European Court of Human Rights to Hear Case on Climate Change by Victoria Kline

April 7th, 2023|Categories: HB Risk Notes|Tags: , , , , , , , , , |

Guest Writer Victoria is a third-year student at the University of Miami School of Law, Juris Doctorate Candidate 2023, Law Review Staff Editor, and soon-to-be associate at Jones Day. European Court of Human Rights to Hear Case on Climate Change By Victoria Kline The European Court of Human Rights (ECHR) is hearing a landmark case brought forward by the Senior Women for Climate Protection Switzerland, who are suing the Swiss government (the “State”) for human rights violations related to climate change. Verein KlimaSeniorinnen Schweiz and others v. Switzerland (“KlimaSeniorinnen”) is one of the first climate change matters the court has taken up. On Wednesday, March 29, 2023, the ECHR held a public hearing. History of the Case KlimaSeniorinnen began back in 2016, ignited by a group of women called KlimaSeniorinnen Schweiz, the Senior Women for Climate Protection Switzerland. The group filed suit in Swiss court against a variety of Swiss federal government bodies alleging violations of obligations set forth in the Swiss Constitution and the European Convention on Human Rights (the “Convention”).  The heart of the suit is the State’s shortcomings in progress being made towards the adopted Paris Agreement’s goal to keep “the increase in the global average temperature to well below 2°C above pre-industrial levels.” The elderly plaintiffs purport that their demographic is especially [...]

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Legal Issues With Blockchain in Banking and Fintech: Implementing New Applications | 5.24.2023

April 6th, 2023|Categories: Emerging Issues Webinars, Featured On-Demand, HB Tort Notes, New Webinars, Tort Litigation, Tort Webinars|Tags: , , , , , , |

Legal Issues With Blockchain in Banking and Fintech: Implementing New Applications Leveraging DLT Platforms for Recordkeeping, Payments, KYC, and More; Concerns With Regulation, Privacy, Adaptation DLT is widely considered to be a disruptive force in the banking and financial services industries. Through a decentralized, peer-to-peer networked database, transactions are verified, monitored, and enforced without a third-party intermediary, reducing costs and providing real-time information to network participants. The best known use of blockchain is bitcoin, but banks and fintech companies are using DLT platforms for other purposes, including account records, trading and financial transactions, KYC protocols, and loan and payment processing. DLT is inherently more secure and less susceptible to fraud than centralized platforms, but there are challenges to implementing DLT. Counsel will need an understanding of the technology as well as the legal ramifications of blockchain, including concerns with privacy, integration into existing systems, regulatory uncertainty, and scalability. Listen as our authoritative panel discusses the potential applications of blockchain technology and its advantages over centralized platforms concerning authentication, data security, and cost-efficiency. The panel will also address the legal and logistical issues to consider in implementing DLT. Michael C. Egan Partner Cooley Rebecca J. Simmons Partner Sullivan & Cromwell CLE Live Webinar 90-minute premium CLE video webinar with interactive Q&A Wednesday, May 24, 2023 1:00pm-2:30pm EDT | 10:00am-11:30am [...]

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AI Image Generators and Copyright: Eligibility in the U.S., UK, EU, and More; Fair Use, Derivative Works, Liability

April 6th, 2023|Categories: Emerging Issues Webinars, Featured On-Demand, HB Tort Notes, New Webinars, Tort Litigation, Tort Webinars|Tags: , , , , , , |

AI Image Generators and Copyright: Eligibility in the U.S., UK, EU, and More; Fair Use, Derivative Works, Liability AI programs are now readily available for all. Stability AI, Lensa, and other AI image creation tools create original works of art, raising the question of IP protection for such art. The United States requires human authorship in order to obtain copyright protection, and so far, the U.S. Copyright Office has declined to grant copyright registrations for AI-created works of art based on a lack of human authorship (one of these decisions is being challenged in Thaler v. Perlmutter (D.D.C. filed June 2, 2022)). While some countries take a similar approach to the US, others treat the issue of copyright eligibility for AI-generated art quite differently and provide at least some protection of computer generated works. Questions have also been raised as to whether AI-generated images constitute derivative works and whether such images and the AI generation tools used to create them infringe third-party copyrights, or whether the fair use doctrine or other defenses may apply. The first lawsuits involving image generators have now been filed raising copyright claims in addition to other claims. Listen as our authoritative panel of IP attorneys examines AI image generators and the associated copyright issues. The panel will discuss eligibility in the U.S. and the recent actions by the Copyright [...]

