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Environmental Litigation: Piercing the Corporate Veil, Alter Ego, and Successor Liability

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

Environmental Litigation Piercing the Corporate Veil, Alter Ego, and Successor Liability Environmental investigations and remediation expenses are costly. Private litigants and state and federal governments often seek viable "deep pocket" entities or high net worth individuals to pay for the cleanup costs allegedly attributable to an otherwise defunct or underfunded company's historical operations that caused the environmental contamination. In the typical scenario, the separate entity (parent company, shareholder, or successor in interest) does not own, lease, or operate the facility at issue, nor did it directly release a hazardous substance into the environment. And often, the former company was dissolved years ago and incorporated in an entirely separate state. Thus, the parent company, shareholder, or successor-in-interest is blindsided by the claims letter, lawsuit, or enforcement order--all of which require a strategic and accurate response. This type of indirect liability can be a real threat in any environmental litigation if pleaded correctly and supported by facts, and not met by a strong, well thought out and supported defense. As such, environmental litigators must be adept at using or defending against these theories of liability before they arise. Listen as our panel provides environmental litigators with an analysis of legal theories of alter ego and successor liability as they relate to environmental liabilities at cleanup sites and provides guidance on factors to consider and [...]

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Government Involvement in Medical Decisions During Outbreaks with Bryce McColskey and Sandra Cianflone

March 28th, 2023|Categories: ELP, Emerging Litigation & Risk, HB Tort Notes, Podcasts|Tags: , , , , , , , , , , , |

Government Involvement in Medical Decisions During Outbreaks  It's apparently (and hopefully) on its last legs. The Covid-19 pandemic was the most recent health issue to raise questions around government’s involvement (or interference) in an individual’s control over their own medical treatment. In their article – Government Involvement in Medical Care Decisions During Outbreaks of Disease: How Far is Too Far? – our guests wrote about the intersection of law and medicine. They reviewed medical mandates, implications brought about by the impact of advances in science and medicine, and where role of government to protect public health intersects (or collides) with personal healthcare choices. They focused is on governmental responses to the pandemic, that is, what the government can mandate in the spirit of public health, and not on the separate issue of abortion, which is a “choice” subject for another day. How much authority do government agencies or even the courts have over a person’s healthcare decisions? People often assume the practice of medicine and the enactment and enforcement of laws are separate and independent enterprises; that they remain fixed in their respective corners. However, they wrote, after a deeper  dive  into  history and precedent, it’s evident that the tension between individual rights and health-related mandates has existed for some time. Listen to my interview with the authors, Bryce McCloskey and  Sandra M. [...]

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Government Involvement in Personal Medical Care Decisions During Outbreaks of Disease: How Far Is Too Far? by Bryce McColskey and Sandra M. Cianflone

March 23rd, 2023|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 Bryce McColskey (bmccolskey@hallboothsmith.com) is an attorney with Hall Booth Smith, P.C., based in Jacksonville, Florida, where he focuses on medical malpractice and professional liability law. Sandra M. Cianflone (scianflone@hallboothsmith.com) is a partner in the Atlanta office of Hall Booth Smith, where she concentrates on a variety of aspects of healthcare defense and chairs the firm’s Coronavirus Task Force. She is also a member of the Editorial Board of Advisors of 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. Government Involvement in Personal Medical Care Decisions During Outbreaks of Disease:  How Far Is Too Far? "Breakthroughs in technologies, our knowledge of diseases and mutations, and advances in treatment options have been remarkable and have drastically reduced fatality rates from disease outbreaks. However, regardless of medical achievements, rapid changes in any field open the door to renewed debates over different laws and individual rights." Abstract: The coronavirus pandemic is the latest health issue to raise the question of government’s involvement (or interference) with an individual’s control over their own healthcare and medical treatment. In this article, the authors, two health care and professional liability [...]

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The Cannabis Employment Law Patchwork with Keya Denner

March 22nd, 2023|Categories: ELP, Emerging Litigation & Risk, HB Tort Notes, Podcasts|Tags: , , , , , , , |

The Cannabis Employment Law Patchwork with Keya Denner Maryland and Missouri are the latest states to legalize recreational cannabis for people 21 and older. Voters came out in favor of legalization in the November 2022 midterms, bringing the total recreational jurisdictions to 22 states and the District of Columbia. Voters in North Dakota, South Dakota, and Arkansas, however, decided against recreational marijuana. It remains legal for medical reasons in all five states.  In the employment context, both recreational and medicinal uses raise questions about protections for employees who use the drug legally. Which states are enacting those protections? What do multi-state employers need to do? What about drug testing? As a requirement to get a job and as a requirement to keep your job? What about this: who is going to say whether a worker is impaired? Will there really be hall monitors trained in spotting your high? For answers to these questions and more, listen to my interview with Keya Denner, a partner at Constangy, Brooks, Smith & Prophete LLP. Keya is an experienced litigator who has been practicing labor and employment law for almost 20 years. Few attorneys nationwide match Keya’s expertise in the area of legal cannabis and its impact on the workplace. He has counseled Fortune 500 companies in the retail, hospitality, and global logistics spaces [...]

