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Texas is Latest State to Enact Crown Act
5/31/23
By: Robert Chadwick and Lynne Finley On Saturday, May 17, 2023, Texas Governor Greg Abbott signed House Bill 567, a new law banning race-based hair discrimination in Texas schools, housing and workplaces. Texas thus joins twenty other states which have enacted similar laws, commonly referred to as Crown Acts. The Texas law is effective September…
Supreme Court Affirms Exception to Notice Requirement for Certain IRS Summonses/Subpoenas
5/31/23
By: David Chang and Elizabeth Lowery On May 18, 2023, the Supreme Court affirmed that when the Internal Revenue Service issues a summons/subpoena in connection with its efforts to collect a tax liability, third-party recordkeepers – like accountants, banks and brokerage firms – who receive such summonses/subpoenas do not need to provide notice to the…
Class Action Against Class I Rail Operator, Norfolk Southern
5/30/23
By Joshua G. Ferguson and Nicholas J. Hubner Arising from a freight train derailment of February 3, 2023, in East Palestine, Ohio, groups from three states including Ohio, Pennsylvania, and West Virginia recently filed a class action lawsuit against the Class I freight operator, Norfolk Southern Railway Company and its parent, Norfolk Southern Corp. (“Norfolk…
Georgia Laws Regarding Employee Time Off and Leave Get An Update
5/25/23
By: Joyce Mocek Georgia Laws Regarding Employee Time Off and Leave Get An Update Effective July 1, 2023, Georgia employees will now be able to take up to 2 hours of unpaid time off to vote in-person in primaries and elections, either on election day or on a designated in-person early voting day. This is…
For the Record: Best Practices for Maintaining Personnel Records and Employee Files
5/24/23
By: Janet Barringer and Ryan Giggi Our increasingly digitized world has changed the way employers manage and keep records. Personnel files are very frequently at the center of employment litigation, as a well-kept personnel file will tell the story of an employee’s performance, relationships with others, timely receipt of wages, an employer’s efforts to reasonably accommodate…
5/24/23
By: Ben Dunlap In John Moriarty & Associates, Inc. v. Zurich American Insurance Company, the Appeals Court held that an insurer’s failure to pay defense bills after agreeing to defend its insured may be a breach of the insurer’s duties – even if the insurer ultimately pays the bills during the pendency of the coverage…
5/17/23
By Victoria James and Maria Alexander On April 19, 2023, in a case titled Amica Mutual Insurance Company v. Mary Floyd and Elite Auto Rentals, LLC, the Connecticut Superior Court held that a rental company is shielded from liability for the renter’s negligence. For this reason, the court struck the claim against the rental company.…
5/16/23
By LaShay Byrd and Kyle Virgin The COVID-19 Public Health Emergency (PHE) is set to officially end on May 11, 2023 and with it several extraordinary regulatory flexibilities will end as well. In the early days of COVID-19, the Department of Health and Human Services (HHS), Centers for Medicare and Medicaid Services (CMS), and other…
California Finally Mirrors the IRS By Allowing First-Time Penalty Abatement
5/15/23
By Caroline Wu & Elizabeth Lowery For decades California has refused to enact a statute mirroring that of the IRS which expressly provides taxpayer with first-time abatement of penalties for failure to file tax returns or failure to timely pay the tax due. This left Californians with a lack of predictability regarding whether taxpayers who…
A de novo Look at the FDA’s de novo Classification Process and Preemption
5/11/23
By Kevin M. Ringel and Kevin G. Kenneally A recent federal court decision, Desch v. Merz North America, Inc. & Ulthera Inc., No. 22-cv-02688 (HG), 2023 WL 2734671 (E.D.N.Y Mar. 31, 2023), highlights an untested area of medical device litigation. Presently, there is a lack of case law on whether the FDA’s heightened de novo…
Take Two Advil While I Check ChatGPT – Using A.I. in Medical Diagnoses and Treatment
5/10/23
By Robert Bender, Jr. Another day, another story about ChatGPT and its potential to shape a profession. According to a recent study by JAMA – The Journal of the American Medical Association – ChatGPT outperformed practicing physicians when answering patient questions. The study, coupled with another JAMA study addressing the chatbot assistant’s performance answering board…
Economic Slowdown: Layoff Speedup – 10 Commandments for Employers Considering Layoffs
5/9/23
By Gaia T. Linehan, Mandy D. Hexom and Victoria Fuller From retail to tech, employers have laid off tens of thousands of employees since the beginning of the year. Mass layoffs (i.e., ones affecting 50 or more employees) involve particular legal implications that employers must consider. The following are some guidelines for such layoffs: 1.…
5/9/23
By David A. Slocum In a closely watched case of first impression, a New Jersey appeals court panel held on Monday that a “hostile/warlike action” exclusion contained in an “all risks” property insurance policy does not bar coverage for nearly $700 million in losses suffered by multinational pharmaceutical giant Merck in connection with a cyberattack…
Minority Report: Kentucky’s Evolving Law of Foreseeability
5/9/23
By Tia J. Combs and Lucas Harrison Kentucky courts’ view of foreseeability was recently addressed in a pair of cases: Walmart, Inc. v. Reeves and Culp v. SI Select Basketball, et al. Kentucky’s appellate courts held that the “shift” in the conversation around the concept of foreseeability—that it is an aspect of breach analysis rather…
“Make Sure To Get It In Writing”: An Idiomatic Anachronism In Today’s Complex Legal World
5/8/23
By: Nancy M. Reimer and Andrew M. Vandini “Did you get it in writing?” has customarily and commonly been an inquiry used to determine whether a party can be held accountable for his, her, or its promises. The law, however, has never required a writing, and now, at least in Massachusetts, the answer to this…
BEWARE THE BELIEF YOUR RESPONSE TO AUDITOR IS A COLOSSAL WASTE OF TIME
5/4/23
By: Tim Soefje Some lawyers may create more potential professional liability over the coming months by drafting a single letter in response to their client’s independent auditor’s request for information than they will throughout the entire rest of the year. The problem arises primarily because after 40 years of writing these letters to independent auditors,…
Third-Party Litigation Financiers: A Trend Towards Automatic Disclosure
5/3/23
By Gabriel Canto and Sharlynne M. Mate Third-party litigation financing is the practice of obtaining litigation financing through a third-party financial institution (i.e. “the financier”). Although there is no universally accepted definition of third-party litigation finance, such agreements share several common traits: (1) a cash advance; (2) made by a non-party; (3) in exchange for…
Tackling Unauthorized Messaging in the Financial Sector
4/20/23
By David Chang With the growing prevalence and rapid evolution of alternative communication channels, the Financial Industry Regulatory Authority (FINRA) is now emphasizing the requirement for broker-dealers to retain business-related messages across all mediums. FINRA’s approach mirrors the Securities and Exchange Commission’s (SEC) actions, as it focuses on enforcing record retention requirements for off-channel communications. …
Important Principle of Insurance Law Reinforced
4/20/23
By Donald Patrick Eckler Applying Florida law, the 11th Circuit in Shiloh Christian Center v. Aspen Specialty Ins. Co., 22-11776, has reversed a district court’s grant of summary judgment in favor of an insurer, instead holding that the subjective intent of the parties to exclude named windstorms from a property insurance policy did not trump…
4/19/23
By Jody Cappello and Tara Sheldon In Jones v. Walmart Store No. 2585 et al., the United States District Court for the District of Connecticut addressed the burden a plaintiff must meet to establish an adverse employment action under 42 U.S.C. § 1981 and Title VII. In Jones, an Assistant Operations Manager worked at a…
We’re Gonna Need a Bigger Boat – The Rise of AI-Enhanced Phishing Attacks
4/19/23
By Curt Graham While hard at work, an unexpected email arrives with an urgent request: “This is your boss. I lost my company credit card and I need you to send me your card information immediately.” By now, most of us cannot be tricked by easy-to-spot phishing attempts like this. However, with the rise of…
The Importance of the Case Within the Case in Legal Malpractice Actions
4/18/23
By Patrick Cosgrove and Meaghan Mahon Legal malpractice defense attorneys know they must make the plaintiff prove two cases – the legal malpractice case and the “case within a case”, requiring the plaintiff to prove the merits and damages of the matter underlying the alleged legal malpractice. On March 1, 2023, the Supreme Court of…
4/17/23
By Paul Boylan and Ryan Giggi In Abdulky v. Lubin & Meyer, P.C., decided on March 28, 2023, the Massachusetts Appeals Court disposed of a professional malpractice case by invocation of the principle that expert disclosures used on summary judgment must be admissible at trial. The Court specifically held that expert disclosures must be competent and…
