Beyond Predominance: Alternative Arguments Against Class Certification

June 28th, 2023|Categories: Emerging Issues Webinars, Featured On-Demand, HB Tort Notes, New Webinars, Tort Litigation, Tort Webinars|Tags: , , , , , , , , , |

Beyond Predominance: Alternative Arguments Against Class Certification Leverage the Latest Court Decisions to Challenge Class Membership and Defeat Certification. Class certification proceedings often focus on whether common issues predominate over individual issues. Recent decisions, however, highlight the importance of raising arguments beyond those afforded by Rule 23(b)(3)--including arguments arising from other subsections of Rule 23 and those originating in the case law. Join our panel as they discuss recent developments concerning several such avenues for defending against certification, including: Ascertainability. Ascertainability demands that class action plaintiffs present a mechanism for identifying prospective class members before the class is certified. Panelists will explain the federal circuit split on ascertainability issues, discuss recent decisions denying class certification on this ground, and provide insight regarding which arguments seem to be well received in different jurisdictions. Typicality and adequacy. Rule 23(a)'s typicality and adequacy requirements prevent certification if the claims of the named plaintiff(s) are subject to unique defenses not applicable to the class as a whole. Panelists will discuss recent case law in which class action defendants have used these requirements to their advantage and provide litigation strategies for setting up such arguments on class certification. Article III standing. Our panel will discuss the different approaches to applying Ramirez v. TransUnion L.L.C. and Spokeo v. Robins and consider the avenues available to challenge class certification on Article [...]

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 [...]

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 [...]

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 [...]

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 [...]

How Insurance Companies Defraud Their Policyholders, and What Courts and Legislators Should Do About It

March 14th, 2023|Categories: Emerging Litigation & Risk, HB Emerging Law Notes, Journal on Emerging Issues in Litigation, New Featured Post for Home Page|Tags: , , , , , , , , , , , , |

The Authors Robert D. Chesler (rchesler@andersonkill.com) is a shareholder in Anderson Kill's Newark office. Bob represents policyholders in a broad variety of coverage claims against their insurers and advises companies with respect to their insurance programs. Bob is also a member of Anderson Kill's Cyber Insurance Recovery group. Bob has served as the attorney of record in more than 30 reported insurance decisions, representing clients including General Electric, Ingersoll-Rand, Westinghouse, Schering, Chrysler, and Unilever, as well as many small businesses including gas stations and dry cleaners. He has received numerous professional accolades, including a top-tier ranking for Insurance Litigation: New Jersey in Chambers USA: American's Leading Lawyers for Business, which dubs him a "dominant force in coverage disputes" and cites a client who calls him "a dean of the insurance Bar; one of the brightest in writing about and analyzing insurance coverage." Amy Weiss (aweiss@andersonkill.com) is a law clerk pending admission in Anderson Kill’s New York office. She focuses her practice on insurance recovery, exclusively on behalf of policyholders. While attending the Benjamin N. Cardozo School of Law, Amy worked as a Summer Associate at Anderson Kill and a Judicial Intern for the Honorable Nicholas G. Garaufis at the United States District Court for the Eastern District of New York. She served as Senior Articles Editor for the Cardozo [...]

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 [...]

Maximizing Insurance as Climate Change Intensifies

August 14th, 2022|Categories: Emerging Issues Webinars, Emerging Litigation & Risk, Emerging-On-Demand-CLE, Featured On-Demand, Torts-On-Demand-CLE|Tags: , , , , , , , , |

HB presents an Anderson Kill webinar on-demand MAXIMIZING INSURANCE RECOVERY AS CLIMATE CHANGE INTENSIFIES As weather-induced disasters continue to intensify, maximizing insurance coverage after major storms, floods, wildfires, and other natural cataclysms is an essential survival skill for any business. In this session, attorneys who have successfully litigated property, business interruption and contingent business interruption claims from Hurricanes Katrina through Ida, along with wildfire and other major disaster claims, walk participants through all phases of insurance recovery, from buying the right policies to pursuing claims with persistence and awareness of pitfalls, to litigating successfully when necessary. Specific lessons from Hurricanes Sandy (2012), Harvey (2017) and Maria and Irma (2020) will be addressed. Topics: Developing a pre-storm preparedness plan, including mitigation efforts, assembly of a claims team, and insurance coverage review; Moving quickly to protect property from further damage, performing all emergency repairs, and documenting all losses in detail; Preparing and presenting well-supported property damage claims; Recognizing and including business interruption losses and extra expense outlays; Highlighting policy interpretation issues that affect the scope of available coverage; Outlining strategies for pursuing claims and incentivizing the insurance company to resolve them with due speed. On-Demand Registration Includes 1+ CLE credits (subject to bar rules). CLE codes are embedded in the video. CLE questions? [...]

