FDCC ARTICLE OF THE MONTH
The FDCC promotes scholarship among its members to benefit the defense community. At each of our semi-annual meetings, over twenty papers and programs are presented on a wide range of legal topics. In addition, for over half a century, FDCC members have published law review style articles in the Federation of Defense & Corporate Counsel Quarterly.
This month's featured article by...
“Game on! The Players and Carriers versus the NFL” was presented to a combined section presentation of Extra-Contractual Liability, Appellate, Life, Health & Disability, and Professional Liability Sections at the 2013 Winter meeting in San Antonio, by Samuel D. Carucci, Allied World Assurance Company, New York, NY; John S. Wilkerson, III, Turner, Padget, Graham & Laney, PA, Charleston, SC; Heidi G. Goebel, Christensen & Jensen, PC, Salt Lake City, UT; and Stacy A. Broman, Meagher & Geer, PLLP, Minneapolis, MN. This is a timely article about the litigation that has appeared in response to concussion injuries at all levels of football, from high school to the NFL. The authors give an excellent account of the substantive and procedural aspects of the NFL litigation, now consolidated in an MDL in Pennsylvania,as well as related coverage litigation between the NFL and its insurers.
Marisa Trasatti, Semmes, Bowen & Semmes, Baltimore, MD, and Jeffrey Pilkington, Davis Graham & Stubbs LLP, Denver, CO, presented a timely program at the 2012 Annual Meeting in Whistler, British Columbia, Canada, to the Drug, Device and Biotechnology sections entitled "Defending Products Liability Suits Involving Off-Label Use." As the program title indicates, the program focused on the rapidly changing law regarding the practice of many physicians to prescribe medications to treat diseases other than those for which the medication is approved.
Robert L. Christie, Christie Law Group, PLLC, Seattle, WA, Todd Raskin, Mazanec, Raskin & Ryder Co., LPA, Cleveland, OH, and Kile T. Turner - Norman Wood Kendrick & Turner, Birmingham, AL, raised the bar for section presentations at the 2012 Annual Meeting in Whistler, British Columbia, Canada, with a program entitled "The Art of Presentation in the World of the Short Attention Span." This program was truly a state-of-the-art presentation of courtroom demonstrative evidence, prepared and presented entirely using an iPad. In addition to the fine content of the program, the speakers gave a tutorial in how to use technology in the courtroom.
Elizabeth F. Lorell, Gordon & Rees LLP, Florham Park, NJ and Terence M. Ridley, Wheeler Trigg O'Donnell LLP, Denver, CO, and Michele Ballard Miller, Miller Law Group, San Francisco, CA, wrote a paper entitled "Class Action Litigation: One Year After Dukes vs. Wal-Mart: A Happy Anniversary?" and presented it along with John M. Intondi, AXIS Insurance, Alpharetta, GA, Marie Y. Burdett, GEICO Insurance Co., Chevy Chase, MD, and Jeanette Dixon, AIG, New York, NY, at the 2012 Annual Meeting in Whistler, British Columbia, Canada. This program follows subsequent judicial developments afterthe landmark class action decision by the United States Supreme Court that decertified a class of 1.5 million present and former Wal-Mart employees in a massive discrimination case.
Gerald B. Kline - Sims Moss Kline & Davis, LLP; Jennifer E. Johnsen - Gallivan White & Boyd, PA; and Serge J. Adam - Monitor Liability Managers, LLC, presented a program at the 2012 Winter Meeting in Phoenix, AZ, entitled “Officer/Director Indemnification Law: A Panoramic View”. The article accompanying the presentation is an extensive review of the law related to officer/director indemnification rights. The article examines statutory bases for indemnification, both mandatory and permissive, and highlights key litigation issues pertaining to the indemnification rights of corporate officers and directors.