Connecticut Appellate Court Expands and Provides Guidance for Wrongful Conduct Rule
4/13/23
By: Janice Lai and Brayson Grant On February 14, 2023, Connecticut’s Appellate Court expanded the application of the Wrongful Conduct Rule which was first adopted by the Connecticut Supreme Court in 2014. In Lastrina v. Bettauer, 217 Conn. App. 592 (2023), the plaintiff appealed from the granting of defendants physicians’ motion for summary judgment where…
Primary Jurisdiction Rarely Causes Severe Mental Anguish
4/10/23
By Elissa B. Haynes and Carlos A. Fernández Your car won’t start. A mechanical engineer, a NASCAR podcaster, and mechanic walk into your garage to help you—we’re assuming you have a diverse set of friends willing to help. The mechanical engineer downloads your car’s electronic information and gets to work on a blueprint to rebuild…
4/3/23
By Daniel Parker Jett and Alexander Schindler On February 16, 2023, the Fast Food Franchisor Responsibility Act (“AB 1228”) was introduced in the California State Assembly. AB 1228 proposes creating California Labor Code section 2810.9 to impose vicarious liability for various Labor Code violations upon, not only fast-food franchisees where the violations occur, but also…
Exhaustion Not Required: Perez v. Sturgis Public Schools
3/31/23
By Tia J. Combs and Sean C. Harrison This week, the U.S. Supreme Court rendered a rare 9-0 decision in Miguel Luna Perez v. Sturgis Public Schools, extending its decision in Fry v. Napoleon County Schools that exhaustion under the Individuals with Disabilities Education Act (IDEA) is not always a prerequisite for seeking relief under…
Indiana Reaffirms Need for Insured to Read Policy in Win for Insurance Agent
3/29/23
By Donald Patrick Eckler The Indiana Court of Appeals has adopted a rule regarding when the statute of limitations begins to run for claims against an insurance producer similar to that in Illinois announced by the Illinois Supreme Court in American Family Mutual Insurance Co. v. Krop, 2018 IL 122556. In Morgan v. Dickelman Insurance Agency, Inc.,…
Beware of Unpaid Illinois Subcontractor Employees
3/28/23
By Dustin Karrison and Kolton Reed General contractors are now obligated to pay the unpaid wages of a subcontractor’s employee, following recent amendments to the Illinois Wage Payment and Collection Act. The Act applies to all construction contracts executed after July 1, 2022, that exceed $20,000, subject to certain exclusions such as government work, single-family…
3/27/23
By Jaemie L. Paraon and Albert K. Alikin Several states have well-established case law holding that insurance carriers have a right to bring a direct malpractice action against defense counsel they retained to defend an insured, as long as no conflict of interest exists between the carrier and the insured. However, it is helpful to…
The Next BIPA?: Why Insurance Claim Professionals Should Pay Attention to GIPA
3/27/23
By Joseph Tripoli and Jonathan Schwartz Earlier this month, Amazon was sued in Illinois state court by current and former employees who claim the company unlawfully requested and obtained their family medical histories during the job application process in violation of the Illinois Genetic Information Privacy Act, 410 ILCS 513, et seq., (“GIPA”). This filing…
California’s Proposition 22 Survives … For Now
3/27/23
By Nathaniel L. Dunn Supporters of Proposition 22, now codified at California Business and Professions Code sections 7448-7467, were handed a significant victory recently when the Court of Appeal reversed a trial court judgment that ruled the second most expensive ballot measure in California’s history was unconstitutional. In Castellanos v. State of California, the trial…
3/24/23
By Jessica Samford The United States Court of Appeals for the Eleventh Circuit, in a per curiam though unpublished opinion, has once again had the opportunity to apply the Supreme Court of Georgia’s holdings in the 2012 decision Hoover v. Maxum Indemnity Company, 291 Ga. 402 (2012). The Eleventh Circuit’s newest opinion in Century Communities…
3/23/23
By Brett Asa Webull Financial LLC, a freshly minted online brokerage, came to rise in 2018 by promoting 0% commission trading of stocks, options, and crypto. According to the Financial Industry Regulatory Authority’s (FINRA) latest News Release1, Webull did not incorporate appropriate due diligence checks to meet their options trading approval obligations for customer…
3/23/23
By Scott Hroza Failing to file a timely post-trial motion is one of the most common ways an attorney can get sued for malpractice. On April 24, 2023, the Supreme Court of the United States will be hearing oral argument in Dupree v. Younger on whether to preserve the issue for appellate review, a party…
3/22/23
By Joseph T. Tripoli In Williamson v. Evans Nails & Spa Corporation, the Illinois appellate court ruled that video footage of a nail salon customer’s fall was sufficient to reverse summary judgment in favor of the salon and allow a jury to decide whether the salon’ negligence caused the customer’s injuries. Williamson went to the…
Georgia Clarifies When an Exculpatory Clause will Apply to Preclude Liability
3/21/23
By Adam P. Reichel and Marc J. Shrake Contract language and the extent it can be used to limit liability in the professional context is a never-ending chess match between individuals seeking to impose liability and professionals attempting to evade it. The court acts as the referee, stepping in and clarifying the rules as necessary…
Real Estate Company Agrees to Settle Robocall Class Action for $40 Million
3/16/23
By: Matthew Foree The days of large robocall class action settlements are not over. Keller Williams Realty, Inc. (“Keller Williams“) recently sought approval to settle a class action lawsuit alleging violations of the Telephone Consumer Protection Act (“TCPA”). The case is styled Beverly DeShay v. Keller Williams Realty, Inc. and was filed in state court…
3/13/23
By Lisa R. House, Paul-Michael La Fayette, and Kevin Ringel Assisted living and long-term care facilities doing business or expanding into FMG’s national footprint should be aware of differences in state law that directly impact litigation involving their industry. This article will provide an overview of states that have codified a nursing home bill of…
3/10/23
By: Bob Chadwick and Gabriel Canto As part of a permanent furlough in 2020, McLaren McComb, a union teaching hospital, offered 11 union employees severance agreements offering severance payments in exchange for releases of claims and the following clauses: Clause 6. Confidentiality Agreement. The Employee acknowledges that the terms of this Agreement are confidential and…
Responding to a Growing Investment Advisor Industry
3/9/23
By: Andrew Iles The fields of investment management and financial advising are ever growing. For example, the Securities and Exchange Commission recently stated that the number of Registered Investment Advisors (“RIAs”) has ballooned by 25% since 2016, and now covers more than 15,000 RIA firms. Such growth and constant progress present the Commission with the…
Supreme Court Limits Liability for Failure to Accurately Report Foreign Bank Accounts
3/6/23
By: Nancy Reimer and Cara Alexiou In a 5-4 decision, the Supreme Court limited an individual’s liability under 31 U.S.C. § 5314 for failure to accurately report foreign bank accounts to the government. Bittner v. United States, No. 21-1195, 598 U.S. __ (slip op.) (2023). The Bank Secrecy Act requires United States citizens with foreign…
Massachusetts Appeals Court Clarifies Scope of the Statute of Repose
3/3/23
By: David Slocum In a recent decision, the Massachusetts Appeals Court has clarified the scope of the significant protections afforded by the Massachusetts statute of repose to design professionals, contractors, subcontractors, and others involved with improvements to real property. Background: Affording an important protection to design and construction professionals, the Massachusetts statute of repose limits…
3/2/23
By: Kevin Ringel and Lisa House On January 30, 2023, the Biden Administration announced that the Covid-19 public health emergency will end on May 11, 2023. The public health emergency has been in effect since the start of the pandemic and allowed for provisions to ease the burden on health care providers and patients during the…
To Arbitrate or Not to Arbitrate: That Is The Question
3/1/23
By: Jessica Farrelly and Jessica Cauley How broadly can an employer apply an arbitration agreement? In Espinoza v. Peoplease, LLC, the United States District Court for the Southern District of Florida recently evaluated the right to compel arbitration of claims under the Fair Credit Reporting Act (“FCRA”) and to preclude an employee from pursuing a…
Supreme Court of Texas upholds order erroneously drafted by legal counsel as final judgment
2/28/23
By: Robert Chadwick In Texas state courts, legal counsel are generally asked to draft proposed orders and judgments for execution by district and county court judges. A February 10, 2023 per curiam opinion by the Supreme Court of Texas in Patel v. Nations Renovations, LLC, is a cautionary tale of why it is important for…
Overview of Midwest Sanitary, Inc. v. Sandberg, Phoenix, and Von Gontard, P.C.
