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 [...]

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 [...]

Responding to Time-Limited Demands for Policy Limits: Reasonableness, Safe Harbors; Obtaining Summary Judgment A time limited policy limits demand to a defendant's insurer is a frequent tool used by plaintiff's lawyers in an attempt to force crucial decisions on limited information. They have the capacity to force crucial decisions, sometimes with limited information and with very little time to decide. Bad faith liability can arise from the improper rejection or non-payment of a time-limited demand, often without showing intentional wrongdoing or motive.What constitutes a valid demand that triggers the obligation to respond and what constitutes a proper response has generated a broad body of case law. Statutory or judge-made "safe harbors" may allow a range of responses, but these rules can be narrowly construed and easily misinterpreted.If a bad faith claim is filed, the reasonableness standards that apply in a time-limited demand situation make summary judgment challenging but by no means impossible, as demonstrated by recent decisions in key jurisdictions.Listen as this experienced panel of insurance attorneys guides counsel through responding to time-limited demands and offers a roadmap to summary judgment if a bad faith case is filed. Outline Essential elements of a policy-limit, time-limit demand Standards for evaluation of time-limited demands Statutory Common law Covered vs. uncovered claims Safe harbors Roadmap to summary judgment if bad faith alleged [...]

Corporate Officer and Director Liability: Trend Toward Increased Exposure for Individual D&Os D&Os owe statutory and common law duties to shareholders, including fiduciary duties of care and loyalty. As long as they take reasonable steps to inform themselves and discharge their duties, D&Os are supposed to be protected by the business judgment rule. But this protection is not absolute, and even allegations of violations or breaches of fiduciary duties can lead to an expensive, time-consuming lawsuit with potentially devastating personal liability for directors, officers, and LLC managers. Our panel of experienced litigators from Williams & Connolly LLP and Gilbert LLP will discuss lessons learned from recent actions by federal and state regulators to hold individual D&Os liable for corporate misconduct. In addition, the panel will address recent cases where courts have made it easier to sue directors or officers in their individual capacities. The CLE will provide practical guidance on how to mitigate personal liability and fund the defense of individuals, including indemnification provisions and D&O insurance, without waiving privilege. Outline Director and officer liability Fiduciary duties Business Judgment Rule: statute/common law Limitations at the MTD stage Exposures Damages Disgorgement Penalties Recent efforts to impose liability on individual D&Os Government enforcement action DOJ SEC Other regulators Individual shareholder actions Direct shareholder actions Derivative shareholder actions Mitigating personal liability Indemnification [...]

One Insured, Multiple Insurers, Multiple Lawsuits: Managing Liability, Settlements, and Coverage Issues Seemingly intractable problems can arise when a single defendant has been sued multiple times and may have coverage for some or all matters from multiple insurers. Often there is considerable debate over the defendant's liability and insurers' duty to defend claims and in which courts. Subrogation and indemnity considerations often permeate negotiations.Efforts to resolve underlying matters, whether by settlement or otherwise, are complex and require advanced strategies to prevent misunderstanding and insurers from working at cross purposes. Insurers must often convince plaintiffs in the litigation and their fellow insurers about the reasonable value of various claims. Insurers must always be ready with strategies when an insurer refuses to fund a judgment or settlement. Listen as this esteemed panel of seasoned insurance counsel guides attendees in managing coverage, liability, and settlement issues that arise when a single policyholder is sued multiple times and has been insured by numerous insurers over time. Outline Overview Duty to defend and defense costs Duty to settle, mediation, and insurer consent Duty to indemnify: managing the unwilling insurer Subrogation issues Recorded on Wednesday, October 12th, 2022 $297* This Strafford production has been specially selected for HB audiences. Kim M. Jackson Partner Bovis Kyle Burch & Medlin Paul R. Koepff Partner [...]