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The In Pari Delicto Defense to Bankruptcy and Other Claims Against Directors, Officers, and Third Parties

March 22nd, 2023|Categories: Emerging Issues Webinars, Featured On-Demand, HB Tort Notes, New Webinars, Tort Litigation, Tort Webinars|Tags: , , , , , , , , |

The In Pari Delicto Defense to Bankruptcy and Other Claims Against Directors, Officers, and Third Parties Anticipating or Raising the Defense in Bankruptcy and Other Asset Recovery Litigation Bankruptcy trustees, receivers, creditors, assignees for the benefit of creditors, investors, and other plaintiffs in asset recovery actions often aggressively pursue claims against the management as well as outside professionals and lenders of distressed and insolvent entities, including accountants, auditors, attorneys, banks, and advisers.A significant defense for professionals and banks in such cases is the in pari delicto doctrine. When the plaintiff stands in the shoes of the debtor entity--as do bankruptcy trustees, receivers, assignees for the benefit of creditors, and some others often do--and attempts to recover for the debtor's conduct in which the debtor's officers, directors, or employees were complicit, the defendants often seek to bar recovery arguing that the plaintiff is "of equal fault" with defendants.This defense has been rapidly evolving in the past few years, and its scope varies by jurisdiction. The Madoff and MF Global litigation, among many other high-profile cases, featured this defense prominently. Additionally, insight has emerged from the U.S. Circuit Courts of Appeal and the defense is expected to play a prominent role in the cryptocurrency bankruptcies.Listen as our authoritative panel of trial lawyers discusses recent trends in asset recovery litigation against officers, directors, and outside professionals of distressed companies, as well as banks, [...]

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The New European Unified Patent Court with Marianne Schaffner and Thierry Lautier

March 2nd, 2023|Categories: ELP, Emerging Litigation & Risk, HB Tort Notes, Podcasts|Tags: , , , , , , , , , |

What's the new European patent court mean to global innovators? The European Union’s new Unified Patent Court is an international body set up by participating EU Member States to deal with the infringement and validity of both Unitary Patents and European patents. The court's objective is “putting an end to costly parallel litigation and enhancing legal certainty.” Unitary patents are intended to make it possible to get patent protection in up to 25 EU Member States by submitting a single request to the European Patent Office, making the procedure simpler and more cost effective for applicants. The new system goes live on June 1, 2023. What must U.S. and multi-national U.S.-based companies understand about the court? Why should inventors and their organizations factor it in to any existing or new patent strategy they may be developing? For answers to these questions and more listen to my interview with attorneys Marianne Schaffner and Thierry Lautier who practice out of the Paris office of Reed Smith. Marianne heads the intellectual Property team in Paris and the patent practice in Europe. She manages complex national and transnational patent, trade secrets and trademark disputes in the healthcare, chemistry, technology and telecommunications sectors. Thierry is part of the firm’s global Intellectual Property Group. With a dual legal and engineering/scientific background, Thierry uses his understanding, knowledge, and experience to provide clients with [...]

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Reimagining the Administration of Justice with Qudsiya Naqui of Pew Charitable Trust

February 27th, 2023|Categories: ELP, Emerging Litigation & Risk, HB Tort Notes, Podcasts|Tags: , , , , , , , , , |

Before COVID-19 came to America in early 2020, “going to court” literally meant putting on your shoes and walking into a courthouse, typically a large building with courtrooms inside, and people in robes and business suits and, in some cases, more restrictive attire.  Stoked by necessity, courts sprinted toward solutions for keeping the wheels of justice spinning while also keeping everyone away from each other. Until then it didn’t seem possible that attorneys could or would appear before judges via digital screens, like George Jetson getting yelled at by Mr. Spacely over some hilarious mishap at the sprocket factory. Pew Charitable Trust concluded an in-depth study of the courts with the 2021 release of a report,  “How Courts Embraced Technology, Met the Pandemic Challenge, and Revolutionized Their Operations.” After examining emergency orders from all 50 states and Washington, D.C., and court approaches to virtual hearings, e-filing, and digital notarization, the researchers wrote that it was a time for "reimagining how to administer justice.” Was the adoption of technology effective? Were there any hiccups? Was technology widely embraced? Were the effects of new efficiencies enjoyed evenly across the socio-economic spectrum? Do we think courts will continue to reimagine how they administer justice without the crushing pressure of widespread disease? Listen to my interview with Qudsiya Naqui who leads Pew’s research at the intersection of technology [...]

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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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