2/27/23
Chicago partner, Donald Patrick Eckler, was published in the Winter Edition of Association of Defense Trial Attorneys commenting on the recent decision of the Illinois Supreme Court in Midwest Sanitary, Inc. v. Sandberg, Phoenix, and Von Gontard, P.C., 2022 IL 127327. The state high Court held that punitive damages assessed against a defendant in an…
Illinois Supreme Court Find BIPA Claims Accrue Upon Each Scan and/or Disclosure
2/23/23
By Pat Eckler, Amy Frantz, Glenn Klinger, Michael Sanders, and Jonathan Schwartz The long-awaited decision from the Illinois Supreme Court on how claims accrue under Subsections 15(b) and 15(d) of the Illinois Biometric Information Privacy Act, 740 ILCS 14/1 (“BIPA”), brings no better a result for businesses and their insurance carriers than the Court’s recent…
2/16/23
By Thomas K. McCraw, Jr., Esq. and Alexandra F. Held, Esq. Both federal and state law impose an affirmative duty on defendants to preserve relevant evidence to a legal action involving their organizations—but when exactly does this duty begin? On remand from the Massachusetts Appeals Court, the Business Litigation Session of the Superior Court recently…
Massachusetts Appeals Court Rejects Double Taxation Argument
2/16/23
By Sean Andrés Rapela and Ben N. Dunlap In Murrow v. Bd. of Assessors of Bos., the petitioner Murrow, a Boston taxpayer, asserted the City of Boston (the “City”) cannot tax both the common area of a condominium, owned by the unit owners, and her easement interest in a parking space on the same land.…
Florida Supreme Court Finds Appraisers Cannot Have Pecuniary Interest in Outcome of Appraisal
2/15/23
By Jessica Cauley and Jonathan Schwartz The Florida Supreme Court weighed in and resolved a conflict between district courts regarding appraised property claims and held that an insured’s public adjuster, who accepts an assignment on a contingent fee basis, is not a disinterested appraiser under a standard homeowners insurance policy. Parrish v. State Farm Florida…
2/9/23
By: Jessica Gray Kelly & Ryan Giggi On February 2, 2023, Massachusetts’s Supreme Judicial Court (“SJC”) upheld a real estate broker’s right to recover lost commissions after her clients breached an oral exclusivity contract and purchased a home on their own. The decision, Biping Huang v. Jing Ma, clarifies that exclusive broker contracts need not be…
CHATGPT AND COVERAGE B: What Copyright Liability Exposures Could AI Users Face?
2/9/23
By Alexia R. Roney and Matthew F. Boyer Previously, we introduced you to ChatGPT and the concept of an AI Chatbot application here. This week, we discuss the legal exposure that comes hand-in-hand with the internet – copyright infringement, 17 U.S.C. § 501, and the Digital Millenium Copyright Act (“DMCA”), 17 U.S.C. § 1201-1205. ChatGPT…
California’s Attorney General Is Investigating Mobile Apps’ Compliance with the CCPA
2/8/23
By: Robert Buckley California Attorney General Rob Bonta’s recent press release puts companies that are subject to the California Consumer Privacy Act (the “CCPA”) on notice that they should determine whether their mobile apps comply with the CCPA’s requirements. On January 27, 2023, Attorney General Bonta announced an “investigative sweep” that involved “sending letters to…
Illinois Supreme Court Shifts BIPA Landscape with 5-Year Limitations Period Applicable to All Claims
2/7/23
By Pat Eckler, Amy Frantz, Glenn Klinger, Michael Sanders, and Jonathan Schwartz Finding all claims under Illinois’ Biometric Information Privacy Act, 740 ILCS 14/1 (“BIPA”), subject to a five-year statute of limitations, the Illinois Supreme Court’s February 2, 2023 Opinion in Tims v. Black Horse Carriers, Inc., 2023 IL 127801 continues the assault on Illinois’…
New York’s 175-Year-Old Wrongful Death Statute Lives on
2/2/23
By Lisa R. House and Josh Ferguson New York Governor Kathy Hochul vetoed the Grieving Families Act this week. The bill expanded who could recover for the wrongful death of a family member, the type of damages that could be awarded to those individuals, and the time to bring a wrongful death lawsuit. The bill…
2/1/23
By Steve Forbes and Ashley Hetzel A partner at a prominent employment law firm in Ohio fired off a scathing text message that created some reputational ripples within the legal community. A female associate, who had recently returned from maternity leave, announced she had accepted a position at another law firm. Shortly after the announcement…
The Power of Rule 11 to Punish Bad Faith Litigation Conduct
1/30/23
By: Jessica Kelly and Christina Morgan Lawyers and their clients are bound by Federal Rule of Civil Procedure 11 and its state rule counterparts not to pursue frivolous claims. In Trump v. Clinton et al., Judge Donald M. Middlebrooks of the United States District Court for the Southern District of Florida relied on Rule 11 to…
FCC Proposes new reporting rules for the telecom sector in response to increased data breaches
1/26/23
By Courtney M. Knight On January 6, 2023, the Federal Communications Commission (“FCC”) proposed new rules for data breach reporting in the telecommunications industry. The Notice of Proposed Rulemaking recognizes that “[i]n the telecommunications industry, the public has suffered an increasing number of security breaches of customer information in recent years,” and cites to examples…
Kentucky Adopts New Rules of Appellate Procedure
1/25/23
By: Christina L. Vessels Effective January 1, 2023, Kentucky has new, stand-alone appellate rules embodied in the Kentucky Rules of Appellate Procedure (“RAP”). The prior rules governing appeal, found in Rules 72 – 76 of the Kentucky Rules of Civil Procedure, have been deleted and wholly replaced by the RAP. The RAP represent a complete…
Class action alleges high levels of “forever chemicals” in Simply brand juice
1/24/23
By: Matt Foree and Josh Ferguson A consumer has filed a class action alleging that juice marketed as healthy contains harmful chemicals. The case is styled Joseph Lurenz versus The Coca-Cola Company and The Simply Orange Juice Company. It was filed recently in the U.S. District Court for the Southern District of New York. A copy of…
ChatGPT: Has Artificial Intelligence Finally Defeated Alan Turing?
