FMG staffs the Bell & Clements IP LPL Risk Management Hotline. This hotline is only for insureds of Bell & Clements who have an active policy of insurance.
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*Please review and agree to the below terms and conditions of representation if my request for consultation is accepted by FMG.
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…
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).…
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,…
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…