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Contaminated Sites and Long-Term Stewardship: Meeting Obligations for Residual Contamination

April 6th, 2023|Categories: Emerging Issues Webinars, Featured On-Demand, HB Tort Notes, New Webinars, Tort Litigation, Tort Webinars|Tags: , , , , |

Contaminated Sites and Long-Term Stewardship: Meeting Obligations for Residual Contamination Best Practices for Counsel in Implementing, Maintaining, and Enforcing LTS Potential LTS obligations often flow from residual contamination. These obligations frequently center on the vapor intrusion (VI) pathway. VI is the migration of vapor-forming chemicals from any subsurface source into an overlying building. This evolving inhalation "pathway" presents significant challenges and complicates environmental remediation for Brownfield development projects, real estate transactions, and management of commercial/industrial real estate portfolios. The U.S. EPA's national Institutional Control (IC) Policy provides important guidance for investigation and remediation, and ultimately closing, contaminated sites. The IC Policy outlines an approach to help meet potential LTS obligations for managing residual risk and achieve site closure. LTS is an increasing part of cleanup programs to get contaminated properties ready for beneficial reuse. Ongoing monitoring and maintenance (especially for the VI pathway) are needed to ensure continued protection of human health and the environment. Environmental counsel to companies must understand the legal risks from the contaminated sites, when and how to implement LTS, what needs to be done to ensure LTS obligations are met, and the new LTS tools and technologies available to tailor a site-specific approach. Listen as our panel of experts examines LTS and what that includes from a monitoring plan to reporting requirements. The panel will discuss the viability of remedies [...]

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Managing Class Representative Discovery: Plaintiffs’ Strategies for Winning Certification

April 6th, 2023|Categories: Emerging Issues Webinars, Featured On-Demand, HB Tort Notes, New Webinars, Tort Litigation, Tort Webinars|Tags: , , , , , , , , |

Statistics in Class Certification and at Trial: Leveraging and Attacking Statistical Evidence Lessons From Recent Cases on the Use of Statistics to Prove Classwide Liability and Damages Increasingly, statistical evidence is used by both sides to argue the makeup of the class, damages, liability, and certification in every type of case: employment, data breach, ESG, antitrust, consumer product, and commercial class action cases. Economists and practitioners can use statistics to measure the impact on individual members and show where there is no impact.Building on Wal-Mart Stores v. Dukes, Comcast v. Behrend, and Tyson Foods v. Bouaphakeo, the Ninth Circuit Court of Appeal recently explored the use of statistical expert evidence in satisfying relevant requirements under Rule 23(b)(3) in Olean Wholesale Grocery Co-op Inc. v. Bumble Foods L.L.C. and once again shifted the certification landscape.Class action lawyers must be able to analyze both the methodology and inferential process that produce statistical evidence, and their effect on admissibility, relevance, and strength of the resulting evidence.Listen as our experienced panel of practitioners examines the use of statistics in class litigation and the implications of recent case law for class litigators seeking to use or restrict these kinds of evidence during class certification and trial. James Finberg Partner Altshuler Berzon Aphrodite Kokolis Counsel Schiff Hardin ON-Demand CLE Webinar This Strafford production has been specially selected for HB audiences. What are [...]

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Managing Class Representative Discovery: Plaintiffs’ Strategies for Winning Certification

April 4th, 2023|Categories: Emerging Issues Webinars, Featured On-Demand, HB Tort Notes, New Webinars, Tort Litigation, Tort Webinars|Tags: , , , , , , , |

Managing Class Representative Discovery: Plaintiffs' Strategies for Winning Certification Preparing for Discovery Pre-Suit, Negotiating Fair Protocols, Defending Depositions, and Responding To Written Discovery Class representative discovery is an essential component of establishing Rule 23 class certification. Experienced plaintiffs' counsel will need to be well-versed in the many defense strategies for eliciting class representative testimony and discovery that could undermine the claims in a class action lawsuit and challenge class certification. Preparing for discovery begins before the case is filed, and class representatives must thoroughly understand their obligations in the discovery process. Plaintiffs’ counsel must think through and negotiate protocols related to several topics that affect the scope of discovery, including protective orders ESI protocols. Plaintiffs’ counsel must also carefully guide their class representatives through written discovery and depositions, where the class representatives’ responses are critical to the case. Listen as this panel of esteemed class action plaintiffs' lawyers shares strategies on how to best handle class representative discovery and avoid common issues that could present challenges at class certification. David Fernandes Attorney Baron & Budd Phong-Chau G. Nguyen Partner Lieff Cabraser Heimann & Bernstein Now On Demand! Recorded: 4/4/2023  90 Minutes What are the most difficult issues for plaintiffs to navigate during discovery? What protocols are the most important? What types of questioning techniques might be anticipated [...]