1/24/23
By Alexia Roney The year 2022 is the year of AI chatbot. News stories touted Meta’s chatbot Cicero when it defeated human players on the online game Diplomacy without tipping off its computer-generated origin. Media such as Scientific American published articles on AI chatbot LaMDA such as “Google Engineer Claims AI Chatbot Is Sentient: Why…
1/20/23
Schools in Alabama, Georgia and Florida can require transgender students to use the bathroom facilities of their biological sex, rather than those that match their gender identities. Schools in other states, including Maryland, North Carolina, South Carolina, Virginia and West Virginia, however, cannot.. By: Christian E. Foy Nagy The Eleventh Circuit Court of Appeals, sitting…
1/19/23
By: Jacob E. Daly Every year since 2002, the American Tort Reform Foundation has issued its ranking of the country’s worst jurisdictions, which it colorfully names Judicial Hellholes®. According to ATRF, these are jurisdictions – whether an entire state’s civil justice system or a particular court, a category of litigation, or a legislature – where…
Geotracking Regulatory Trend is Expanding to Employers
1/17/23
By: Justin Boron You probably already know that your apps know where you were last night. But did you know that employers might too? It is all but accepted that our geolocations are being tracked, which is part and parcel of using a smartphone. But employers, particularly through their employees’ use of company vehicles and…
1/13/23
By: R. Victoria Fuller and Emily Kowalik Two new federal laws aimed at increasing protections for pregnant and breastfeeding employees will go into effect in 2023: the Pregnant Workers Fairness Act (“PWFA”) and the Providing Urgent Maternal Protections for Nursing Mothers Act (“PUMP For Nursing Mothers Act”). Employers should familiarize themselves with the new employee…
The FTC proposes rule banning non-compete agreements
1/12/23
By: Jennifer L. Markowski, R. Victoria Fuller, Christopher J. Redd On January 5, 2023, the Federal Trade Commission proposed a new rule that would prohibit employers from imposing non-compete agreements on their workers, with very limited exceptions. The FTC has stated that non-competes are an exploitative practice that suppresses wages, hampers innovation, and impedes entrepreneurship.…
Five States Set to Expand Data Privacy Rights in 2023
1/4/23
By: Amy C. Bender As the landscape of data privacy regulation is ever-changing, five U.S. state statutes (in California, Virginia, Colorado, Connecticut, and Utah), passed to enhance the privacy rights of consumers in their respective states, go into effect in the new year. Many of these laws share characteristics, such as granting robust rights to…
Massachusetts Appeals Court Confirms Escape Route from Premature Notice of Appeal
12/28/22
By: Rick Nahigian In Siddharth v. Chaturvedi, Slip Op. (November 21,2022), the Massachusetts Appeals Court held that a premature notice of appeal, i.e., one that is filed before the disposition of certain post-judgment motions, will bring the merits of an appeal before the appellate court as long as no action on the appeal is taken…
Consumer Practices of Real Estate Company Leads to AG Suits in Multiple States
12/21/22
By Courtney Mazzio MV Realty, a Florida based company, is in the hot seat for its business practices. In exchange for payment of hundreds of dollars, a client of MV Realty signs a contract agreeing to use the company as the listing agent if they decide to sell their home. The terms of the contract…
The National Labor Relations Board Expands Available Remedies for Labor Violations
12/19/22
By Robert Chadwick and Caroline Wu On December 13, 2022, the National Labor Relations Board (“NLRB”) in Thryv, Inc. significantly expanded the remedies available to employees who allegedly suffer economic losses due to an employer’s alleged unfair labor practice. Traditionally, these remedies have been backpay and benefits. With the new decision, the Board has adopted…
Maine’s Statutory Limits on Government Immunity from Negligence Claims
12/19/22
By Victoria James The Maine Tort Claims Act provides immunity in negligence actions for all government entities 14 Me. Rev. Stat. § 8103. There are four broad exceptions to immunity where the government can be held liable for property damage, bodily injury, or death 14 Me. Rev. Stat. § 8104-A. Three recent Maine cases deal…
12/16/22
By: R. Victoria Fuller and Sean Andrés Rapela Fiscal Year 2022 (“FY22”) marked the Massachusetts Commission Against Discrimination’s (“MCAD” or “Commission”) 75th year in existence. Like many government agencies, the MCAD faced a multitude of challenges as a result of the pandemic. The Commission’s FY22 Annual Report both highlights the setbacks and delays caused by…
An Employer’s Primer on the Speak Out Act
12/12/22
By: Tia J. Combs On December 7, 2022, President Biden signed the Speak Out Act (S. 4524; Public Law No. 117-224). As the law is effective immediately, employers must act quickly to understand how the new law may impact their businesses. What the Law Prohibits The law prohibits nondisclosure and nondisparagement agreements concerning sexual assault…
Will Georgia Counties be Governed by Popular Vote?
12/12/22
By: Katie Taylor and Amy Cowan In a case of first impression, the Georgia Supreme Court has been asked to decide whether voters can void contracts executed by elected county boards of commissioners via referendum. In Camden County, Georgia v. Robert C. Sweatt, Jr., et al., Case No. S22A0837, county voters urge the Court to…
Objectively False: Eleventh Circuit Highlights Importance of Body Cameras
12/5/22
By: Steven L. Grunberg With its decision in Baxter v. Roberts on November 30, 2022, the Eleventh Circuit provided another reminder of just how important body cameras have become for citizens and law enforcement officers alike by affirming summary judgment for a sheriff’s deputy in a §1983 civil rights action stemming from a traffic stop.…
Policyholders obtain rare wins in COVID-19 coverage cases against insurers
11/29/22
By: Edward Solensky Jr. In what is believed to be the first jury trial in the nation on the issue of whether a commercial property insurance policy covers business interruption losses due to COVID-19, Baylor College of Medicine won a Texas state court jury verdict that one of its insurers, units of Lloyd’s of London,…
Feds Consider Carving Out Exceptions to the Buy America Act
11/23/22
By: Kenneth Coronel The Biden administration is considering carving out two exemptions for federally funded transportation contracts which are subject to the 2021 Build America, Buy America Act, or BABAA. On November 4, 2022, the Department of Transportation proposed two waivers. The waivers would apply to HUD funded projects of de minimus value and to…
Modular Construction Components: Claim and Defense Considerations
11/22/22
By: Doug P. Holthus and Eric M. Coglianese With increasing frequency, commercial and residential construction projects incorporate modularized or “pre-fab” construction products. Prefabricated modules (smaller components designed to be incorporated into a larger structure, e.g., wall sections, roof sections, floor slab sections) are typically manufactured at some off-site facility and later delivered to the Project…
Is Time Rounding the Next Employment Practice to Fall in California?
11/21/22
By: Craig Tomlins For years, state and federal courts, as well as administrative agencies, have allowed California employers to use time rounding policies so long as they are neutral on their face and neutral as applied. Because of this, many California employers have taken advantage of time rounding policies for various reasons. Recently, however, the…
Third Circuit finds no nexus between retailer’s mode of operation and water on store floor
11/21/22
By: Edward Solensky Jr. In Saunders v. Wal-Mart Stores Inc., No. 21-1941, 2022 WL 832050 (3d Cir. Mar. 21, 2022), the Third Circuit rejected a Plaintiff’s argument that the District Court erred in ruling that the mode of operation doctrine did not apply to the facts of her case. Specifically, Plaintiff attributed a puddle on…
FTX’s collapse and the push for centralized regulation of digital assets in the U.S.
11/18/22
By: Luke Zavoli In 2019, Sam Bankman-Fried launched FTX, a cryptocurrency exchange backed by marquee investors, and in three years, grew FTX into the third largest cryptocurrency exchange – valued at $32 billion. This past Friday, November 11, 2022, FTX filed for bankruptcy, sending the cryptocurrency industry into chaos. So, what happened? How did a…
Are we about to see the rise of the right to earn a living?
11/15/22
By: Michael M. Hill Appellate decisions sometimes lead to sweeping changes in public policy, particularly at the Supreme Court. One such potential policy change to watch for is whether the right to earn a living will be enshrined as a “fundamental” right. The Supreme Court recognizes certain rights as “fundamental,” meaning they are “deeply rooted…
11/7/22
By: Patrick Cosgrove and Heather McFeeley Pennsylvania took steps to address its increasing aging population as it enacted new major nursing home regulations for the first time since 1997. At present, approximately 72,000 Pennsylvanians reside in the 682 long-term care nursing facilities throughout the Commonwealth. Recognizing these facts, along with the increased focus on nursing…
First Circuit Court of Appeals Weighs in on ADA “Tester” Standing Split
10/31/22
By: Alexandra Held and Jennifer Markowski A panel for the First Circuit Court of Appeals ruled, in Laufer v. Acheson Hotels, LLC, 50 F.4th 259 (1st Cir. 2022), that a “tester plaintiff” has standing under Article III of the U.S. Constitution to bring a claim against an inn under the Americans with Disabilities Act (ADA)…
California Further Expands Leave Rights for Employees Caring for Loved Ones
10/27/22
By: Mandy Hexom On September 29, 2022, California’s Governor signed into law Assembly Bill 1041 amending the law requiring employers with 5 or more employees to grant up to 12 weeks of medical leave for family care and medical leave. This bill expands the class of people for whom an employee may take leave to…
ALL ABOARD: TSA ISSUES NEW SECURITY DIRECTIVE TO TRACK CYBERSECURITY EFFORTS BY THE RAIL INDUSTRY
10/25/22
By: Nicholas Jajko and Nicholas Hubner SECURITY DIRECTIVE: 1580/82-2022-01 EFFECTIVE DATE: October 24, 2022 Working with the Cybersecurity and Infrastructure Security Agency (“CISA”), TSA issued a new Security Directive to protect against malicious cyber-intrusions affecting the nation’s railroads and to ensure the system keeps rolling even if computer systems are breached. Issued under authority of…
“Quiet Quitting” and the Great Resignation: How Should Employers Respond?