Ramiro Morales, Morales Fierro & Reeves, Pleasant Hill, CA, and Roy F. Hughes, Hughes & LaFountaine, Honolulu, HI, presented a paper at the 2011 Annual meeting in Williamsburg, VA, entitled “Additional Insured Endorsements in a Construction Defect Context.” Written from the perspective of the general contractor, this paper deals with the issue of whether “additional insured” clauses in subcontractor liability policies actually provide the protection that the general contractor expects to obtain from the endorsement to the sub’s policy. The paper reviews some typical endorsement language and surveys court cases dealing with the issue.
Robert D. Phillips, Jr., Reed Smith LLP, San Francisco, CA, presented a paper entitled “The Role of Protective Orders in Class Actions” to the Class Action Section at the 2011 Annual Meeting in Williamsburg, VA. This paper addresses the need for protective orders in class actions where the defendant maintains trade secrets, other confidential research, development, or commercial information, or sensitive business information that should not be disclosed to the public. Also in some class actions, the defendant may possess information on class members that should be protected from improper disclosure such as financial, medical, or health information, or personal identification information like zip codes. Before cases such as these proceed into meaningful discovery a customized protective order to govern the treatment and disclosure of such confidential information is required. This paper deals with this subject in detail.
At the 2011 Annual Meeting in Williamsburg, VA, Carlos F. Concepcion, Concepcion, Martinez & Bellido, Carol Gables, FL, chaired a panel of FDCC International law experts to discuss the practice of "International Arbitration" of business disputes. With the rapid growth and expansion of the world financial and business communities, it is increasingly important for businesses to have an established method of resolving business disputes quickly, efficiently and constructively. When disputes arise in the course of business, parties often prefer to settle them privately and informally, in a businesslike fashion that will enable them to maintain their business relationship. It is not surprising, therefore, that the use of international arbitration to resolve cross-border disputes has received massive backing from international businesses, wary of seeking redress in the national courts. This paper deals with some of the practical issues involved in representing clients in the formation of international arbitration agreements and in handling the arbitration disputes when they arrive.
Alan S. Brown, Frost Brown Todd, LLC, Indianapolis, IN, presented a paper to the Commercial Litigation, Financial Institutions, and Professional Liability Sections at the 2011 Annual Meeting in Williamsburg, VA, entitled “Robosigners and Reforms in the Residential Mortgage Servicing Industry.” This highly topical paper deals with the on-going problem of home mortgage financing and foreclosure when the lender’s paperwork is not completely accurate. The paper offers this interesting summary of how the legal morass began: Given the volume of bad loans, it should have surprised no one that not all “t’s” were crossed or all “i's” dotted in the foreclosure process. These procedural shortcomings gained little traction until a Florida consumer lawyer deposed a GMAC mortgage processor, Jeffrey Stephan, as part of a defensive effort to stall foreclosure proceedings against Boca Raton homeowners. In his deposition, Mr. Stephan testified that he regularly signed more than 10,000 affidavits a month, affirming in each that the information was both accurate and within his personal knowledge. Mr. Stephan acknowledged the obvious in his testimony: that he could not have had personal knowledge of the facts in each case. With this testimony, Mr. Stephan earned the pejorative moniker “Robosigner.” This article provides comprehensive guidance regarding the technical problems created for lending institutions by the mistakes in their loan and security documents.
Jean M. Lawler, Murchison & Cumming, LLP, Los Angeles, CA, presented a paper at the 2011 Annual Meeting in Williamsburg, VA, entitled “Indemnity Agreements & California’s Crawford Decision: Its Implications and Strategies for Defense.” Presented at the Construction Section meeting, this paper addresses the development of indemnity issues in California in the three years since the Crawford decision by the California Supreme Court. In Crawford the court determined that the indemnity provisions of a contract obligated the indemnitor to begin paying the defense costs of the indemnitee at the outset of a lawsuit, prior to the time that it could be determined whether or not there would be liability imposed on the indemnitee because of the negligence of the indemnitor. The paper deals in very practical terms with the complicated issues created by the Crawford decision and offers guidance for litigants faces with indemnity obligations in California.
