Data-Driven Legal Guidance with Ed Walters

November 26th, 2022|Categories: ELP, Emerging Litigation & Risk, HB Emerging Law Notes, Podcasts|Tags: , , , , , , , , , |

Today we’re going to talk about the weather. But only for a minute. Mostly we’re going to talk about the use of big data in the practice of law. There is a reason IBM acquired the digital assets of The Weather Channel, and it's not because they are climate nerds. They bought it to put weather data to work to “operationalize [the] understanding of the impact of weather on business outcomes.” Think about the economic impact of snowstorms, hurricanes, and even less dramatic weather conditions, or the impact on the durability of manufacturing or building materials as temperatures rise or fall outside the norm. While we all crave meteorological precision, we also crave precision when making legal and business decisions. Clients ask questions like these all the time: What is our case worth? What size award will we get? Where should I file? Will the judge grant summary judgment? Should I even bring this suit?  Lawyers will draw on experience to offer their best advice, providing ranges followed by caveats and usually preceded by the most lawyerly of lawyer answers: “It depends.”  As my guest points out, lawyers also get business-related questions. Business-related answers may begin with "it depends," but must end with a number. When a CEO asks how much revenue your project will generate, "more" is not the [...]

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PFAS Consumer Fraud Litigation with John Gardella

November 14th, 2022|Categories: ELP, Emerging Litigation & Risk, HB Emerging Law Notes, Podcasts|Tags: , , , , , , , , , , , |

These stubborn chemicals are everywhere. But when they find their way into products, shouldn't someone tell consumers? Per- and poly-fluoroalkyl substances (“PFAS”) are a family of more 12,000 manmade compounds.  That's a huge family. Most people would recognize the brand names Teflon, produced by Dupont and Scotchgard produced by 3M. They also go by the nickname “forever chemicals” because they are highly persistent and mobile in the environment and the human body. In addition to bodily injury and environmental pollution litigation, plaintiffs are bringing suits against companies for claiming their products and the making of their products are safe and green. New consumer lawsuits seeking millions in damages are targeting oral hygiene products -- like a recent case involving dental floss -- cosmetics, apparel, and food packaging. Listen to my interview with environmental lawyer John Gardella of CMBG3 Law who discusses why PFAS concern citizens, media and legislators, what legal risks corporations face, and why we're seeing  a surge in consumer fraud litigation. This podcast is the audio companion to the Journal on Emerging Issues in Litigation. The Journal is a collaborative project between HB Litigation Conferences and the Fastcase legal research family, which includes Full Court Press, Law Street Media, and Docket Alarm. The podcast itself is a joint effort between HB and our friends at Law Street Media. If you have comments or wish to participate in one our projects please drop [...]

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Medical Monitoring for Modern Times with Ed Gentle

November 1st, 2022|Categories: ELP, Emerging Litigation & Risk, HB Emerging Law Notes, Podcasts|Tags: , , , , , , , , , |

Medical Monitoring for Modern Times: Attorney and court-appointed neutral Ed Gentle shares his vision for a new paradigm for mass torts.  Marissa, a resident of a small town in Kentucky, learned that for some time her drinking water may have been contaminated with so-called "forever chemicals" or PFAS. It's really a collection of chemicals used in products like fire-suppression foam, cookware, stain-resistant sprays, and food packaging. A local public radio reporter covering the story asked Marissa for her reaction. "I was never informed," she said. "And now I'm worried, like, I hope I don't have issues some day in my life."   Marissa's concern is like that of many people who find themselves in this situation and is at the center of this episode. When a case like Marissa's goes to court, plaintiffs will seek a ruling that the responsible parties pay for years of medical monitoring. That means they are suing often without signs of an existing injury, and that defendants must pay for something when an injury may not arise. Attorney, author, and court-appointed case neutral, Edgar C. Gentle III, says  that approach is antiquated. He outlines a better way in his 2014 essay titled The Medical Monitoring Tort Remedy: Its Nationwide Status, Rationale and Practical Application (A Possible Dynamic Tort Remedy for Long Term Tort Maladies). Now he shares [...]