10/24/22
By: Megan Gable and R. Victoria Fuller Recently, “quiet quitting” has taken over social media and the news as employees across the country openly declare a change in attitude, perception, boundaries, and work ethic. Quiet quitting has no single definition, and its meaning and application varies depending on the employee. Some interpret it to mean…
Police Training Reform Comes to Light in a California Courtroom
10/17/22
By: Mandy D. Hexom The California Court of Appeal reversed summary judgment in favor of the City of San Diego which was sued by a family of a deceased motorcyclist and its passenger who led the police on a high-speed chase. The reason for reversal was uncommon. The pursuing police officers failed to do an…
Storms and hurricanes: what can insurers do to improve outcomes for all on storm-related claims?
10/14/22
By: Jessica Cauley, Jessica Samford, Jonathan Schwartz, and Julia Bover What Else is in Store for Hurricane Season 2022? As many Floridians begin to return to their homes—or to find that their homes no longer stand—reminders come that Hurricane Ian may not be the last storm of 2022. For the seventh consecutive season, the National…
When it comes to Exclusions in Insurance Policies, Grammar will Make it Tense
10/12/22
By: Jessica Cauley and Marc Shrake In September 2022, the United States Court of Appeals for the Eleventh Circuit affirmed a seemingly unassuming district court decision finding coverage for a claim following a violent act at a hospital in Miami-Dade County, Florida. An employee of Westchester General Hospital (Hospital) allegedly sexually assaulted a patient, Jane…
10/11/22
By: Parisa Saleki In Musgrove v. Silver, the California Court of Appeals held that famed Hollywood producer Joe Silver was not liable for the drowning death of his assistant, Carmel Musgrove. In 2015, Silver attended actress Jennifer Aniston’s wedding in the French Polynesia. His assistant (employed through his company), and his chef (employed by Silver…
The collision of The Onion and criminal prosecution creates perfect parody before the Supreme Court
10/10/22
By: Alexia Roney The Onion is the world’s leading news publication, offering highly acclaimed, universally revered coverage of breaking national, international, and local news events. Rising from its humble beginnings as a print newspaper in 1756, The Onion now enjoys a daily readership of 4.3 trillion and has grown into the single most powerful and…
10/10/22
By: Justin Ruedaflores Although not the first of its kind, California Senate Bill 1162 (SB 1162) expands California’s already progressive pay and data reporting laws by requiring certain employers to provide more transparency on pay scales and expanding pay data reporting obligations for other employers. Previously, in 2017, California passed the first mandatory transparency law…
10/5/22
By: Janet R. Barringer, Esq. and Andrew M. Vandini On September 8, 2022, Judge Mark T. Wolf, longtime federal judge from Massachusetts’ District Court, entered a default judgment in favor of Plaintiffs in Red Wolf Energy Trading, LLC v. Bia Capital Mgmt., LLC after Defendants repeatedly failed to comply with discovery orders related to electronically…
I Now Pronounce You Joint Employers: The NLRB’s New Rule Would Expand Definition of Joint Employer
10/3/22
By: Jacob McClendon On September 6, 2022, the National Labor Relations Board proposed a new rule that would expand the definition of “joint employer” under the National Labor Relations Act. The new rule proposes a much broader definition that would include a significantly wider array of businesses as joint employers. Under the current rule, an…
NHTSA probes Tesla crashes involving motorcyclist fatalities
9/29/22
By: Edward Solensky Jr. A recent article in Insurance Journal discusses how two crashes involving Teslas apparently running on Autopilot are drawing scrutiny from federal regulators and point to a potential new hazard on U.S. freeways: The partially automated vehicles may not stop for motorcycles. The National Highway Traffic Safety Administration sent investigation teams to…
Outbreak!: Why insurance claims professionals should pay attention to Monkeypox
9/22/22
By: Glenn Klinger Monkeypox was declared a national public health emergency by the U.S. Department of Health and Human Services on August 4, 2022, only the fifth time this has happened since 2009. As of September 20, 2022, the Centers for Disease Control and Prevention reported 24,203 confirmed cases nationwide, with California (4,753) and New…
9/14/22
By: Katherine A. Mastrobuoni On Labor Day, California’s Governor, Gavin Newsom, signed Assembly Bill 257, the Fast Food Accountability and Standards Recovery Act (“the Act” or “FAST Recovery Act”) into law. The FAST Recovery Act aims to protect and give California nonunionized fast-food workers bargaining power for better wages and better working conditions. The FAST Recovery Act…
9/13/22
By: Nicholas Jajko The litigation battleground in class actions arising out of data breaches is almost always fought on Article III standing. Before any discovery is exchanged or fact depositions take place, claimants must allege they have standing to sue the defendant. Standing is demonstrated by showing 1) an injury-in-fact; 2) fairly traceable to the…
Owners and contractors beware: Massachusetts Appeals Court strictly interprets the Prompt Pay Act
9/12/22
By: David A. Slocum A recent decision by the Massachusetts Appeals Court in Tocci Building Corp. v. IRIV Partners, LLC, 101 Mass. App. Ct. 133 (2022) has established precedent that the formal rejection requirements of the Massachusetts Prompt Pay Act, M.G.L. c. 149 § 29E must be strictly complied with or else a written application…
Employee or Independent Contractor? The Connecticut Supreme Court Weighs In
9/8/22
By: Janice D. Lai On August 16, 2022, the Connecticut Supreme Court addressed what may constitute an enterprise’s “usual course of business” under Part B of the three-part statutory ABC Test, Conn. Gen. Stat. §31-222, for whether an individual is an employee or an independent contractor for purposes of the Unemployment Compensation Act. In Vogue…
9/6/22
By: Ed Storck In a unanimous decision, the Connecticut Supreme Court in Malisa Costanzo, Administratrix, et al v. Town of Plainfield, et al, SC 20537 (July 19, 2022), upheld the Court of Appeals’ reversal of a trial courts’ order sustaining the plaintiff’s objection to the defendant’s Apportionment Complaint seeking to apportion fault to nonparties for…
Watch your step: New Jersey Tort Claims Act Summer law update
9/6/22
By: Nicholas J. Hubner The New Jersey Tort Claims Act remains a viable defense this summer for public entities, even for cases involving uneven boardwalks at the New Jersey shore. Under the New Jersey Tort Claims Act (“TCA”), N.J.S.A. 59:1-1 – 14:4, a public entity is liable for injury caused by a condition of its…
9/1/22
By: Julia Bover On August 24, 2022, California Attorney General Rob Bonta issued the first-ever enforcement action under the California Consumer Privacy Act (“CCPA”) against cosmetics retail chain Sephora. The CCPA was signed into law in 2018 and went into effect in 2020, and provides enhanced privacy rights for California’s consumers including: The right to…
8/30/22
By: Erin Lamb A Seventh Circuit decision upholding the exclusion of pregnant workers from a Walmart distribution center’s temporary light duty policy is putting the spotlight on the Senate to pass The Pregnant Workers Fairness Act (“PWFA”). The PWFA is bipartisan legislation that would require such accommodations and is supported by the US Chamber of…
8/29/22
BY: Daniel Parker Jett On June 15, 2022, the Supreme Court of the United States issued its highly anticipated decision in Viking River Cruises, Inc. v. Moriana, 596 U.S. ___, 142 S.Ct. 1906 (2022), pertaining to the arbitrability of representative actions under California’s Private Attorneys General Act (“PAGA”) [Cal. Lab. Code, §§ 2698, et seq.]. …
Two Carolina Courts Reject COVID-19 Business Interruption Claims
8/29/22
By: Shawn Bingham South Carolina’s Supreme Court became the latest high court to side with an insurer in a Covid-19 business interruption case, adopting the majority approach to interpreting “physical loss or damage” in the typical commercial property policy. On the heels of the South Carolina Supreme Court’s decision, the Fourth Circuit Court of Appeals,…
California Court of Appeal rules in favor of policyholder in COVID business interruption case
8/25/22
By: Shawn Bingham and Amanda Figueroa Recently, the California Court of Appeals, Second District, became only the second appellate court in the country—state or federal—to rule favor of a policyholder on a Covid-19 business interruption claim by holding that the policyholder sufficiently pleaded “direct physical loss or damage” under a commercial property insurance policy. In…
New tip credit rules hit PA restaurant and service industry employers