Rebecca Levy-Sachs, Robinson & Cole LLP, Sarasota, FL and Gregory P. Varga, Robinson & Cole LLP, Hartford, CT, made a presentation at the 2011 Annual meeting in Colonial Williamsburg, VA, that was appropriate to the location. Their paper, titled “Repairing National Treasures -- Overview of Issues Involved in Repair of Historic Buildings,” presented at the Property Insurance Section meeting, concerns the unique insurance issues arising out of the restoration and insuring of historic buildings. The article provides interesting facts about the preservation efforts at Colonial Williamsburg and offers valuable insight into the unique issues related to restoration of buildings that are listed on registries of historic buildings. Finally, the article gives an in-depth analysis of insurance issues that relate to historic structures.
Anita G. Fox, Fraser Trebilcock Davis & Dunlap, PC, Lansing, MI, presented a paper titled "Damage Allocation between Additional Insured Insurers and Direct Insurers" to the Construction Section at the 2011 Annual Meeting in Williamsburg, VA. This paper examines the interaction between insurance policy language and contract language between general and sub-contractors. When the general contractor is sued for a potentially covered claim, the issue often arises as to which policy responds first, the general contractor's own primary liability policy or the sub-contractor's policy under which the general contractor is an additional insured. This article examines the interplay between the two, often conflicting, contract documents.
Peter S. Doody, Higgs, Fletcher & Mack, San Diego, CA and long-time FDCC sponsor, Thomas Oakes, Thomas G. Oakes & Associates, Philadelphia, PA, presented a paper to a joint meeting of the Trial Tactics, Products Liability, Intellectual Property, and Management, Economics & Technology Sections at the 2011 Annual Meeting in Williamsburg, VA, titled “High Tech Evidence and Mortar Foundations.” This paper accompanied a presentation of computerized trial techniques with essential information concerning how to lay the foundation for admission of computerized evidence such as animations and video recreations.
Mary Hulett, Ragsdale Liggett PLLC, Raleigh, NC, and Frank H. Gassler, Banker Lopez Gassler, PA, Tampa, FL, presented a paper at the 2011 Annual Meeting in Williamsburg titled "Professional Malpractice and Economic Loss: Why Choice of Law Really Does Matter." This article accompanying the presentation prepared by Ms. Hulett and Amie C. Savon of her firm summarizes the three main bases for establishing professional liability for misrepresentation in the the course of providing professional services (privity of contract, foreseeability of harm, justified reliance) and discusses the various theories that support choice of law decisions. The article goes on to detail how choice of law issues may ultimately affect the substantive claim that a plaintiff can bring and the damages recoverable for the claim.
Andrew B. Downs, Bullivant Houser Bailey, PC, San Francisco, CA, presented a paper at the 2011 Annual Meeting in Williamsburg, titled "Enforcing Policy Conditions and Warranties in a Hostile Environment." This article focuses on the often difficult problem of enforcing policy terms and endorsements written into manuscript policies. Such policy language does not always have the thorough review and analysis that accompaines policy language included in regulator-approved policies. Therefore, there is more opportunity for policy language that is inconsistent with other policy provisions or lacks essential terms. The article identifies common drafting problems and highlights strategies for the enforcement of policy language that is imperfect.
David R. Erickson, Shook, Hardy & Bacon, Kansas City, MO, presented a program at the 2011 Winter Meeting in Indian Wells, CA, on behalf of the Toxic Tort and Environmental Law Section entitled "Responding to a Mass Environmental Disaster". The focus of the presentation, which included participation by in-house counsel from Lockheed Martin Corporation and Columbian Chemicals Company, was on the interaction between in-house and outside counsel in the response to and management of mass environmental disasters. This program was particularly timely in light of the recent oil spill in the Gulf of Mexico.
