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June 2016

Seventh Circuit Declares Class Action Waivers Unenforceable, Creates Circuit Split

By:  Tim Holdsworth

Two weeks ago, the U.S. Court of Appeals for the Seventh Circuit bucked the appellate trend and held that arbitration agreements containing class and collective action waivers violate the National Labor Relations Act and are unenforceable under the Federal Arbitration Act. Every other circuit court to consider this question, including the Fifth, Second, Eighth, Ninth, and Eleventh Circuits, has held otherwise.

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The Expanding Duty to Defend and its Landmines

By:  Phil Savrin

An insurance company’s duty to defend is broader than a duty to indemnify in at least three ways.  First, a duty to defend is often based on the allegations of facts, even if the allegations are groundless, whereas a duty to indemnify is determined by the facts as confirmed by the evidence.  Second, even if the facts are not in dispute, a duty to defend can exist if the claim is arguably covered by the terms of the policy, whereas the duty to indemnify may require legal construction of the policy’s provisions.  

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SCOTUS Clarifies Standing Requirements in Long-Awaited Spokeo Opinion

By:  Matthew Foree

On May 16th, the Supreme Court of the United States issued its anticipated opinion in the Spokeo, Inc. v. Robins case.  Robins alleged that Spokeo, which operates a “people search engine,” violated the Fair Credit Reporting Act by publishing incorrect information about him.  Among other things, Robins alleged that this publication affected his ability to obtain employment.  

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Change In 34-Hour Restart Rules Appears Likely

By:  Marc Bardack

Last week, the Senate passed a transportation funding bill providing for a change in hours of service rules for truck drivers.  The change proposed in the bill depends on the outcome of a currently pending safety fitness determination study being conducted by the Federal Motor Carrier Safety Administration.  In the Senate bill, there would either be a return to the now suspended 2013 34-hour restart rules or a return to the 2011 34-hour rules, but with a cap of 73 driving hours per 7 day period.

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Firm and Attorney News 

Christopher M. Curci has joined the firm as an Associate in the firm’s Philadelphia and New Jersey offices.  Mr. Curci will practice in the firm's labor and employment law practice group. Prior to entering private practice, Mr. Curci successfully tried hundreds of cases to verdict as an attorney in the Philadelphia District Attorney's office. Mr. Curci received his law degree from the Temple University Beasley School of Law and his undergraduate degree from the University of Richmond.


Lisa Gorman and Kacie Manisco obtained a complete defense verdict in a San Jose, California arbitration involving claims of age discrimination, harassment, retaliation and negligent infliction of emotional distress.  Our client, a casino, reduced a poker dealer's work hours in connection with a restructuring of its gaming rooms. The employee contended the action was based on age discrimination and in retaliation for a lawsuit filed by her husband.


Brad Adler will be leading a labor seminar on June 28th from 11:45 am to 1:00 pm in the Atlanta office.  The seminar will discuss the legal impact of the DOL's overtime regulations, offer practical tips to help employers minimize the adverse effects of these changes on their bottom line and the morale of their workforce, and highlight potential pitfalls in their current pay practices.


Phil Savrin and Jessi Samford received a favorable ruling from a federal judge who found that an excess policy does not cover a wrongful death demand that exceeded the $1 million limits of the primary policy.   In finding for the firm’s client, the judge ruled that the policy did not apply to an entity that was not designated as a named insured on the excess policy even though the defendants were operating a covered vehicle at the time of the accident.  


Sun Choy and Kevin Stone obtained summary judgment in federal court for a county, sheriff, and sheriff’s deputy in a Section 1983 case arising out of a high speed pursuit that ended in a fatal collision.  The court found that the deputy’s conduct during the pursuit did not violate the Fourteenth Amendment and he was therefore entitled to qualified immunity.  The court granted summary judgment to the sheriff on the failure to train claim because there was no underlying constitutional violation. 


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Freeman Mathis & Gary, LLP is a leading national litigation firm, serving clients through its practice groups in CGL and Business Liability, Commercial and Complex Litigation, Construction and Design Law, Financial Services and Transactions, Government Law, Government Relations, Insurance Coverage and Bad Faith, Labor and Employment Law, and Professional Liability. With offices in Georgia, California, Pennsylvania, New Jersey, New York, North Carolina and Florida, FMG attorneys serve as trusted counsel to corporations and governments throughout the country, providing practical, efficient, and cost-effective solutions for legal issues. For more information about FMG, visit www.fmglaw.com.


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