8/25/22
By: Justin Boron Pennsylvania has upped the ante on the restaurant industry. Earlier this month, new regulations took effect aimed at regulating how employers pay tipped employees in restaurants and other service industry employees. The regulations include the following: An update to the definition of “tipped employee,” adjusted for inflation since 1977, that increases the…
FINRA Seeks to Increase Control Over Expungement of Customer Dispute Disclosures
8/23/22
By: Leo Kogan Federal law mandates that the Financial Industry Regulatory Authority (FINRA) collect and maintain information about the qualification, employment and customer complaint histories of brokers and other registered financial services professionals. To that end, FINRA maintains the Central Registration Depository (CRD), the Securities and Exchange Commission (SEC), FINRA, other self-regulatory organizations (SROs), state…
EEOC Updates COVID-19 Workplace Testing Rules: What Employers Need to Know
8/9/22
By: Tia Combs On July 12, 2022, the EEOC updated its “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws: Technical Assistance Questions and Answers” by updating its guidance on when employers can routinely test employees for COVID-19 in the workplace without running afoul of the Americans with…
Maine Healthcare Workers Challenging Vaccine Mandate Cannot Proceed Under Pseudonyms
8/8/22
By: Maria Alexander and Tara Sheldon The healthcare workers challenging the constitutionality of Maine’s COVID-19 vaccine mandate can no longer litigate their claims anonymously after the First Circuit Court of Appeals found that they failed to demonstrate a reasonable fear of harm to justify proceeding under pseudonyms. Maine’s Center for Disease Control promulgated a regulation…
Music shutdown: Georgia gun laws shoot down Music Midtown Festival
8/5/22
By: Marissa Dunn The annual Music Midtown music festival marks the end of summer for Atlantans. People come from all over to hear lineups that have included Post Malone, Kendrick Lamar, Mumford & Sons, Bruno Mars, and more. At its peak over 300,000 people were in attendance, and the Atlanta Business Chronicle reported that the festival…
Cyber insurance experiencing ‘Future Shock’
8/4/22
By: Barry M. Miller and Elisabeth Gentile The idea of “Future Shock”—that an accelerated pace of change causes social and psychological disruptions—dates from Alvin Toffler’s 1970 book of the same name. As it copes with the mutable nature of cyber risks, the Insurance industry is experiencing such a shock. Insurers who write cyber liability policies…
7/29/22
By: R. Victoria Fuller and Sean Andrés Rapela On July 27, 2022, the Massachusetts Supreme Judicial Court of (“SJC”) held that food delivery app drivers do not fall within the narrow category of employees who are exempt from arbitration under § 1 of the Federal Arbitration Act (“FAA”) because they are “engaged in foreign or…
7/28/22
By: Patrick Cosgrove and Kayla Panek Pennsylvania has long been an outlier amongst jurisdictions in holding that clients cannot sue their attorney for legal malpractice after voluntarily agreeing to a settlement. A recent concurring opinion by a Pennsylvania Supreme Court Justice in Khalil v. Williams, et al. (July 20, 2022) suggests that it is only a…
New York’s New Sexual Harassment Hotline Could Lead To A Surge In Claims For Employers
7/26/22
By: Kaitlyn Grajek New York employers should brace for a prospective uptick in sexual harassment claims as a statewide toll-free confidential hotline became active on July 14, 2022. According to a Press Release by the New York State Senate Democratic Majority, the legislation establishing the hotline was enacted to “ensure all employees in both the…
7/21/22
By: Alexia Roney Due to countless police procedurals, the American public can recite from heart the Miranda warning – that a suspect has the right to remain silent, that anything they says can be used against them in a court of law, that they have the right to an attorney, and if they cannot afford…
7/20/22
By: Nancy Reimer and Matthew Mattie On July 5, 2022, a U.S. District Court Judge upheld an order requiring a major law firm to produce documents related to its communications with a Philadelphia-based casino showing conflicting client representation between two competitors. Pace-O-Matic (POM), a Georgia-based gaming company that does significant business in the state of…
7/19/22
By: Ryan Giggi Liability insurance policies do not cover G.L. c. 93A attorney’s fees in Massachusetts after a recent decision from the state’s highest court. Vermont Mutual Insurance Company v. Paul Poirier et al, (July 6, 2022) rests on conceptual differences between damages and attorney’s fees awarded under G.L. c. 93A, § 9(4). Massachusetts’s Supreme…
7/18/22
By: Alec D. Tyra On June 30, 2022, the Supreme Court issued its opinion in West Virginia v. EPA, invalidating the 2015 Clean Power Plan (CPP). Chief Justice John Roberts delivered the opinion of the court, holding that Section 111(d) of the Clean Air Act does not authorize EPA to devise emissions caps based on…
Managing Construction Claims Risk In The Age Of Gen Z and The Great Resignation
7/15/22
By: Tim Soefje Construction and design professional firms that ignore how to effectively manage their workforce during this Great Resignation and post-Covid remote-work era will likely experience a significant increase in professional liability and construction defect claims. In late 2021, the nation’s “quit rate” reached a 20-year high and hasn’t really slowed down. Surprisingly, some…
7/14/22
By: Nancy Reimer & Sean Andrés Rapela On July 1, 2022, in Bassichis v. Flores, the Massachusetts Supreme Judicial Court (“SJC”) held the litigation privilege protected an attorney from liability where he allegedly withheld information from the judge in a divorce proceeding. During the uncontested divorce proceeding, the husband was pro se. The wife’s attorney sought…
Minnesota Just Made it Harder for Insureds to Claim ‘Bad Faith’
7/12/22
By: Matthew Jones In the matter entitled Fishbowl Solutions v. Hanover Ins. Co., the United States District Court for Minnesota affirmed a Magistrate Judge’s Order denying an insured’s motion to amend the complaint to allege “bad faith.” The insured purchased a technology professional liability policy. When a third-party fraudster obtained access to emails of the…
Pennsylvania Limits Risk Transfer for Snow and Ice Management Services
7/11/22
By: Joshua Ferguson Pending the signature of Governor Tom Wolf, Pennsylvania will become the 4th State/Commonwealth in recent years to pass some version of an anti-indemnity law relative to snow and ice management services agreements. The Pennsylvania House of Representatives introduced House Bill 1665, which is legislation amending Act 164 of 1970, which relates to…
Massachusetts Appeals Court extends protections of the Statute of Repose
7/7/22
By: David A. Slocum In an important recent decision, the Massachusetts Appeals Court has extended the protections of the Massachusetts Statute of Repose to a painter of parking lot markings. In Adam C. Smith v. Andrew Divoll, the plaintiff (Smith) lost a leg while operating his motorcycle as a result of a motor vehicle crash…
7/6/22
By: John M. Badagliacca In a continuing trend toward the limitation of the enforcement of arbitration clauses in employment contracts, in Southwest Airlines Co. v. Saxon, the Supreme Court of the United States unanimously held that an airport ramp supervisor qualified as an interstate transportation worker and is therefore exempt from the Federal Arbitration Act (“FAA”). …
6/28/22
By: William Cheney In 2017, the New Jersey Supreme Court, in Palisades at Fort Lee Condominium Association, Inc. v. 100 Old Palisade, LLC, et al., held that the statute of limitations for construction defect claims brought by a condominium association begins to run upon “substantial completion” of the structure. While the Supreme Court recognized that the discovery…
Coverage Doesn’t Stick in Teflon dispute
6/27/22
By: Erin Lamb At its Petersburg, New York plant, Tonoga, Inc. made products and materials coated with polytetrafluoroethylene, better known by its trade name, Teflon. Before 2013, when making Teflon, Tonoga used perfluorooctanoic acid, perfluorooctane sulfonate, or a combination of both. These are man-made chemicals in a class of per- and polyfluoroalkyl substances, generally known…
6/23/22
By: Grace Callanan On May 23, 2022, the Supreme Court published its decision in Morgan v. Sundance related to the Federal Arbitration Act (the “Act”). The Court ruled that the Act is designed to put arbitration clauses or contracts on equal footing with any other type of contract or contract clause. Despite the Act’s “policy…
Persistent Risks and Regulations: New Health Advisories For PFAS
6/21/22
