Will a New Wave of New Environmental/Toxic Tort Litigation and Claims Upend Insurance Industry Environmental Reserves?

February 24th, 2023|Categories: Emerging Litigation & Risk, HB Emerging Law Notes, Journal on Emerging Issues in Litigation, New Featured Post for Home Page|Tags: , , , , , , , , |

The Author Charlie Kingdollar spent his career as emerging issues officer for a major global insurance company, tracking hundreds of future risks like those discussed in this article. Charlie is also a valued member of the Editorial Board of Advisors for the Journal of Emerging Issues in Litigation. Interviews with leading attorneys and other subject matter experts on new twists in the law and how the law is responding to new twists in the world. Will a New Wave of New Environmental/Toxic Tort Litigation and Claims Upend Insurance Industry Environmental Reserves? "PFAS chemicals are commonly called “forever chemicals,” because once released into the environment they can take hundreds or even thousands of years to break down." "Estimates that the ultimate costs of [these and other] environmental claims will land between $45 billion and $55 billion is terribly low. Maybe I’m missing something (always a possibility).  If not, the insurance industry is in for a rude awakening."  Abstract: To remain profitable and viable, the insurance and reinsurance industry must rely on estimated forecasts of potential claims many years out to establish an appropriate level of reserves. They rely on data from rating agencies and, based on these estimates, ratchet their reserves up or down accordingly. In past years, major and once unforeseen developments [...]

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Autonomous Vehicles: The New Technology Driving the Litigation Conversation

February 24th, 2023|Categories: Emerging Litigation & Risk, HB Emerging Law Notes, Journal on Emerging Issues in Litigation, New Featured Post for Home Page|Tags: , , , , , , , , , , , , |

The Authors Cort T. Malone (cmalone@andersonkill.com) is a shareholder in the New York and Stamford offices of Anderson Kill and practices in the Insurance Recovery and the Corporate and Commercial Litigation Departments. An experienced litigator, he focuses on insurance coverage litigation and dispute resolution, with an emphasis on commercial general liability insurance, directors and officers insurance, employment practices liability insurance, advertising injury insurance, and property insurance issues. John M. Leonard (jleonard@andersonkill.com) is a shareholder in Anderson Kill’s New York, New York, office, where he handles a full spectrum of insurance coverage matters, such as business interruption losses, D&O and E&O, commercial general liability, environmental liability. Joshua A. Zelen (jzelen@andersonkill.com) is a law clerk pending admission in Anderson Kill’s New York office. He focuses his practice on insurance recovery. Interviews with leading attorneys and other subject matter experts on new twists in the law and how the law is responding to new twists in the world. Autonomous Vehicles: The New Technology Driving the Litigation Conversation "The AEV Act requires a policyholder’s insurance company to cover third-party damage caused by a self-driving automated vehicle. A policy may not exclude such damages, except for damages suffered as a direct result of software alterations made without the policyholder’s knowledge, or failure to install safety-critical software [...]

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Labor Organizing in Retail: Conditions Remain for Continued Momentum

February 24th, 2023|Categories: Emerging Litigation & Risk, HB Emerging Law Notes, Journal on Emerging Issues in Litigation, New Featured Post for Home Page|Tags: , , , , , , , , , , |

The Authors Amber is Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, and is a trial lawyer who has extensive experience representing and advising clients in traditional labor relations, such as collective bargaining, representation elections, decertification elections, unfair labor practice charges, arbitrating grievances, contract administration and interpretation, and union avoidance strategies. Amber’s litigation experience includes regularly representing clients in wage and hour collective and class actions, trade secrets and post-employment restrictive covenant disputes, and complex employment discrimination. As a part of Amber’s partnership with clients to avoid litigation, she frequently conducts and coordinates sensitive corporate investigations, and provides training presentations for clients on a multitude of topics. Kurt helps businesses of all sizes solve their complex labor and employment challenges. He counsels clients on all aspects of labor-management relations, including representation elections, collective bargaining and strikes and lockouts, and also advises clients in strategic employment and human relations matters. Kurt litigates labor and employment cases in federal and state trial and appellate courts around the country and before the NLRB and EEOC. Kurt is a recognized thought leader in the area of traditional labor-management relations. He has been recognized as a leader in Labor and Employment by Chambers USA Virginia and as a 2022 Top 10 Labor Lawyer by Benchmark Litigation. [...]

