Practical and insightful commentary on a variety of topics — new legal theories or areas of litigation — that plaintiff attorneys, defense counsel, corporations, risk professionals, and others will want to be aware of. A typical article comprises several analytical pieces by practicing attorneys and subject matter experts. Articles often form the basis of podcast episodes and webinars.
The Guest A highly regarded attorney and much-sought-after speaker for his expertise on the laws and operations of the technology-driven global financial system. Also a member of the Editorial Board of Advisors for the Journal on 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. Tanks and Banks: What Fintechs Must Know About Sanctions on Russia Tom Hagy Interviews Brad Rustin of Nelson, Mullins, Riley & Scarborough Click below to get the complete article.
The Authors The authors are all attorneys with the Kennedys law firm (kennedyslaw.com). Joshua Mooney (joshua.mooney@kennedyslaw) and Judy Selby (judy.selby@kennedyslaw.com) are partners. Tracey Kline (tracey.kline@kennedyslaw.com) and Alexis Childs (alexis.childs@kennedyslaw.com) are associates. Bridget Mead, associate, and Javier Vijil, senior associate, also contributed to this article. Judy Selby is also a member of the Editorial Board of Advisors for the Journal on Emerging Issues in Litigation. Cybersecurity and Data Privacy 2021 in Review By Joshua Mooney, Judy Selby, Tracey Kline, and Alexis Childs Abstract: As the world emerged from lockdown, it should come as no surprise that cybersecurity and data privacy remained dominant topics in the media and legal industry. Some of 2021 was much like 2020—ransomware attacks continued to fill the headlines, and in the aggregate, constituted significant loss paid under cyber insurance policies. OFAC reminded victim companies and incident response firms (and cyber carriers) that it remains unlawful to pay ransom payments to designated organizations. Comprehensive federal legislation addressing cyber defenses and notification requirements never materialized. Yet in 2021, we saw new and significant developments. U.S. law continued its drift toward comprehensive privacy regulation with two new significant pieces of privacy legislation and California’s enforcement of the California Consumer Privacy Act. In the absence of federal legislation, federal agencies either [...]
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. Bob represents policyholders in a broad variety of coverage claims against their insurers and advises companies with respect to their insurance programs. Dennis J. Artese (dartese@andersonkill.com) is a shareholder in Anderson Kill’s New York office and chairs the firm’s Climate Change and Disaster Recovery Group. Joseph Vila (jvila@andersonkill.com) is an insurance recovery attorney in Anderson Kill’s New Jersey office. Climate Change, ESG, and D&O Insurance: Collision or Cooperation? By Robert D. Chesler, Dennis J. Artese, and Joseph Villa Abstract: Climate change has been tied to the recent increase in catastrophic weather events. Insurance coverage for often billions of dollars in damage becomes a source of argument between insurers, who want to limit their exposure, and policyholders, who want the coverage they argue the carriers are contractually obligated to pay. The authors discuss the nature of the underlying suits and the potential coverage issues; the types of policies implicated; cases that have addressed these issues; the rising societal concern over climate change that have played a role in the new corporate emphasis on environmental, social, and governance, or ESG, and the insurance industry’s response to this [...]
The Author A leading academic and practitioner, Joshua P. Davis (davisj@usfca.edu) is a nationally recognized expert on legal ethics and class actions, as well as on artificial intelligence in the law, antitrust, civil procedure, free speech, and jurisprudence. He has published more than 30 scholarly articles and book chapters on these subjects and is currently writing a book on AI titled Unnatural Law, which will be published by Cambridge University Press. He is Research Professor of Law at the University of California Hastings College of Law, and a Shareholder of the Berger Montague PC law firm and Manager of its new San Francisco Bay Area Office. Before taking these posts, for more than 20 years Davis was a tenured Professor of Law at University of San Francisco Law School, where he also served as the Director of the Center for Law and Ethics. Davis is also a member of the Editorial Board of Advisors for the Journal on Emerging Issues in Litigation, published by Fastcase Full Court Press. Tom Hagy, Editor in Chief. You can also listen to Josh on the Emerging Litigation Podcast! Robojudges: If Machines Could Make Judicial Decisions, Should They? By Joshua P. Davis Abstract: As artificial intelligence makes its way into every aspect of our daily lives—including [...]
