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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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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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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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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Rule 23(c)(5) Subclasses: Certification, Due Process, Adequate Representation, and Settlement

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

Rule 23(c)(5) Subclasses: Certification, Due Process, Adequate Representation, and Settlement Plaintiffs can define and propose subclasses to address unique issues or to resolve potential intra-class conflicts of interest. Counsel opposing certification will want to emphasize the intra-class conflict as reason to deny certification and show how subclasses render class treatment unmanageable.Due process requires adequacy of representation for all class members, including subclasses. Circuit courts have overturned settlements if they see conflicts of interest among subclasses and the failure of class counsel to ensure independent representation of subclasses.Listen as this experienced panel of class action litigators guides both plaintiff and defense counsel through the effective use of subclasses to resolve the case. Outline Statutory basis of subclasses Types of cases and issues best suited for subclasses Resolving conflicts of interest among subclasses A Strafford production specially selected for HB audiences. Wystan Ackerman Partner Robinson & Cole James Francis Co-Founder Francis Mailman Soumilas Kristen Simplicio Partner Tycko & Zavareei The panel will review these and other key issues: What are the tell-tale signs that a subclass is needed or required? When can subclasses be created? Can there be subclasses within subclasses or is predominance destroyed? What are the due process concerns with subclasses and subclass representation? What should defense counsel consider when deciding whether to oppose certification of [...]

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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.”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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