports and numerous mentions in various main stream media.

With condolences to the Fisher family for their loss, and putting aside the merits of the case, from a procedural standpoint, Progressive was simply exercising their rights as a UM carrier to determine who was responsible for the accident.  Such a system is used in many states and often requires a judgment against the tortfeasor before a UM carrier is required to pay damages to its insured.  The fact that such arguments are allowed, does not automatically shield a carrier from public backlash should their ligation decisions be challenged.  Indeed, in this instance, the fact that the carrier had a legal right to argue that the accident was the fault of their insured was either overlooked by many media outlets, or buried beneath headlines like “Progressive insurance on defense after dodging paying family of a client killed in a crash.” Matthew Barakat, Chicago Sun-Times, August 17, 2012.

While it is often said that any press is good press, I doubt that applies in this situation.  Not only did Progressive lose the underlying case, it has also suffered a blow in the eyes of the public.  But what could have been done to stop the backlash other than avoiding the suit altogether?  Insurance litigation has always required carriers to take public positions (in the form of pleadings) that are often against the financial interests of their insureds, but until recently, such lawsuits were not the subject of internet blogs and Facebook posts.  In our current social media environment, it seems that the marketing impact of insurance litigation must be considered along with the merits of each case.  When litigation is warranted, care must be taken to educate any interested media outlets regarding the purpose of the litigation.  Of course, doing so may be easier said than done.