David A. Bertschi, Bertschi Orth Smith LLP, Ottawa,Ontario, Canada, presented a paper at the 2011 Winter Meeting in Indian Wells, CA, on behalf of the International Practice of Law and Toxic Tort and Environmental Law Sections entitled "Slick Transactions: Canadian Law, and the North American Free Trade Agreement; Can Oil, Gas,and Water Between Canada and the US Really Mix?" David's article is an incisive look at the benefits to both Canada and the US from the North American Free Trade Agreement and provides a thorough analysis of the significance of trade between the countries in oil, gas, and other natural resources.
The Alternative Dispute Resolution, Civil Rights and Public Entity Liability, and Employment Practices and Workplace Liability Sections presented a program at the 2011 Winter Meeting in Indian Wells, CA, entitled "The Hidden Dangers in Employment." This thought-provoking program, paneled by Mercedes Colwin, Elizabeth Lorell, and Michele Ballard Miller, focused on the current trends in employment litigation, including such current topics as social media, texting, tweeting, and other forms of electronic communication.
The Insurance Coverage, Construction, and Property Insurance Sections presented a program at the 2011 Winter Meeting, in Indian Wells, California, entitled "Green Construction & LEED-A Primer for Counsel". This panel discussion, led by Ned Currie, Joanne Blackburn, and Rebecca Levy-Sachs provided insight into the significance of "Green" construction and the possibilities for liability insurance coverage, claims against design and construction professionals, and property claims. In addition, the materials provide a convenient primer on the basics of "Green" construction.
Allison O. Van Laningham, Smith Moore Leatherwood LLP, Greensboro, NC, made a presentation at the 2011 Winter Meeting in conjuction with a program entitled "Alternative Fee Arrangements: Will The Recession Compel A Move From The Billable Hour?" Allison's paper, prepared for the presentation, deals with ethical issues that may arise when law firms make alternate fee arrangements with their cllients.
This month's article was presented by Brett Preston, Hill Ward Henderson, Tampa, FL; Casey Reeder, Hill Ward Henderson, Tampa, FL; Marc Harwell, Leitner Williams Dooley & Napolitan, Chattanooga, TN; and Joe Fasi, Gonzales Saggio & Harlan, LLP, Milwaukee, WI at the 2011 Winter Meeting. The presentation provided a fascinating review of social networking, giving consideration to both the opportunities provided to lawyers to promote their practices as well as the pitfalls that social networking presents to employers. [Social Media Presentation]
Richards H. Ford of Wicker, Smith, O'Hara, McCoy, & Ford, PA, Orlando Florida, presented a paper on negligent security as a aspect of property owner liability. This paper was part of a presentation at the 2011 Winter Meeting by the Premise Liability section entitled "Who Pays for Crime? Defending the Property Owner in Negligent Security Claims".
This month's article, featured in a recent copy of the FDCC Quarterly, is by Leslie O'Toole of Ellis & Winters, LLP of Raleigh, NC. The article, entitled "Admitting That We're Litigating in the Digital Age: A Practical Overview of Issues of Admissibility in the Technological Courtroom" demonstrates how the introduction of technology is transforming the process of litigation.
This month's featured article is entitled "Strip Search Exposure for the Public Entity",by Latha Raghavan,a partner in the Albany, New York office of Goldberg Segalla LLP. Latha presented her article at the 2007 Annual Meeting, detailing the potential liability issues facing municipalities on account of strip search policies and practices in detention facilities.
"A Lawyer's Risk Management Program: 60 Tips in 59 Minutes" was a joint presentation by the Management, Economics & Technology of Practice and the Professional Liability Sections at the 2010 Winter Meeting. This paper is a convenient summary of the many facets of law firm risk and ways to manage that risk.
Jennifer E. Johnsen of Gallivan, White & Boyd in Greenville, SC and Thayla Bohn, Oklahoma City, OK presented a comprehensive program on healthcare reform at the 2010 Winter Meeting. Their paper Health Care Reform" is a good source for the history of healthcare legislation leading up to the passage of the healthcare reform bill last year.