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Litigation’s Role in Gun Safety Advocacy: An Interview With Adam Skaggs of Giffords

October 14th, 2022|Categories: Emerging Litigation & Risk, HB Emerging Law Notes|Tags: , , , , , , , , , |

Read the article We’re closing in on 400 million guns in America, weapons that have been used to kill 1.5 million Americans between 1968 and 2017. Can litigation be an effective tool in curbing this loss of life? In 2020 alone there were more than 45,000 gun deaths. The beyond tragic and senseless mass shootings at schools has become all too routine. Most Americans want stricter gun laws which they believe will reduce the senseless killing in our country, which leads the world in both the number of privately owned firearms and gun-related deaths. The Supreme Court, of course, didn't take public opinion into account when it struck down a more than century old New York City ban on concealed firearms. Politicians do, however, pay close attention to polls. At the federal level, President Joe Biden signed a bipartisan law designed to make Americans safer in our gun-toting nation. Hailed as a "great start" and a rare but welcome exercise in reaching across the aisle, the law will result in safer citizens, but didn't include much of what gun advocates say is really needed to effect meaningful change. In California, Governor Gavin Newsom signed a new law that gives citizens incentives to pursue gun manufacturers and dealers who sell illegal firearms. In New York, Democratic leaders, undaunted by the [...]

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Covid Insurance Coverage Decisions with Guest Marshall Gilinsky. Are Policyholders Catching Up?

September 22nd, 2022|Categories: ELP, Emerging Litigation & Risk, HB Emerging Law Notes|Tags: , , , , , , , , |

According to the online Covid Coverage Litigation Tracker (CCLT) run by Penn Law there have been more than 2,300 insurance coverage cases filed over denial of claims relating to Covid-19. Restaurants and bars were hardest hit by the pandemic and so led the way in seeking – and being denied – coverage, too. They are also leading the way in suing their insurers. The top five insurers in the defense position are Chubb Limited at #5, then #4 Lloyds of London, #3 Cincinnati Financial, and #2 Zurich.  And in the #1 position facing the most coverage suits is Hartford.  The insurance industry started off strong when this litigation began, winning the vast majority of the coverage suits. And they continue to do well, scoring with the argument that many of the claims do not involve actual property damage. Government closures don’t cause property damage, they argue. Courts have largely been siding with the carriers – but not all. Policyholders, a tenacious bunch, appear to be chipping away at the body of law in this suddenly expanding category. A recent case involving a New Orleans restaurant against Lloyd’s was penciled into the win column for carriers by a trial court , but an appeals court erased it and wrote the policyholder a narrow 3-2 victory. The appeals court said the language [...]

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EMR Audit Trail—What Is It? Why Do They Matter? What Should You Look For? by Haley K. Grieco and Brooke E. Reddin

September 20th, 2022|Categories: Emerging Litigation & Risk, HB Emerging Law Notes, HB Tort Notes, Journal on Emerging Issues in Litigation, New Featured Post for Home Page, Tort Litigation|Tags: , , , , , , , , , , , , , |

The Authors Haley K. Grieco (hgrieco@hallboothsmith.com) is a partner in the Paramus, New Jersey, office of Hall Booth Smith, where she defends physicians, hospitals, and other healthcare providers in a wide range of medical malpractice litigation. Brooke E. Reddin (breddin@hallboothsmith.com) is an associate with the firm, where she focuses her practice on healthcare, medical malpractice, and aging services 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. EMR Audit Trail—What Is It? Why Do They Matter? What Should You Look For? "As the healthcare industry becomes increasingly digitized, it is imperative that attorneys appreciate the impact it may have on their clients and their practice. In medical malpractice matters, discovery requests for metadata—specifically, the production of the EMR audit trail—has steadily increased over the past few years." Abstract: Maintaining electronic medical records, or EMRs, is now a nearly universal best practice among medical providers from small physician practices to large hospital networks. Unlike handwritten or typed records, these digital documents carry with them much more data than meets the eye. In this article, the authors—two medical malpractice attorneys— discuss what attorneys need to know about EMRs in the litigation context and [...]