The Authors All three authors are with the law firm of Hall Booth Smith, P.C., and concentrate on various aspects of healthcare defense. Lindsay A. Nishan (lnishan@hallboothsmith.com) is an Associate in the HBS Charleston office. Samantha Bowen Myers (smyers@hallboothsmith.com) is an Associate in their West Palm Beach, Florida, office. Sandra Mekita Cianflone (scianflone@hallboothsmith.com) is a Partner in the firm’s Atlanta office. She is also a member of the Editorial Board of Advisors for the Journal on Emerging Issues in Litigation, and a frequent contributor to the Emerging Litigation Podcast. Going Viral or Going Nuclear: Social Inflation’s Impact on Jury Verdicts and How to Safeguard Against It By Lindsay A. Nishan, Samantha B. Myers and Sandra M. Cianflone A juror’s perception of companies and healthcare providers is increasingly colored by TV and social media. The same is true for their understanding of the practice law or medicine, which may be as wrong as it is immovable. “Social inflation” refers to rising litigation costs and the resulting higher insurance payouts which drive up the cost of insurance. In this article the authors, each of whom represents parties in the healthcare industry, discuss the evolving social trends that lead jurors to render “nuclear verdicts,” and what attorneys should consider in mitigating the effects of this [...]
Strategies for Maximizing Insurance Recovery for Climate Change–Related Loss and Damage Abstract Losses from natural catastrophes are costing many tens of billions as year, from hurricanes and tornadoes to record-breaking rainfall and floods. Whether the insurance industry will or can provide coverage for all of the devastating effects of climate change (or, as some might put it, a new and calamitous phase in our earth’s existence) only time will tell. In the meantime, policyholders must cross their Ts if they expect coverage. In this article the author shares insights on the complex but essential task of documenting and valuing post-storm losses. Author Dennis J. Artese (dartese@andersonkill.com) is a shareholder in the New York office of Anderson Kill P.C. His practice concentrates on insurance recovery litigation, with an emphasis on securing insurance coverage for first-party property losses, construction accidents, and third-party liability claims. About The Journal on Emerging Issues in Litigation is a co-production of HB, Fastcase, and Law Street Media. You can also hear the complementary (and complimentary) Emerging Litigation Podcast wherever podcasts appear. For questions, contact Tom Hagy, Editor in Chief, at Editor@LitigationConferences.com.
Biotech Patent Wars: If at First You Don’t Succeed . . . University of California v. The Broad Institute Abstract This case discussed in this article is about two methods of editing DNA: one that has infinitely more lucrative applications because it can edit human DNA (plus all animals and plants), another that works in cell-free environments. Whether inventions are separate or part of the same innovation is an important factor in patent interference disputes; if there are two patentably distinct inventions there cannot be interference. One party in this case lost its argument that there was only one invention at issue, but returned with a second interference claim, arguing that it was the first inventor to constructively reduce to practice the animal and plant DNA editor. In this article, the author examines the nuances and intricacies of the patent process in the world of biology, and how patent lawyers must possess a level of knowledge in disciplines related to the inventions they seek to protect. This is necessary, for example, in understanding whether an invention is a significant improvement over prior innovations. The author also shares the importance of confidentiality especially when potentially groundbreaking (and lucrative) inventions are in development. Author Adrienne B. Naumann (adriennebnaumann@uchicago.edu) practices intellectual property law at the Law Office of Adrienne B. Naumann in [...]
Mega Verdict Threat: Tackling Damages Early Can Mitigate Outsized Jury Awards Abstract Why have medical malpractice verdicts in recent years reached such astronomical new heights? In this article the author addresses several of the factors that drive juries to return such punishing awards, discussing the unexpected impact of tort reform, the role of life-care planners and economists in determining damages, the ramifications of litigation financing, plaintiff attorneys’ utilization of the so-called reptile theory, and the influence of how the media reports on these verdicts. The author offers practical methods for defense attorneys involved in this litigation and insights that will benefit attorneys in any type of tort matter. Author Sandra M. Cianflone (scianflone@hallboothsmith.com) is an attorney at law firm Hall Booth Smith, P.C., whose practice primarily focuses on medical malpractice. About The Journal on Emerging Issues in Litigation is a co-production of HB, Fastcase, and Law Street Media. You can also hear the complementary (and complimentary) Emerging Litigation Podcast wherever podcasts appear. For questions, contact Tom Hagy, Editor in Chief, at Editor@LitigationConferences.com.