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Modernizing Our Court System (but Don’t Attend Trial from Your Car) with Hon. Scott Schlegel

February 15th, 2023|Categories: ELP, Emerging Litigation & Risk, HB Tort Notes, Podcasts|Tags: , , , , , , , , , , |

The judicial system is overburdened for a number of reasons, and greater efficiency is a must if court systems are to achieve their important objectives. Technology and openness to all that it offers is a key solution, something that was tried, tested and proven during the Covid pandemic which closed courthouses and law offices around the nation. Along with technology, improvements can be made by reexamining their orthodoxies about how things should be done based on decades of "that's how we've always done it." This is a matter of importance to judges, lawyers, plaintiffs, defendants, and numerous others whose lives are impacted directly or indirectly when either the civil or criminal justice systems are inefficient, cumbersome, costly, confusing, slow, and even inaccessible. If only we had an example of at least one judge who is trying to do something about it. But wait ... Listen to my interview with the Hon. Scott Schlegel who presides over criminal civil and domestic matters in Louisiana's 24th Judicial District Court in Jefferson Parish. Judge Schlegel was elected to the bench in 2013, and quickly earned a reputation as a modern judge using technology to bring his court into the digital age, even before the pandemic forced the change on other jurists. He partnered with tech companies to develop efficiency tools like chat bots and [...]

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Class Certification Evidence: Standards of Admissibility and Probative Value Among the Circuits

February 15th, 2023|Categories: Emerging Issues Webinars, Featured On-Demand, HB Tort Notes, New Webinars, Tort Litigation, Tort Webinars|Tags: , , , , , , |

Class Certification Evidence What Are the Standards of Admissibility and Probative Value Among the Circuits? Numerous splits exist among the circuits on two key certification issues: What is required to prove the elements for class certification and whether plaintiff's certification evidence must be admissible. Further, courts apply different admissibility standards to fact evidence than to expert evidence. Certain courts have issued clear guidance on these important issues, while others have remained circumspect, sending mixed signals. This is particularly vexing for defendants, who may be sued in more than one district or circuit. What is sufficient for class certification in one jurisdiction may be inadequate in another. With standards unsettled, counsel must anticipate and preserve the right to revisit class certification by preserving all objections and the factual record. Listen as the panel of class action attorneys discusses the standards of admissibility of evidence at certification and best strategies for leveraging ambiguities. Questions Addressed How can defense counsel preserve objections to admissibility? How can counsel leverage the law of other circuits in jurisdictions with no controlling precedent? What does how a court assesses evidence imply about its view on admissibility standards? Webinar Outline Fact evidence Need not be admissible Must be admissible Ambiguous Expert evidence Full Daubert analysis Limited Daubert analysis Strategies for managing and leveraging the uncertainty A Strafford production specially selected [...]

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Discovery Strategies in Wage and Hour Class and Collective Actions Before and After Certification of Putative Class

February 15th, 2023|Categories: Emerging Issues Webinars, Featured On-Demand, HB Tort Notes, New Webinars, Tort Litigation, Tort Webinars|Tags: , , , , , , , |

Discovery Strategies in Wage and Hour Class and Collective Actions Before and After Certification of Putative Class Strategically Limiting Discovery, Resolving Discovery Disputes Wage and hour class and collective actions are complex and discovery intensive. Discovery requests are often burdensome, seeking information concerning a broad swath of workers. This causes the discovery process to sometimes linger for years and creates a significant expense for employers.In recent years, courts have emphasized that parties must rein in extensive and expensive discovery requests. Employment litigators are increasingly raising proportionality arguments as a basis for objecting to opposing counsel's discovery requests. Drafters are responding by tailoring requests to anticipate such challenges. Drafting discovery requests that are likely to withstand burden and proportionality challenges and objections to broad discovery requests is critical for litigators representing employers in wage and hour class and collective actions. Employment litigators must develop and implement effective discovery strategies both before and, as applicable, after certification of the putative class. These strategies often must anticipate the possibility of a future summary judgment motion, further certification practice, and trial on the merits. Listen as our authoritative panel of employment law attorneys explains effective strategies for pursuing or objecting to discovery requests in wage and hour collective and class actions and resolving discovery disputes that arise during litigation. Questions Addressed: What are the most common discovery [...]