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Employers Be WARNed: Workforce Reduction Rules Meet New Workplace Definitions as Employees Go Remote by Juan Enjamio and Steven DiBeneditto

September 6th, 2022|Categories: Emerging Litigation & Risk, HB Emerging Law Notes, Journal on Emerging Issues in Litigation, New Featured Post for Home Page|Tags: , , , , , , , , , , , , |

The Authors: Juan C. Enjamio (jenjamio@huntonak.com) is managing parter of the Miami office of Hunton Andrews Kurth where he dedicates his practice to complex domestic and international employment law matters. Steven J. DiBeneditto Jr. (sdibeneditto@huntonak.com) is a Washington, DC-based associate in the firm’s employment and labor group. 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. Employers Be WARNed Workforce Reduction Rules Meet New Workplace Definitions as Employees Go Remote "Numerous courts have opined that a “home base” is a place in which the employee has some sort of physical connection. But this connection must be more than a “notional” base, whereby the employee has a menial relationship." Introduction A common sentiment during the Covid-19 pandemic was that a different society would emerge from its ashes. While overstated in many cases, one segment of society that appears to have changed for good is the white collar workplace. Indeed, after enjoying the flexibility of working from home for more than 2 years, many white collar workers are demanding that a remote work option remain a permanent fixture at their place of employment. And with seemingly no negotiating leverage due to worker shortages across the [...]

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The Role of Litigation and Regulation in Making the Web More Accessible with Guests Ken Nakata and Hiram Kuykendall

September 2nd, 2022|Categories: ELP, Emerging Litigation & Risk, HB Emerging Law Notes|Tags: , , , , , , , , , , , , , , |

According to the International Agency for the Prevention of Blindness there are 43 million people around the world living with blindness, and 300 million living with moderate to severe visual impairment. Put those statistics next to these: There are nearly 2 billion websites, and 550,000 created every day. Shouldn’t sight-impaired people have the same access to these sites as sighted people? Of course they should. There is good news. After previously announcing guidance, the DOJ says new regulations are on the way under Title II of the Americans with Disabilities Act, which describes the obligations for state and local governments. My guests say there are many reasons to be excited about this. My guests say there are many reasons to be excited about this. Ken Nakata is Co-Founder and Principal at Converge Accessibility, whose solutions help make sure websites and other technologies are accessible to people with disabilities. Ken is former Senior Trial Attorney with the DOJ Disability Rights Section where he developed nationwide ADA policies for the internet. Joining Ken is Hiram Kuykendall, Chief Technology Officer at Microassist, an Austin-based learning and development consulting. Hiram is a technical leader with hands-on experience in instructional design and digital accessibility. This podcast is the audio companion to the Journal on Emerging Issues in Litigation. The Journal is a collaborative project between HB Litigation Conferences and the Fastcase legal research family, which includes Full Court Press, Law [...]

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Insurance Coverage for Digital Assets: Mitigating Losses in Cryptocurrency and Non‐Fungible Token Markets by Scott DeVries, Jessica Cohen-Nowak and Adriana Perez of Hunton Andrews Kurth

August 31st, 2022|Categories: Emerging Litigation & Risk, HB Emerging Law Notes, HB Tort Notes, Journal on Emerging Issues in Litigation, New Featured Post for Home Page, Tort Litigation|Tags: , , , , , , , , , , , , , , |

Companies and individuals are riding the ups and downs of cryptocurrency and NFTs—with losses and swings in the billions of dollars—but digital assets are not going away. Abstract: The risk of loss in certain categories may be mitigated by insurance, whether provided by tailored policies and/or under policies designed specifically for digital asset owners. Those with exposure to the digital asset sector should be attuned to the emerging marketplace for such insurance products. While it is early days for NFT-specific coverage, the rise of cryptocurrency has created a substantial marketplace for crypto coverage. Insurers are becoming increasingly able to model and assess risk, so more products are coming to market. That said, digital asset holders need to be able to select coverage that best suits their needs. In this article, the authors discuss the history and status of coverage for digital assets to assist readers in exploring how they might use insurance to mitigate risk in this emerging and rocky sector of global finance. "Over the course of a decade, the marketplace for cryptocurrency has increased from zero to an estimated $250 billion. However, only $6 billion in insurance coverage is currently available. It would be a gross understatement to say that there is a truly remarkable imbalance between market value and insurance capacity." Introduction Crypto [...]