By: Joshua G. Ferguson and Alec D. Tyra On June 15, 2022, the EPA released health advisories for four PFAS compounds – PFOA, PFOS, GenX and PFBS. The new health advisories are significant for three reasons. First, new health advisories signal increasing scientific consensus on the negative health consequences associations with PFAS exposure. Second, the…
California Tort Law: Brown v. Taekwondo U.S.A. and the “no duty to aid” rule
6/16/22
By: Kenneth H. Coronel Does a bystander have an obligation to come to the aid of another under California law? Under most circumstances, the answer is “no.” A year ago, almost to the day, the California Supreme Court clarified the circumstances under which a person is obligated to come to the aid of a third…
Be Careful What You Post: Personal Jurisdiction in Internet Defamation Lawsuits
6/15/22
By: Michael Kenney and Tara Sheldon In today’s world, we have innumerable options to communicate and social media platforms like Twitter and Facebook have become, for many, a large part of our lives. While our modern digital life has increased social connectedness and removed barriers to communication, it has also led to increasing defamation claims…
6/8/22
By: Michael Freed The Supreme Court of Georgia granted certiorari in General Motors, LLC v. Buchanan on the question of “[w]hat factors should be considered by a trial court in ruling on a motion for a protective order under OCGA § 9-11-26 (c) that seeks to prevent the deposition of a high-ranking officer and what…
6/6/22
By: Edward Storck Recently, the Connecticut Supreme Court examined the rights of a restaurant owner tenant who had withheld payment of rent citing the executive orders dealing with the Covid-19 pandemic as the cause for their inability to pay rent. In AGW Sono Partners, LLC v. Downtown Soho, LLC, SC 20625 (May 10, 2022), the…
Eleventh Circuit Finds for Insurer in COVID-19 Case of First Impression in Georgia
6/6/22
FMG partners Phil Savrin and Shawn Bingham successfully represented Allied Insurance Company of America (a Nationwide entity) in resisting a claim by a restaurant (Henry’s Louisiana Grill) seeking coverage for business income lost after it suspended its operations after the COVID-19 outbreak. The central question, which had not been decided previously under Georgia law, was…
6/3/22
By: Courtney Knight New Jersey recreational cannabis sales began April 21, 2022 and have since amounted $24 million in sales. But what happens when all of those legal users show up to work and/or apply for a new job? The State’s employers have been left stranded while the battles continue in rulemaking and the Courts. During…
Down It Goes! Illinois Prejudgment Interest Struck Down – What To Do Now
5/31/22
By: Jonathan Schwartz and Patrick Eckler Judge Marcia Maras of the Circuit Court of Cook County struck down as violative of the Illinois state constitution, PA 102-0006, which permits prejudgment interest in personal injury and wrongful death cases. This ruling is of great significance for those with cases that predate the statute’s effective date, July…
5/25/22
By: Matthew A. Wachstein In the recent case of VAS Holdings & Investments LLC v. Comm’r of Revenue, No. SJC-13139, 2022 Mass. LEXIS 204 (May 16, 2022), the Supreme Judicial Court of Massachusetts (SJC) reversed the Appellate Tax Board’s holding that a nondomiciliary corporation could be taxed for its capital gains from the sale of…
5/24/22
By: Barry Miller Can the same conduct be unintentional, under a broad reading of the word “intent,” and still be intentional under a narrower test? A recent opinion from a Kentucky federal seems to suggest that an insured can lose coverage in precisely that way. Questions of intent often arise under the standard “intentional injury”…
Georgia Governor Reinstitutes Non-Party Apportionment
5/23/22
By: Sharon Horne and Sangeetha Krishnakumar Georgia’s “non-party fault statute,” codified at OCGA § 51-12-33, was passed by the state’s General Assembly as part of tort reform efforts in 2005. This statute provided for non-party apportionment as an option in applicable cases. The intent of this code section was, ostensibly, to allow the defendant to…
Changing Tides: WOTUS and the Jurisdiction of the Clean Water Act
5/23/22
By: Alec D. Tyra Clean Water Act: What is WOTUS? The Clean Water Act (CWA) was enacted to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” The act, among other things, regulates the discharge of any pollutant from any point source to navigable waters and the discharge of dredged or…
5/23/22
By: Edward Storck The recent decision in Tamara Dorfman v. Joscelyn Smith, et al, 342 Conn. 582, 271 A.3d 53 (March 29, 2022), addressed whether an insurer’s alleged conduct during litigation could form the basis of a “bad faith” finding in the handling of an underinsured motorists insurance coverage claim. The Connecticut Supreme Court upheld…
You Can’t Find Me Anymore: New Jersey Cracks Down on Employer Tracking
5/16/22
By: Stephanie L. Greenfield, Esq. Employers take notice, effective on April 19, 2022, a new law prohibits New Jersey employers from tracking vehicles driven by employees without first providing written notice. The law is designed to further protect employee privacy in the workplace. Under the new law, employers cannot utilize tracking or electronic communications devices in any…
New York Comprehensive Insurance Disclosure Act Updates 2022
5/5/22
By: Nicholas J. Hubner New York enacted the Comprehensive Insurance Disclosure Act on December 31, 2021 (the “Act”). When originally signed, Governor Hochul requested that the Senate consider certain amendments to reduce or clarify the burden on litigants. The Act was amended on February 24, 2022, to address a variety of concerns with New York…
5/4/22
By: Michael M. Hill In a sea change for antidiscrimination laws, the Supreme Court ruled in Cummings v. Premier Rehab Keller, P.L.L.C. that, under certain federal statutes, plaintiffs cannot obtain damages for mental or emotional distress. The statutes implicated by this ruling are Title VI of the Civil Rights Act, Title IX of the Education…
U.S. Supreme Court Addresses Parameters of Free Speech
5/3/22
By: Doug Holthus On May 2, 2022, the United States Supreme Court announced its decision in Shurtleff v. City of Boston, et al., 596 U.S. _ (2022). The primary issue presented: the parameters of freedom of speech. The City of Boston, MA has a tradition. For many years, a flagpole erected outside of Boston’s City…
Avoid These Practitioner Pitfalls When It Comes to Trade-Secret Misappropriation Trials
5/2/22
By: Nancy M. Reimer and William A. Hadikusumo A recent decision by the United States Court of Appeals for the Eleventh Circuit in Financial Information Technologies, LLC v. iControl Systems, USA, LLC, — F.4th — (11th Cir. Dec. 22, 2021) provides an all too real example of the oft-used idiom “do as I say, not…
Employer overcomes religious-based challenge to vaccine mandate
5/2/22
By: Janet R. Barringer On April 27, 2022, the United States Court of Appeals for the First Circuit Court ruled in Together Employees, by Individual Representatives v. Mass. Gen. Brigham Inc. (2022 U.S. App. LEXIS 11379), that a hospital system may require its workers to receive the COVID-19 vaccine over its employees’ religious objections as…
Elon Musk’s planned purchase of Twitter reignites questions of open source code security
4/29/22
By: Alexia Roney On April 25, 2022, Elon Musk sealed the deal to buy Twitter, Inc., for $44 billion. Among the changes to the platform, Musk has floated making the algorithm that prioritizes tweets “open source,” so the public could view and improve it. This generated articles in major news media over the security of…
4/28/22
By: Sean P. Kelly In a recent Appeals Court decision, Kennedy v. Abramson, 100 Mass. App. Ct. 775 (2022), the Massachusetts Appeals Court reinforced the vitality of the doctrine of res ipsa loquitur as a means for plaintiffs to be heard in front of jury even where there is limited evidence of a prior defective…
Ohio Appellate Court addresses “Permanent and Substantial Deformity”
4/25/22
By: Doug Holthus Ohio Revised Code §2315.18 imposes certain limits upon the available recovery of personal injury compensatory (non-economic) and punitive damages awards. An exception to the cap on non-economic damages exists where the plaintiff can establish that the injury complained of constitutes a “(P)ermanent physical functional injury that permanently prevents the injured person from…
4/22/22
By: Mary-Kate Planchet In Erika L. McNamara, Willard F. Warren and Kenneth Bennett v. Government Employees Insurance Company, 2022 U.S. App. LEXIS 9090 (11th Cir. Apr. 5, 2022), the United States Court of Appeals for the Eleventh Circuit determined whether a qualifying “excess judgment” for bad faith must be based on a verdict or may…
Massachusetts High Court Issues Two Important Wage and Hour Decisions
4/22/22