Asymmetrical Combat: Bad Faith Liability in Insurance Recovery Cases

June 14th, 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 William G. Passannante is co-chair of Anderson Kill’s Insurance Recovery Group and is a nationally recognized authority on policyholder insurance recovery in D&O, E&O, asbestos, environmental, property, food-borne illness, and other insurance disputes, with an emphasis on insurance recovery for corporate policyholders and educational and governmental institutions. 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. Asymmetrical Combat: Bad Faith Liability in Insurance Recovery Cases "Insurance policies are a unique product that requires the policyholder perform first—by paying insurance premiums—while the insurance company’s performance—the payment of the claim amount—is delayed until the insurance company determines to do so." Abstract: Policyholder counsel see claims that an insurer violated its duty of good faith and fair dealing is an essential tool in leveling the playing field in policyholder–insurer disputes, especially in high-stakes litigation. Insurance companies write the policies, employ lobbyists, exchange information with each other, and, of course, have more experience handling claims. So, the author writes, bad faith allegations bring more balance to the relationship and provide a disincentive to “the profitable breach of the insurance promise.” He discusses above-policy limits risks for insurers, as well as attorneys’ fees, interest on unpaid [...]

Taking the High Ground: Where Cannabis Insurance Litigation Is Trending (and Why)

May 23rd, 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 John B. McDonald is an experienced litigator practicing in the Seattle and New York offices of Harris Bricken, where he represents clients in complex commercial, insurance, and partnership matters. Jihee Ahn is an experienced complex commercial litigator with Harris Bricken. She also chairs the firm’s Dispute Resolution/Litigation practice. 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. Taking the High Ground:  Where Cannabis Insurance Litigation Is Trending (and Why) "Absent a choice of law provision, the location where most of the insured activity took place will likely dictate which law applies. But how have federal courts reacted to applying cannabis-friendly state law in a forum where federal law arguably addresses underlying state concerns? The answer is: inconsistently." Abstract: The use and possession of cannabis remains illegal under the federal Controlled Substances Act. But a patchwork of state laws is bringing the country closer to some form of legalization. Some states allow its use for medical purposes, others have made it legal for recreational purposes, and others have decriminalized it. But when cannabis is involved in disputes that lead to litigation, and that litigation leads to policyholder–insurer disputes, that state law [...]

Insurance Coverage for PFAS Claims

April 4th, 2022|Categories: ELP, Emerging Litigation & Risk, HB Emerging Law Notes, HB Tort Notes, Tort Litigation|Tags: , , , , , , , , , , |

PFAS Insurance Coverage with Robert D. Chesler of Anderson Kill Listen to my interview with Anderson Kill's Robert D. Chesler, a preeminent expert on insurance coverage law especially in the context of highly complex long-tail claims scenarios involving multiple parties and events that can span decades and always cost many millions of dollars.  Considered by many to be an insurance guru on these cases -- as well as on D&O, cyber and privacy, and intellectual property insurance -- Bob holds a Ph.D. and masters degree from Princeton University, and a J.D. (cum laude) from Harvard Law School. This podcast is the audio companion to the Journal on Emerging Issues in Litigation, and Bob is one of our most valued editorial advisors. 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, or want to tell me how much  you learned from Bob,  please drop me a note at Editor@LitigationConferences.com. Tom Hagy Host and Litigation Enthusiast P.S. The fact that I make myself laugh during these interviews probably has less to do with the subject matter (most definitely, is more precise) or my sense of humor, and [...]

Strategies for Maximizing Insurance Recovery for Climate Change–Related Loss and Damage

October 26th, 2021|Categories: HB Emerging Law Notes, HB Tort Notes, Journal on Emerging Issues in Litigation|Tags: , , , |

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.

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