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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Resolving Insurers’ and Insureds’ Settlement Dilemmas When Policy Limits Are Insufficient: Multiple Insured and Multiple Claims

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

Resolving Insurers' and Insureds' Settlement Dilemmas When Policy Limits Are Insufficient: Multiple Insured and Multiple Claims Liability insurers, depending on the jurisdiction, may have to accept a policy limit settlement demand when liability is reasonably clear and the amount of the judgment "likely" will exceed the policy limit. Unique problems arise when an insured faces multiple claims from a single occurrence, liability is clear, and the policy limits are insufficient to settle all claims. Options for dealing with the issue exist, but all potentially expose the insurer to bad faith claims. The panel will explore different approaches, the jurisdictions that follow them, and solutions that offer insurers the best protection from extracontractual claims.Equally vexing is the situation in which more than one insured, such as both the owner of a vehicle and its driver, are covered under one policy. A claimant might demand the policy limits but release only one of the insureds. In such a situation, the insurer could face bad faith claims from one insured for refusing to settle and from the other for agreeing to settle.An interpleader action may not be the answer. Interpleading policy limits can leave the insurer vulnerable to accusations of artificial exhaustion, abandonment of the duty to defend, and a bad faith claim that the insurer shirked its duty to use policy funds to limit the [...]

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Litigation Privilege, Attorney Immunity and Ethics: Defending Retaliatory Suits and Ethics Complaints

January 27th, 2023|Categories: HB Tort Notes, Tort Litigation, Tort Webinars|Tags: , , , , , , , |

Litigation Privilege, Attorney Immunity and Ethics: Defending Retaliatory Suits and Ethics Complaints When attorneys seek to gain an advantage by disclosing or threatening to disclose embarrassing secrets, illegal activity, deny facts known to be true, or otherwise cause fear to the opposing party, they are more frequently being sued for defamation, bad faith, intentional interference with contractual or beneficial relations, intentional infliction of emotional distress, fraud, or the like.Sometimes these types of activities are absolutely privileged and sometimes they are only entitled to partial immunity. Much depends on when and where the statements are made and how state courts define “litigation.â€Regardless of civil liability, such conduct can lead to ethics complaints. Model Ruel 4.1 attempts to set some boundaries, but it offers no bright line rule. Landry’s Inc., et al. v. Animal Legal Defense Fund, et al (Tex., No. 19-0036, June 15, 2021), and Dorfman v. Smith, 342 Conn 582 (2022), are just two illustrations of the risks lawyers face if they utilize these tactics.Listen as our experienced panel of litigators assists counsel in understanding the judicial proceedings privilege and attorney immunity and the limits of MR 4.1. Outline Statutory authority and procedural requirements Strategies for plaintiffs Avoiding federal question Avoiding diversity, pre- and post-filing Federal question issues as counterclaims; Home Depot v. Jackson Amending the complaint Strategies for defendants Contractual forum selection Snap removal [...]

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Construction Builders Risk and CGL Insurance: Scope of Coverage, Covered Losses, Exclusions, AI Endorsements

January 26th, 2023|Categories: Featured On-Demand, HB Tort Notes, Tort Litigation, Tort Webinars|Tags: , , , , , |

Construction Builders Risk and CGL Insurance: Scope of Coverage, Covered Losses, Exclusions, AI Endorsements: Mitigation Construction- Related Disputes; Key Challenges for Claims Under Builders Risk Vs CGL Coverage Counsel to builders and developers must consider are who is covered, what property is covered, what limits and sublimits apply, and when/how coverage applies. Because builders risk policies are not standardized, coverage varies dramatically between insurers. Coverage disputes often arise over the types of costs recoverable, calculation of economic damages, and the coverage exclusions and exceptions.For liability disputes, CGL coverage must be adequately placed to cover construction risks during the course of construction as well as after. Typical issues include who is covered, the scope of coverage, and exclusions and conditions that apply.Counsel often must also navigate the interplay between builders risk policies, CGL policies, including wrap policies, and professional liability policies. These issues are influenced by the language of the policies and the parties’ contractual obligations to each other. Attention to the details is necessary to ensure coverage is triggered when necessary.Listen as our authoritative panel guides you through the characteristics of builders risk and CGL insurance policies and how these policies are used to mitigate developer and contractor risks. Outline Builders risk policies Contractual requirements Scope of coverage Troublesome exclusions and conditions Common issues and practice pointers CGL policies [...]