The Reverse Reptile: Rethinking Traditional Defense Strategies and Antidotes Photo by Jeremy McGilvrey on Unsplash "Reptile theory" is a challenging and often-discussed plaintiff's trial strategy. It subtly encourages jurors to envision themselves in the same situation as a plaintiff but with the power to "save" the plaintiff, themselves, and the community from future harm by awarding a large verdict. Much has been written and discussed about oral defenses against reptile strategy, such as during depositions and witness examinations, as well as during opening and closing. But there are also powerful tools and strategies that can be wielded in defense of this strategy: counter anchoring numbers on damages, humanizing the corporate defendant, motions in limine, trial briefs, and motions for new trial/judgment notwithstanding the verdict, among others. Knowing these strategies and how to present them, including drafting these motions and briefs carefully and precisely allows defense counsel to neutralize common arguments from plaintiffs. By establishing that specific questions and evidence are part of the reptile strategy, defense counsel can counter the plaintiff counsel’s moves at every turn and prevent the reptiles bite. Listen as this panel of experienced trial attorneys explains how effectively written papers can augment other anti-reptile defenses and how counsel can draft winning papers. This Strafford production has been specially selected for HB audiences. Regular Price: $197* [...]

PFAS Contamination: Current Regulatory Landscape and Science Over the past 18 months, U.S. EPA and the Biden Administration have issued numerous new regulations of PFAS under CERCLA, the Clean Water Act, the Safe Drinking Water Act, the Toxic Substances Control Act, and other environmental statutes.In recent months, the U.S. EPA has issued significant new toxicity assessments and drinking water regulations for PFAS, including PFOA, PFOS, GenX, and PFBS. U.S. EPA also has taken steps to regulate PFOS and PFOA as hazardous substances under CERCLA. State regulators are also imposing new drinking water limits, cleanup standards, and testing requirements for PFAS. The U.S. EPA and a number of states are planning to issue numerous additional regulations of PFAS over the next few years.Listen as our authoritative panel examines the evolving federal and state regulatory landscape for PFAS. The group will discuss current scientific data on PFAS, including a review of the basis on which regulatory standards are developed, opportunities and challenges to determining the source of PFAS contamination (forensic analysis), business sectors, and regions where PFAS is or may soon be a regulatory focus, and new regulations and ongoing litigation.The panel will offer insight into the legal risks facing companies using and discharging PFAS in manufacturing, companies distributing or selling products containing PFAS, and companies and municipalities responding to PFAS contamination in groundwater, drinking water, [...]

Nursing Home Injury Litigation: Common Claims, Medical Records and Damages Assessment Photo by Irwan iwe on Unsplash Counsel bringing nursing home injury claims must understand the statutory, regulatory, and established common law standards of care applicable to nursing home residents and governing patient care. The most common nursing home injuries--pressure sores, severe malnutrition or dehydration, physical and chemical restraints, elopement, falls, improper medication, and abuse--involve different approaches. Medical records, discovery, and damage assessment present unique challenges to counsel. Listen as our authoritative panel of practitioners provides an overview of nursing home laws and regulations, discusses common types of injuries, covers how to handle medical records and other discovery issues unique to these cases, and reviews how to assess damages.   Subjects What are the key steps to develop a claim involving injury to a nursing home resident?What evidentiary and discovery challenges are present in nursing home injury claims–and how can counsel best address them?What is the role of pain and suffering claims in the assessment of damages? Outline Relevant laws and regulations Common types of injuries Discovery issues Reviewing medical records Assessing damages Corporate involvement Recorded: 10/18/2022 Regular price: $197* This Strafford production has been specially selected for HB audiences. Craig C. Conley Shareholder Baker Donelson Bearman Caldwell & Berkowitz Jaime [...]

Discovery on Discovery: Disputes About a Litigant's Efforts to Search for, Locate, Preserve, and Collect Responsive ESI Much is written about the expectation of cooperation between parties in litigation. And while cooperation is required in the discovery context, litigants have no transparency requirement on how they respond to discovery requests. Counsel should be vigilant in recognizing improper attempts by another party to extend the concept of discovery by demanding transparency.Most courts will not permit discovery on discovery in the absence of a showing that the responding party acted in bad faith or unlawfully withheld documents. Indeed, courts have routinely denied requests for discovery on discovery based on the requesting party's "mere speculation" that the responding party has acted improperly in responding to discovery.A requesting party may support a request for discovery on discovery by demonstrating an adequate factual basis, including inconsistencies with the responding party's production, deposition testimony establishing the failure of a party to implement a litigation hold promptly, and the absence of documents from key custodians and date ranges in a discovery production.Listen as this experienced panel of litigators addresses discovery on discovery and discusses how to prevent discovery on discovery from derailing the merits of the case, as well as the offensive use of discovery on discovery in potential motions for sanctions under Federal Rule of Civil Procedure 37(e) or state [...]