Howard A. Merten and Paul M. Kessimian of Partridge Snow & Hahn LLP, Providence, Rhode Island, presented a paper at the 2010 meeting titled "The Pitfalls, Opportunities and Potential Landmines Presented by Federal Rule 30(b)(6)." This article is an excellent source of information about the 30(b)(6) deposition.
This month we feature an article by Marc H. Harwell, Leitner, Williams, Dooley & Napolitan, PLLC, Chattanooga, TN, presented at the 2010 Winter Meeting in Orlando. In his article "Effective and Efficient Management of Your Expert" Marc discusses ways to use experts in a less than catastrophic case.
The featured article this month is "Nanotechnology: Something So Little Should Not Be Allowed To Get Too Big!" by Thomas F. Segalla and Joseph M. Hanna of Goldberg Segalla LLP, Buffalo, New York. This article discusses issues related to risk associated with the development of nanotechnologies and is a good source of information on this emerging technology and the response of the insurance industry to it.
The featured article this month is by John C. Trimble, Lewis Wagner, LLP, Indianapolis, IN, presented at the 2010 Winter Meeting in Orlando. John's article entitled "Avoiding & Dealing with Pessimism"This article dicusses how to overcome pessimism about settlement in negotiation and particularly in mediation.
This month's article co-authored by Robert D. Meyers of Kiesewetter Wise Kaplan Prather, PLC, Memphis, Tennessee regarding Tennessee Workers' Compensation Law was published in the August 2010 Tennessee Bar Journal and is entitled "When does an Employee Return to Work for the Pre-Injury Employer?"
This month's article entitled "Troops and Veterans Get Protections: Obama, NDAA 2010 and the Expanding FMLA" is written by Paul Finamore of Niles Barton & Wilmer LLP, Baltimore, MD. The article appeared in the June issue of the DRI "The Voice" newsletter and addresses the National Defense Authorization Act for Fiscal Year 2010 which was signed by the current administration in October, 2009.
This month's article is by Linda S. Woolf and entitled "Navigating the Storm: Insurance Coverage Issues Raised by the Growing Wave of Subprime Mortgage Crisis Litigation" This timely look at the mortgage crisis and insurance coverage issues was presented during the Winter 2009 meeting in Hawaii.
This month, we feature an article on ethics titled "The Ever Shrinking World of Civility-What Would Their Mothers Say?" by James A. Varner, Sr., and Debra Tedeschi Herron of McNeer, Highland, McMunn and Varner, LC in Clarkburg, WV. This article is from a presentation during the 2008 Annual Meeting in Banff.
Stephen P. Pate of Fulbright & Jaworski LLP in Houston, Texas published this timely article on Electronic Discovery entitled "A Proposal to Rein in Runaway Discovery"with Bloomberg Law Reports.
"Forum Non Conveniens in Australia", Dr. Jocelyn Kellam of Clayton Utz, Sydney, Australia and Rene J. Mouledoux of Esso Australia Pty. Ltd. During the 2009 Annual Meeting, a distinguished group of FDCC members presented a program during the plenary session entitled "Goodbye to All That: Forum Non Conveniens Around the World". This program presented the issues of forum non conveniens from an international perspective. Over the next few months articles will be highlighted from this program that together provide an excellent overview of the law of forum non conveniens in other countries examined and of how doctrine in each jurisdiction interacts with the laws of other international jurisdictions.
FDCC member Eldon L. Boisseau, Law Offices of Eldon L. Boisseau, L.L.C., Wichita, Kansas, presented a paper at the 2009 Annual Meeting entitled "Defending Catastrophic Transportation Injuries Is An Art, Not A Science.This paper is an excellent review of factors to be considered in the defense of a catastrophic injury case with particular emphasis on the factors that are specific to large truck accidents.
This month's article by FDCC member Rebecca Levy-Sachs of Robinson & Cole, LLP, Sarasota, Florida is a reprint, initially printed in Florida Investor Green Book. With permission to reprint the article is entitled "Green Building and Property Coverage"