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Allocating CERCLA Liability: Divisibility or Section 113 Equitable Contribution

January 26th, 2023|Categories: Featured On-Demand, HB Tort Notes, Tort Litigation, Tort Webinars|Tags: , , , , |

Allocating CERCLA Liability: Divisibility or Section 113 Equitable Contribution Assessing Harm, Proving Divisibility of Harm Defense Absent a Bright-Line Test, and Apportioning Costs The U.S. Supreme Court's decision in Burlington Northern & Santa Fe Railway Co. v. U.S. significantly changed the landscape for divisibility under CERCLA. However, there is no bright-line test for determining divisibility, and the courts have taken different approaches in evaluating this issue.In decisions involving the Fox River in Wisconsin and the Upper Columbia River in Washington state, as well as opinions from courts in Rhode Island and South Carolina, judges and parties have wrestled with the critical question for divisibility: is the harm "theoretically capable of apportionment"?If a court answers this question with a yes, the party seeking to limit its liability succeeds. If the answer is no, that party must try again under a much less favorable equitable allocation approach. These and other opinions addressing the divisibility/apportionment divide continue to guide courts, litigants, and pre-litigation parties as they attempt to settle or otherwise resolve responsibility at contaminated sites.Listen as our authoritative panel examines the statutory language and what the Burlington Northern decision and its progeny mean for divisibility. The panel will also review cases applying this problematic technical issue and offer practice pointers on which circumstances lend themselves to a divisibility defense and how to present it. Outline Divisibility defense [...]

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Drafting Joint Defense Agreements: Protecting Privilege, Sharing Work Product, Avoiding Disqualification

January 23rd, 2023|Categories: HB Tort Notes, Tort Litigation, Tort Webinars|Tags: , , , , , |

Drafting Joint Defense Agreements: Protecting the Privilege, Sharing Work Product, Avoiding Disqualification Joint defense agreements can be a valuable tool for counsel representing co-defendants facing a variety of types of litigation, including intellectual property, securities, energy/environment, commercial litigation, antitrust, product liability, and mass torts. Joint defense agreements allow defendants to reduce costs and coordinate strategies, discovery, and filings.Joint defense agreements are not without risks, however.Sharing work product and confidential information among defendants--who are frequently also competitors--may expose and lead to future litigation among the co-defendants. Counsel considering entering into joint defense agreements must carefully scrutinize the pros and cons and establish preemptive safeguards to protect their client's interests and confidential information.Listen as our authoritative panel of experienced litigators examines the critical factors that parties contemplating a joiit defense argument must evaluate, the essential provisions of the deal itself, and strategies for meeting the legal ethics requirements related to joint defense agreements. Outline Considerations before entering a joint defense agreement Advantages and disadvantages Cost Participants What information to share Settlement issues Joint defense agreement Key provisions Provisions concerning disclosure Ethical considerations Conflicts of interest and potential disqualification Protecting privileged information Ethics opinions addressing joint defense A Strafford production specially selected for HB audiences. Caroline Covington Attorney Steptoe & Johnson The panel will review these and [...]

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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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Environmental Audits: Privilege, Voluntary Disclosure, and Other Legal Issues

January 11th, 2023|Categories: Featured On-Demand, HB Tort Notes, Tort Litigation, Tort Webinars|Tags: , , , , |

Environmental Audits: Privilege, Voluntary Disclosure and Other Legal Issues: Ensuring Compliance With Environmental Laws, Responding When Violations Are Discovered Environmental audits allow companies to proactively identify and address environmental problems before civil litigation or enforcement actions arise. The EPA and many states offer companies incentives to encourage compliance, including self-reporting identified issues in order to be eligible for potential reduced or eliminated penalties.Whether a newly acquired or long-standing business, companies and their counsel must take measures to ensure ongoing environmental compliance and environmental audits provide an avenue for detecting and correcting potential problems. Regular self-auditing can help reduce governmental penalties and limit injunctive relief faced in enforcement actions, apart from voluntary disclosure of noncompliance to regulatory agencies.There are potential risks associated with voluntarily uncovering and documenting violations, as well as with the disclosure of violations. Audit findings can be evidence of compliance gaps and a company's knowledge of those holes. And audit disclosures may not always lead to a clean resolution of disclosed violations with the regulatory agency. Disclosed information could still lead to enforcement action and also may provide ammunition in private actions against the disclosing party.Listen as our panel of environmental attorneys examines environmental enforcement policies and environmental auditing programs. The panel will discuss privilege and its exceptions, as well as the pros and cons of voluntary disclosures. The panel will also [...]