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The Environmental, Social, and Governance Police Have Arrived: Is Your Insurance Ready? by Robert D. Chesler and Dennis J. Artese

August 29th, 2022|Categories: Emerging Litigation & Risk, HB Emerging Law Notes, HB Tort Notes, Journal on Emerging Issues in Litigation, New Featured Post for Home Page, Tort Litigation|Tags: , , , , , , , , , , |

The Authors Robert D. Chesler (rchesler@andersonkill.com) is a shareholder in Anderson Kill’s New Jersey office and is a member of the firm’s Cyber Insurance Recovery Group. He represents policyholders in a broad variety of coverage claims against their insurers and advises companies with respect to their insurance programs. Dennis J. Artese is a shareholder in Anderson Kill’s New York office and chairs the firm’s Climate Change and Disaster Recovery Group. Both are members of the Editorial Advisory Board of the Journal. 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. The ESG Police Have Arrived: Is Your Insurance Ready? "ESG has become a major initiative for corporate America. In particular, the environmental prong of ESG calls for companies to institute sustainability goals and to invest in environmentally friendly companies. This emphasis has both economic and popular support. Environmental sustainability will make companies better able to compete and make their businesses less risky." Abstract: The environmental, social, and governance movement is a positive one, but like many well-intentioned efforts there is room for abuse and risk. As corporations endeavor to earn accolades and good will for “doing the right thing,” they must also be [...]

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Litigating a Claim to Recover Liquidated Damages by Laura Fraher

August 24th, 2022|Categories: Emerging Litigation & Risk, HB Emerging Law Notes, HB Tort Notes, Journal on Emerging Issues in Litigation, New Featured Post for Home Page, Tort Litigation|Tags: , , , , , , , , , , |

The Author Laura C. Fraher (fraher@slslaw.com) is a senior attorney in the trial and construction group at Shapiro, Lifschitz & Schram in Washington, D.C. She has extensive experience in civil litigation at both the trial court and appellate level. Competitive by nature, Laura played rugby for nearly 20 years. She puts this competitive spirit to work through her passion for the law and her clients. Education: St. John’s University School of Law, J.D., 2001, magna cum laude; SUNY College at Geneseo, B.A., Political Science, 1998. 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. Litigating a Claim to Recover Liquidated Damages: Enforceability Depends on Evidence of Good Faith Expectations "The tests and standards that courts apply to evaluate whether a particular liquidated damage provision is enforceable vary from state to state and it is imperative that litigants research and fully appreciate the particular standards that will be applied by the court in which they are litigating." Abstract: The liquidated damages provision in a contract is a useful mechanism for mitigating risk in the event one of the parties to an agreement breaches the contract, costing the aggrieved party sometimes significant difficulty and [...]

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Epiq Class Action Settlement Efficiency

August 19th, 2022|Categories: Emerging-On-Demand-CLE, Featured On-Demand, Risk-On-Demand-CLE, Torts-On-Demand-CLE|Tags: , , , , , , , |

Epiq presents a CLE-eligible webinar Wait Wait ... Don't Settle! Essential elements of effective class action settlements. When it comes to complex class action litigation, once the hard work is done – litigation and settlement – more hard work begins – administering it.  But is the deal really ready? After years of arduous proceedings, discovery, motions, appeals, hearings, negotiations, and more, the scope and structure of your settlement has been drafted. Everyone is in agreement. The hard work of the courts, the attorneys, the legal teams, and the litigants is complete. Now it's time to administer the settlement. Send out notices. Cut the checks. Get people paid. Boom! Sit back and relax. Get a claims administrator to take it from there. But wait … you find out that the terms of the agreement, the promises made, the budget established, and the deadlines calendared are not only inefficient, they are completely unworkable. Now the settlement is in jeopardy. The clients are frustrated. The court is frustrated. And you have a headache. That is a situation you, as a class action attorney, never want to find yourself in. The best way to avoid this quagmire is for attorneys to work with a professional and experienced claims administrator before you agree on settlement terms, someone who has been to this rodeo [...]

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