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Lost Profits in Commercial Litigation: Proving and Defending Damages

February 15th, 2023|Categories: Emerging Issues Webinars, Featured On-Demand, HB Tort Notes, New Webinars, Tort Litigation, Tort Webinars|Tags: , , , , , , , |

Lost Profits in Commercial Litigation: Proving and Defending Damages Leveraging Calculation Methodologies, Documentation, Expert Evidence, and Effect of COVID Lost profits are often the single most substantial aspect of the plaintiff's claim as well as one of the most contentious, challenging types of damages to prove and are particularly susceptible to attack.In the duel of experts over lost profits damages, both sides will want to analyze and present complex financial documentation as clearly and concisely as possible. Plaintiff's experts must put forth damages studies that are credible and can withstand cross examination from the opposition.In determining how best to counter the plaintiff's damages claim, defense counsel faces a delicate balancing act between defending against liability and discrediting the plaintiff's numbers as presented through a defense expert.Listen as our panel discusses the framework, bases, and aspects of lost profit damages calculations and how to prove or defend against lost profit damages. Outline Framework for lost profits damages Evidence/documentation Quantification of lost profits damages Presentation of lost profits damages Defending against lost profits damages A Strafford production specially selected for HB audiences. Derrick Boyd Founding Partner Boyd Powers Williamson Cameron Byrd Attorney Ahmad Zavitsanos Anaipakos Alavi & Mensing Dr. Allyn Needham, Ph.D., CEA Partner Shipp Needham Economic Analysis The panel will review these and other crucial issues: What evidence [...]

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Daubert Motions in Construction Litigation: Standards for Expert Witnesses in Design and Defect Claims

February 1st, 2023|Categories: Emerging Issues Webinars, Featured On-Demand, HB Tort Notes, New Webinars, Tort Litigation, Tort Webinars|Tags: , , , , , , , |

Daubert Motions in Construction Litigation: Standards for Expert Witnesses in Design and Defect Claims Raising or Defending Daubert Challenges to Admitting Expert Testimony In most construction suits, both sides rely on experts to provide opinions and testimony supporting or against claims of liability and damages. Such expert testimony often involves determining fault for design and construction defects, schedule delays, and worker inefficiency. Expert opinion and testimony impact all parties in a construction dispute, including property owners, developers, financial institutions, design professionals, contractors, subcontractors, suppliers, and vendors.The Daubert/Frye ruling and the body of law on challenging expert opinions and testimony continue to evolve for construction disputes in both state and federal courts. Courts permit testing expert of testimony and an expert’s foundational methodology or technique to ensure that it is relevant and reliable.Listen as our panel of construction litigators discusses the applicability of the Daubert/Frye standards to the presentation of expert testimony in construction disputes, analyzes what is required to successfully raise or defend a challenge to the admission of expert testimony, and provides guidance for using experts in construction cases. Outline Dispositive motions in the Daubert hearing: the Daubert challenge Frye standards: how they differ from Daubert standards Application to construction cases Application to scheduling, construction defects, and damages Future impact of Daubert/Frye on construction claims Lessons from court rulings A Strafford production specially selected for HB audiences. [...]

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Rule 23(c)(5) Subclasses: Certification, Due Process, Adequate Representation, and Settlement

February 1st, 2023|Categories: Emerging Issues Webinars, Featured On-Demand, HB Tort Notes, New Webinars, Tort Litigation, Tort Webinars|Tags: , , , , , |

Rule 23(c)(5) Subclasses: Certification, Due Process, Adequate Representation, and Settlement Plaintiffs can define and propose subclasses to address unique issues or to resolve potential intra-class conflicts of interest. Counsel opposing certification will want to emphasize the intra-class conflict as reason to deny certification and show how subclasses render class treatment unmanageable.Due process requires adequacy of representation for all class members, including subclasses. Circuit courts have overturned settlements if they see conflicts of interest among subclasses and the failure of class counsel to ensure independent representation of subclasses.Listen as this experienced panel of class action litigators guides both plaintiff and defense counsel through the effective use of subclasses to resolve the case. Outline Statutory basis of subclasses Types of cases and issues best suited for subclasses Resolving conflicts of interest among subclasses A Strafford production specially selected for HB audiences. Wystan Ackerman Partner Robinson & Cole James Francis Co-Founder Francis Mailman Soumilas Kristen Simplicio Partner Tycko & Zavareei The panel will review these and other key issues: What are the tell-tale signs that a subclass is needed or required? When can subclasses be created? Can there be subclasses within subclasses or is predominance destroyed? What are the due process concerns with subclasses and subclass representation? What should defense counsel consider when deciding whether to oppose certification of [...]