By: Jennifer Markowski, R. Victoria Fuller and Chris Redd The Massachusetts Supreme Judicial Court (“SJC”) recently issued a pair of decisions clarifying potential damages under Massachusetts’ wage and hour laws. Reuter v. City of Methuen addressed the appropriate measure of damages when an employer fails to timely pay wages. The Massachusetts Wage Act, M.G.L. c.…
Georgia Sparks Further Cannabis Debate
4/20/22
By: Wayne S. Melnick and Carlos A. Fernandez The legalization of cannabis continues to cause chronic concern in Georgia. Recently, the State of Georgia and Patsy Austin-Gatson, Gwinnett County District Attorney, were named as defendants in a suit challenging the legality of commercial products containing cannabinoids derived from hemp. These hemp-derived products are not the…
PAGA Manageability Requirement: A Split of Authority in California
4/15/22
By: Adam G. Khan On March 23, 2022, the California Court of Appeal based in Orange County held in Estrada v. Royalty Carpet Mills, Inc., 2022 Cal. App. LEXIS 237 a trial court “cannot dismiss a PAGA claim based on manageability.” The decision dealt California employers another blow in responding to Private Attorneys General Act…
New Bridge Projects Raise New Opportunities and Risk Considerations
4/14/22
By: Eric Asquith It made national news when the Fern Hollow bridge collapsed in Pittsburg, PA on January 28, 2022. Vehicles and a transit bus were on the bridge at the time of the collapse – 10 people were injured. The shocking aftermath of the collapse is seen in the photograph above. The National Transportation…
4/14/22
By: Tyler Connor In August of 2021, the Supreme Court of Georgia issued its controversial decision in Alston & Bird, LLP v. Hatcher Mgmt. Holdings, LLC, 312 Ga. 350, 862 S.E.2d 295 (2021). The Court ruled that under O.C.G.A. § 51-12-33(b), an action must have been “brought against more than one” defendant for any defendant…
California court holds that board diversity law violates equal protection
4/13/22
By: John Rubiner On September 30, 2020, California Governor Gavin Newsom signed into a law a bill (SB 979) that required publicly held companies headquartered in California to include board members from underrepresented communities. The law further required that, by the end of 2021, California-headquartered public companies have at least one director on their boards…
Kentucky’s Supreme Court examines the punitive damage “multiplier” in a case of first impression
4/12/22
By: Curt Graham In cases involving punitive damages, courts often look to the ratio between punitive damages and compensatory damages when evaluating the constitutionality of the punitive damage award. This ratio is called the punitive damage “multiplier.” In a case of first impression, Kentucky’s Supreme Court recently determined that the punitive damage multiplier should be…
Supreme Court clarifies “favorable termination” requirement for malicious prosecution claims
4/12/22
By: Steven L. Grunberg On April 4, 2022, the United States Supreme Court made it easier to bring a § 1983 claim for malicious prosecution by defining “favorable termination” to mean that the plaintiff’s underlying criminal prosecution ended without a conviction. The decision is available here. Prior to this holding in Thompson v. Clark, the various…
Red flag: Ninth Circuit affirms summary judgment against football-related wrongful death claims
4/11/22
By: Sharlynne M. Mate In Archie v. Pop Warner, No. 20-55081; CD CA 2:16-cv-06603, the Ninth Circuit panel unanimously affirmed summary judgment against chronic traumatic encephalopathy wrongful death claims by the estates of two former youth football players. The players died in their mid-twenties, a decade after their participation in Pop Warner Football – a…
Ohio Appellate Court reviews standard for claiming peer review privilege
4/6/22
By: Shafiyal Ahmed In Stull v. Summa Health Sys., 2022-Ohio-457, the Ohio Ninth District Court of Appeals held that the Defendant Health System failed to establish that a physician’s residency file was privileged as a record within the scope of a peer review committee pursuant to Ohio Revised Code §2305.252. The Plaintiff in Stull received…
Considerations for accountants in responding to a subpoena for client documents
4/6/22
By: Nancy Reimer and Lori Eller When a CPA or its firm is served with a subpoena requesting a client’s tax or financial information, there are best practices and steps they should take prior to responding to the subpoena. Federal and state law, as well as the American Institute of Certified Public Accountants’ (“AICPA”) Code…
Five things California lawyers have to report to the State Bar
4/5/22
By: Gregory T. Fayard California lawyers have certain reporting obligations to the State Bar. These obligations are mandatory. The reporting must occur within 30 days of the event. Failing to report can lead to discipline, jeopardizing the lawyer’s law license. Here are five things California lawyers must report to the Bar (which they may not…
D.C. Circuit: The Second Most Important Court in America
4/5/22
By: Sun Choy With the nomination of Judge Ketanji Brown Jackson to the Supreme Court, the United States Court of Appeals for the District of Columbia Circuit is in the spotlight once again. If confirmed, Judge Jackson will join Chief Justice John Roberts, Justice Clarence Thomas and Justice Brett Kavanaugh as former D.C. Circuit judges.…
Updating Your California Employee Handbooks in 2022
4/4/22
By: Eileen P. Darroll Employee Handbooks protect employers from potential litigation. California has notoriously strict laws protecting employees; all businesses should regularly review handbooks for updates. If your business is based outside California, you should consider creating an addendum for California employees to mitigate the risk of litigation. In California, employers with at least five…
Significant Changes for Federal Contractors Likely Coming Soon
4/1/22
By: Amy C. Bender The U.S. Department of Labor has proposed the most sweeping changes to the regulations implementing the Davis-Bacon Act and Related Acts in 40 years. The Davis-Bacon Act requires the payment of locally prevailing wage rates and fringe benefits to all laborers and mechanics on contracts entered into with federal agencies and…
Protection of Private Information
3/30/22
By: Paul Boylan The Supreme Judicial Court for the Commonwealth of Massachusetts recently confirmed what it means for something to be confidential. The case is In the matter of Attorney Michael J. Kelley, SJC-13145, March 16, 2022. Kelley confirms the long-standing principle in many jurisdictions that that protection of confidential information is not limited to…
SCOTUS has granted certiorari in The Andy Warhol Foundation case
3/29/22
By: Patrick Eckler The Supreme Court of the United States has granted certiorari in The Andy Warhol Foundation for the Visual Arts, Inc. v. Lynn Goldsmith, et al., on the following question: Whether a work of art is “transformative” when it conveys a different meaning or message from its source material (as this Court, the…
Congress Imposes New 72-Hour Reporting Requirement for Cyber Security Incidents
3/28/22
By: David Cole and Heather Kuhn President Biden’s promise to prioritize cybersecurity this year is beginning to take shape. On March 15, 2022, President Biden signed into law the Cyber Incident Reporting for Critical Infrastructure Act (“Cyber Incident Reporting Act”). Under the new law, certain businesses that are as “covered entities” and which are considered…
Chubb unit beats virus coverage suit brought by NJ apparel company
3/25/22
By: Edward Solensky Jr. In GK Trading LLC v. Chubb Group of Insurance Cos. et al., the SuperiorCourt of New Jersey dismissed an apparel company’s suit seeking to have a Chubbunit cover its losses arising from the coronavirus outbreak. Specifically, Plaintiffalleged that COVID-19 microbial matter attached to the surfaces within its CoveredLocations and thereby caused…
3/23/22
By: William H. Buechner, Jr. The U.S. Women’s National Team (“USWNT”) recently settled its highly publicized class-action lawsuit under Title VII and the Equal Pay Act against the U.S. Soccer Federation (“U.S. Soccer”). Under the terms of the settlement, the USWNT players will receive a total of $24 million, including $22 million in backpay and…
Florida Bad Faith: If Insurers Try Sometimes, They Just Might Find, They Get Summary Judgment
3/22/22
By: Matthew Boyer and Jessica Cauley On February 15, 2022, the Eleventh Circuit filed an unpublished opinion interpreting Florida’s bad faith law arising out of the United States District Court for the Southern District of Florida. Ellis v. GEICO Gen. Ins. Co., No. 21-12159, 2022 U.S. App. LEXIS 4180 (11th Cir. Fla., February 15, 2022).…
5/30/23
By: Julia Bover There is no denying that social media is top of mind for most of our nation’s youth. If they are not scrolling through the endless feeds, then they are thinking about the next time they will be. This unsettling realty is causing panic among parents, educators, and lawmakers across the country. They…