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Insurance Coverage for Claims Alleging Breach of Preexisting Duty: Limitations on the Eaton Vance Rule

April 4th, 2023|Categories: Emerging Issues Webinars, Featured On-Demand, HB Tort Notes, New Webinars, Tort Litigation, Tort Webinars|Tags: , , , , , , , |

Insurance Coverage for Claims Alleging Breach of Preexisting Duty: Limitations on the Eaton Vance Rule Determining the Source of the Insureds Obligation to Pay an Underlying Claim Liability insurance covers, among other things, an insured’s legal obligation to pay damages to a third party arising out of a claim against the insured for breach of a duty owed to that third party. But what if the damages the insured becomes liable to pay – whether by settlement or court order after a judgment – constitute nothing more than amounts the insured already had a pre-existing contractual or statutory duty to pay, irrespective of whether any claim had been made alleging a breach? This latter category of damages is generally not covered by liability insurance because the insured’s obligation to pay does not result from the third-party “claim”; rather, it results from the pre-existing contractual or statutory obligation. The distinction between covered and non-covered damages for breach of a pre-existing duty is often difficult to see and even harder to explain coherently, for attorneys and judges alike. A significant body of confusing – and sometimes inaccurate, contradictory, and inartfully worded – case law has developed on these issues. Relying on these cases, it is now relatively common for insurers to look for every opportunity to disclaim indemnity coverage for any claim seeking damages based [...]

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Greenhouse Gases Cited in Suit to Invalidate Drilling Leases

April 2nd, 2023|Categories: HB Risk Notes|Tags: , , , , , , , , , , , , , |

Environmentalists Argue Federal Government Failed to Analyze Social Costs of Fossil Fuel Emissions from Drilling Leases “Federal public lands used for fossil fuel extraction contribute 24% of the United States’ Greenhouse Emissions,” according to 10 environmental groups in their ongoing lawsuit against the U.S. Department of the Interior, Secretary of the Interior Debra Haaland, the Bureau of Land Management (BoLM), and BoLM Director Tracy Stone-Manning (Dakota Resource or Council, et al, v. U.S. Department of the Interior, et al., D. D.C., No. 1:22-cv-1853 ). Their lawsuit seeks to invalidate 173 oil and gas leases approved in June 2022 across eight states:  Colorado, Montana, Nevada, New Mexico, North Dakota, Oklahoma, and Utah, and Wyoming.  Plaintiffs include: Dakota Resource Center, Center for Biological Diversity, Citizens for a Healthy Community, Living Rivers & Colorado Riverkeeper, Montana Environmental Information Center, Rio Grande Waterkeeper, Sierra Club, Waterkeeper Alliance, Western Waterheads Project, and WildEarth Guardians. The environmental groups argue the BoLM is in violation of the National Environmental Policy Act (NEPA) 42 U.S.C. § 4321, for failing to make efforts to prevent or eliminate damage to the environment and biosphere. The groups also argue that Secretary Haaland failed to follow the instructions of the Federal Land Policy and Management Act (FLPMA) 43 U.S.C. § 1701, which requires her office to “take any action necessary to prevent [...]

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Conservationists Try Again to Block Drilling in Alaska’s Western Arctic

April 1st, 2023|Categories: HB Risk Notes|Tags: , , , , , , , , , , , |

Willow II: Conservation Groups Sue Again to Stop Oil Project in Alaska’s Western Arctic Several conservation groups filed a lawsuit in the U.S. District Court for the District of Alaska against the federal government in another effort to halt the Willow Master Development Plan (Willow Oil Project), a proposed oil and gas development in Alaska’s Western Arctic. Spearheading the development is ConocoPhillips Alaska Incorporated. The project was approved for a second time by the Biden Administration only a day before the filing of the plaintiffs’ complaint. The Willow Oil Project The Willow Oil Project is a multi-billion dollar project that would involve the construction of drilling pads, pipelines, and other infrastructure in the National Petroleum Reserve-Alaska (Reserve). The project involves drilling up to 250 wells for the purpose of generating 586 million barrels of oil within its 30-year lifespan. As a direct result of the activity, roughly 258 million metric tons of greenhouse gas emissions would be released into the atmosphere. The project has been controversial due to concerns over its potential impacts on the environment and wildlife in the area. Willow II Case History ConocoPhillips first proposed the Willow Oil Project to the Bureau of Land Management (BoLM) in May of 2018. After determining that the project was a major federally-involved action that would significantly affect the [...]

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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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