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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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Policy Derailed: Can U.S. Antitrust Policy Toward Standard Essential Patents Get Back on Track by Jonathan Rubin

January 4th, 2023|Categories: Emerging Litigation & Risk, HB Emerging Law Notes, Journal on Emerging Issues in Litigation, New Featured Post for Home Page|Tags: , , , , , , , , , , |

The Author Jonathan Rubin (jrubin@moginrubin.com) is Co-Founder and Partner of MoginRubin LLP, a boutique antitrust, mergers and acquisitions, and class action law firm. Since 2001, he has focused his legal practice exclusively on antitrust and competition law and policy. As a litigator he has led trial teams in major antitrust cases in courts throughout the country. Rubin is a 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. Policy Derailed: Can U.S. Antitrust Policy Toward Standard Essential Patents Get Back on Track? "The failure to appropriately adjust the patent system to accommodate the competitive circumstances created when patents are incorporated into standards undermines the purposes of the standard-setting enterprise and impairs the utility and proliferation of standardized technologies. Without a course correction among the judiciary, the United States risks finding itself as a less desirable jurisdiction for pro-growth and pro-competitive patenting and standard-setting activities." Abstract: A consensus at the intersection of patent and anti-trust law was achieved after a series of decisions finding that in some circumstances owners of standard essential patents (SEPs) have an antitrust duty to [...]

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PFAS Consumer Fraud Litigation

January 4th, 2023|Categories: Emerging Issues Webinars, Emerging Litigation & Risk, Featured On-Demand, Tort Webinars, Torts-On-Demand-CLE|Tags: , , , , , , , , , , |

HB Litigation Conferences presents a CLE-eligible webinar PFAS Consumer Fraud Litigation and Regulation On August 26, 2022, yet another PFAS consumer fraud lawsuit was filed against a product manufacturer in which it is alleged that since the products contained PFAS and the company marketed the products as environmentally friendly and safe for use by consumers, a proposed class of consumers was deceived into buying the allegedly unsafe products. The lawsuit is not an isolated incident, as there have been over 20 such lawsuits, almost all of them filed in 2022. With the ever-increasing media, political and scientific attention being given to PFAS, the panelists predict that these lawsuits will continue to increase at an exponentially increasing rate moving forward against companies of all sizes that manufacture and supply products. Bringing together almost 20 years of product litigation experience and decades of scientific expertise in the field of chemicals such as PFAS, the panelists will discuss the legal issues that companies are facing from current or legacy uses of PFAS (whether intentional or not) and practical solutions that can be taken pre-lawsuit to understand and minimize risk.  Questions answered: What do state and federal regulations say about PFAS in drinking water? If your company doesn’t use the two original types of PFAS, are you at less risk of [...]

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Lawyers for Good with Tara Trask and Jason Flom

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

If you're feeling bad about being a lawyer, or just maybe tingling with the holiday spirit of giving back, this episode is for you. Listen to three professionals (well, maybe two "professionals") who deeply admire for the legal profession, the important role attorneys play in society, and all the potential they have to make the world a better place. When there is strife, there is a supporting organization, and with them are lawyers. Wrongful convictions. Voting rights. Environmental protection. The rights of women, people of color, workers,  LGBTQ, immigrants, asylum seekers.  Lawyers are in a unique position to do something about all of this. And they do. And we hope more will. Join me as I interview nationally acclaimed trial consultant Tara Trask and music industry star-maker Jason Flom. Tara Trask is the President of Trask Consulting, a boutique litigation strategy, jury research and trial consulting firm. Tara  focuses complex commercial litigation, from intellectual property to antitrust, from products liability to insurance, and oil and gas. She has extensive experience assisting institutions and individuals in matters involving regulatory enforcement and white-collar defense. Tara has been involved in more 450 jury trials. Music industry executive Jason Flom is  CEO of Lava Records, Lava Music Publishing, and Lava Media, LLC.  He is former  CEO at Atlantic Records, Virgin Records and Capitol Music Group. [...]

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