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Modern Removal and Remand Strategies: Forum Defendant Rule; Snap Removal; Effect on Pleadings, Motion Practice

January 27th, 2023|Categories: Emerging Issues Webinars, Featured On-Demand, HB Tort Notes, New Webinars, Tort Litigation, Tort Webinars|Tags: , , , , , , , |

Modern Removal and Remand Strategies Forum Defendant Rule; Snap Removal; Effect on Pleadings, Motion Practice A defendant in a lawsuit filed in state court can "remove" the case to federal court if there is a diversity of citizenship, except if a "properly joined and served" defendant is a citizen of the forum state. With the advent of electronic filing, defendants now have instantaneous notice of suits and may remove the case before being served, thereby sidestepping the forum defendant rule. Although several U.S. Circuit Courts have approved the practice, a debate remains on whether this practice should be approved.Plaintiffs have their own toolbox to anticipate removal strategies and take preemptive actions to make removal difficult and remand likely. Since all parties can play the literal-reading-of-the-statute card, plaintiffs have seized on ways to bring the "real" parties into the dispute in such a way as to prevent removal.If the case comes to a stop in federal court after removal, the parties must be aware of how the change in forum impacts the rest of the case: deadlines, motions, pleadings, what must be answered, and what is stayed.Listen as this experienced panel of litigators discusses which removal and remand planning and strategies can make the most difference. Outline Statutory authority and procedural requirements Strategies for plaintiffs Avoiding federal question Avoiding diversity, pre- [...]

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Greatly Exaggerated: The Impact of Bankruptcy on Mass Torts with Jennifer Hoekstra

January 12th, 2023|Categories: ELP, Emerging Litigation & Risk, HB Tort Notes, Podcasts|Tags: , , , , , , , , , , |

When large companies face massive mass tort litigation, one way they can survive is to file for bankruptcy protection and reorganize.  3M recently put its Aearo Technologies subsidiary into bankruptcy in the face of more than 230,000 claims that's its defective earplugs caused hearing loss.  When it came to filing bankruptcy 3M said Aearo was solely responsible for the product. But for several years of litigation 3M argued that it, as the parent, was solely responsible, not its various subsidiaries. That was a strategy that was beneficial to the company in multidistrict litigation. Why did 3M suddenly change course? What impact does bankruptcy have on claimants? Could corporations use bankruptcy law to neuter mass tort litigation for all eternity?  And how did the strategy sit with the federal magistrate judge overseeing the multidistrict litigation? Joining me to discuss this incredibly complex litigation is Jennifer M. Hoekstra, a partner with Aylstock Witkin Kreis & Overholtz. Jennifer has been involved in all varieties of complex litigation since 2007, focusing on mass torts, drug and device litigation, and others.  She has a J.D. from Tulane, which she earned while also completing a certificate in Environmental Law. She has actively served as trial counsel or an integral member of the trial team in several of the 3M Earplug trials securing nearly $300 million in compensatory damages [...]

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Under Pressure: Courts and Lawyers Trying to Deal With It with Diana Manning

January 6th, 2023|Categories: ELP, Emerging Litigation & Risk, HB Emerging Law Notes, Podcasts|Tags: , , , , , , , , , , , , |

The pressure on trial lawyers, judges, plaintiffs, defendants, and court systems is only increasing. The backlog of cases in New Jersey, for example, nearly quadrupled between February 2020 and 2021, the first year of the pandemic, according to NJ Spotlight News (NJSN). The state is also facing a historic shortage of jurists, NJSN reported, “leading to overworked judges, huge case backlogs and nearly 7,000 defendants in jail without bail, some 500 of them for more than two years despite a law that essentially requires a trial within two years for anyone detained." As reported by NJSN, one court official told the state Assembly Budget Committee about the impact of the pandemic on the court system: “Buildings were closed to most in-person trials for more than a year, although other proceedings continued virtually. The business closures and high unemployment led to a housing crisis that resulted in more than 46,000 pending cases that involve landlord-tenant issues . . . . But with all courts open and staff back to work in person, it is impossible to eliminate the backlog of cases with so many open judge seats.” The problem is attributed to the state Senate, where the process is mired, even though the governor is making appointments. According to the National Counsel for State Courts, backlogs at one third of [...]

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