Remediating, Insuring, and Litigating PFAS Claims Abstract PFAS are a group of chemicals found in a variety of products (e.g., Teflon®) and have been used widely in industrial and environmental processes (e.g., oil recovery, firefighting). They do not break down, and over time can accumulate in the body and the environment. While largely no longer used in the United States, they continue to be used internationally. Studies have shown they have adverse health effects on humans and animals. In this article the authors discuss the history and impact of PFAS, insurance coverage for claims relating to PFAS contamination, the practice of “insurance archaeology,” maximizing insurance coverage, and, finally, existing and anticipated litigation arising from environmental damage and bodily harm from PFAS. Authors Dr. Jaana Pietari, PhD, MBA, PE (jpietari@ramboll.com), Senior Managing Consultant with Ramboll Group, has more than twenty years of professional and academic experience in the fate and transport of contaminants, the reconstruction of environmental releases to groundwater and sediments, and environmental forensics. Jim Fenstermacher, PE (jim.fenstermacher@ramboll.com), is a Subject Matter Expert on PFAS environmental fate, transport, and regularly interfaces with academia, provides branding, and supports business development efforts regarding PFAS issues. Dr. Michael Bock, PhD, MS (mbock@intell-group.com), Managing Director at The Intelligence Group, has more than twenty-five years of experience in environmental consulting with a specialization in [...]
Surfside Condo Collapse: A 360-Degree Insurance Coverage Analysis Abstract The horrific and fatal collapse of Champlain Towers South in the summer of 2021 not only shook the ground in Surfside, Florida, but it brought into question the integrity of structures everywhere. If professionals in the construction, real estate, and building management industries were relaxed about signs of structural decay before, they are not anymore. The insurance industry also has reasons to worry, as potentially responsible players turn to their policies to defend or indemnify them for claims for accidents causing losses including from property damage, personal injury, or death. In this article the authors evaluate the factors that are addressed when coverage determinations are made, as well as the various types of policies that come into play. Authors Allen R. Wolff (awolff@andersonkill.com) is a shareholder in Anderson Kill’s New York office, where he concentrates on the intersection of construction litigation and insurance recovery. Allen is co-chair of the firm’s Construction Industry Practice group and Corporate and Commercial Litigation Practice group. He advises and represents policyholders—building owners, developers, contractors, retailers, municipalities, financial institutions, hospitality businesses, condominium associations, and tenants’ associations—in a range of insurance coverage disputes. Allen’s colleagues, Ethan W. Middlebrooks (emiddlebrooks@andersonkill.com) and Jason Kosek (jkosek@andersonkill.com), are also attorneys in Anderson Kill’s New York office. They also concentrate on insurance [...]
To Pay or Not to Pay: Does Your Insurance Policy Cover Ransomware Losses? Abstract Ransomware attacks are a rapidly growing threat against organizations. Paying ransom demands is a risky proposition and may even lead to sanctions against the targeted company. Either way, the damage to a company’s operation and integrity can be cripplingly severe. Should a company suffer losses from cyber extortion, its insurance company will be one of the resources it turns to for relief. But with cyber coverage increasingly out of reach for some, policyholders may find coverage in more traditional coverages. In this article, the author evaluates the potential for coverage under several policy types, and underscores the importance of understanding policy language, the relevant law, and the potential regulatory ramifications of meeting ransom demands. Author Pamela D. Hans (phans@andersonkill.com) is the managing shareholder of Anderson Kill’s Philadelphia office. Her practice concentrates on insurance coverage exclusively on behalf of policyholders. Pam is also a member of the firm’s COVID Task Group and Cyber Recovery Group. About The Journal on Emerging Issues in Litigation is a co-production of HB, Fastcase, and Law Street Media. You can also hear the complementary (and complimentary) Emerging Litigation Podcast wherever podcasts appear. For questions, contact Tom Hagy, Editor in Chief, at Editor@LitigationConferences.com.
Virtual Hearings: Changing Perceptions of Executive Testimony? Abstract Given the newly acceptable ease of securing testimony via webcam—necessitated by the pandemic—this article focuses on efforts to compel the appearance of corporate executives to testify in litigation. While there are many practical advantages to virtual testimony, the authors maintain that mere convenience cannot replace legal standards of relevance and undue burden when pursing the testimony of executives. Authors Sean J. Coughlin (scoughlin@bressler.com) is a Principal in the Financial Institutions group at Bressler, Amery & Ross, P.C., where he represents institutions and individuals in regulatory investigations and defense litigation. Before joining the firm, he was an Executive Director in the legal department at Morgan Stanley, a Managing Director at Citigroup/Smith Barney, and a Senior Assistant District Attorney in the Kings County District Attorney’s office. Jacqueline R. Meyers (jmeyers@bressler.com) is an associate at Bressler, Amery & Ross, P.C., whose practice focuses on securities defense litigation, arbitration, and regulatory investigations. She has specialized experience in litigation concerning arbitrability and enforcement of arbitration awards. About The Journal on Emerging Issues in Litigation is a co-production of HB, Fastcase, and Law Street Media. You can also hear the complementary (and complimentary) Emerging Litigation Podcast wherever podcasts appear. For questions, contact Tom Hagy, Editor in Chief, at Editor@LitigationConferences.com. [...]
