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William Accordino Jr

Liability for pure omissions following the US Supreme Court’s decision in Macquarie Infrastructure

On April 12, 2024, the United States Supreme Court issued a unanimous decision in Macquarie Infrastructure Corp. v. Moab Partners, L.P. The Court held that “pure omissions,” including violations of Item 303 of Regulations…more

Item 303, Macquarie Infrastructure Corp v Moab Partners LP, Omissions, Regulation S-K, Rule 10b-5

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Quentin Alexandre

The Bellefonte Rule “No Longer Good Law”

The United States Court of Appeals for the Second Circuit rejected the Bellefonte Rule, which reinsurers relied upon to cap liability under certificates of facultative reinsurance for indemnity and expense. The Bellefonte…more

Commercial General Liability Policies, Indemnity, Insurance Industry, Insurance Litigation, Reinsurance

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Yaseen Altaf

Disclosure of litigation funding arrangements in collective proceedings: a balancing act

There is a growing trend towards the use of third-party litigation funding (TPLF) in collective proceedings in the UK and globally. The disclosure of TPLF arrangements has recently come under close scrutiny by the Competition…more

Fee Agreements, Fees, UK, UK Competition Appeal Tribunal (CAT)

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Karen Andersen Moran

Key differences in the legal privileges in the US and England

The US concepts of the attorney-client privilege and the work-product doctrine are rooted in England’s and Wales’s legal advice and litigation privileges. The primary purpose of the attorney-client privilege and the legal advice…more

Attorney-Client Privilege, Client Communication, Confidential Communications, Legal Advice, Legal Advice Privilege

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Andres Avila

The end of defense within policy limits

As of October 1, 2023, liability insurers admitted in Nevada may no longer issue or renew any liability policy where policy limits are eroded by defense costs, legal costs and fees and other expenses for claims. Professional and…more

D&O Insurance, Insurance Claims, Insurance Industry, Liability Insurance, Policy Terms

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Katie Barksdale

Second Circuit confirms use of third-party releases in Chapter 11 Bankruptcy Plans – Circuit split remains

On May 30, 2023, the United States Court of Appeals for the Second Circuit issued an order affirming a Chapter 11 Bankruptcy Plan that included nonconsensual third-party claim releases in In Re: Purdue Pharma L.P. et al. v. The…more

Bankruptcy Code, Bankruptcy Court, Chapter 11, Commercial Bankruptcy, Creditors

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Kristen Barone

Has plaintiff assumed the risk? Understanding the development of the primary assumption of risk defense and the ambiguity of “athletic and recreative activities”

In its simplest form, a plaintiff who voluntarily participates in a sporting or recreational event is considered to have consented to those commonly-appreciated risks that are inherent in and arise from participating in the…more

Bodily Injury, Minor Children, Public Policy, Recreation

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Benjamin Blume

New York Department of Financial Services proposes insurance circular letter regarding use of artificial intelligence systems and external consumer data and information sources in insurance underwriting and pricing

On January 17, 2024, The New York Department of Financial Services (“DFS”) issued a proposed insurance circular letter regarding insurers’ use of external consumer data and information sources (“ECDIS”) and artificial…more

Artificial Intelligence, Discrimination, Financial Services Industry, Insurance Industry, NYDFS

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Forrest Booth

California Court of Appeal clarifies Howell and proceeds to publish Audish v. Macias

California’s Fourth Appellate District published its opinion in Audish v. Macias, clarifying the collateral source rule in personal injury cases. The Court built on the foundation provided by Howell v. Hamilton Meats &…more

Bodily Injury, Car Accident, Evidence, Medicare

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Eileen Bradley

Pennsylvania Supreme Court finds no coverage for COVID-19 business interruption losses

In a long-awaited decision, the Pennsylvania Supreme Court ruled in favor of the insurance companies in two appeals involving the availability of business interruption insurance coverage for losses stemming from the COVID-19…more

Business Interruption, Business Losses, Coronavirus/COVID-19, Insurance Claims, Insurance Industry

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Ciara Brady

Bermuda Court exercises discretion by declining to appoint nominees of first creditors' meeting

In Re Ping An Securities Group (Holdings) Limited [2022] SC (Bda) 25 Com (8 April 2022), the Supreme Court of Bermuda (the “Bermuda Court”) declined to appoint the nominee of a first creditors’ meeting, instead appointing a…more

Bermuda, Creditors, Insolvency, Restructuring

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Sean Burns

Analyzing how right to repair legislation may affect insurance coverage and litigation

Tractors, ventilators, and iPhones are at the center of a growing dispute between consumers and manufacturers. For nearly a decade, organizations such as the Repair Association and iFixit have lobbied legislators to enact laws…more

Insurance Claims, Insurance Industry, Insurance Litigation, Policy Terms

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Bevin Carroll

Negligent damage to an insured’s work now considered “property damage” caused by an “occurrence” under Illinois law

In a landmark decision, the Illinois Supreme Court has set forth a new legal framework to follow when analyzing coverage for construction defect claims under CGL policies. In Acuity v. M/I Homes of Chicago, LLC, 2023 IL 129087,…more

Construction Contracts, Construction Defects, Construction Industry, Construction Project, Negligence

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Marc Casarino

A practical guide to Series LLC

Whether you are struggling with your current company structure that does not separate assets and liabilities between your different lines of business, or have multiple companies to do this for you, the Series LLC can offer…more

Corporate Governance, Limited Liability Company (LLC), LLC Agreements, Operating Agreements, Series LLC

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Elizabeth Chalik

Dram Shop Actions: The importance of knowing the jurisdiction’s rules on permitting common-law negligence claims

A significant number of dram shop complaints include allegations of common law negligence in addition to the allegations of the liquor liability under the jurisdiction’s relevant statute. A plaintiff may allege the defendant…more

Bars, Common Law Claims, Dram Shop Laws, Negligence, Wine & Alcohol

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Suzanne Chamberlin

Practical considerations surrounding motions for substituted service on insurers

It is a frequent situation. A contractor obtains a liability policy from an insurer. Down the road, a construction defect claim is asserted, and suit is brought against the contractor. By this point the contractor is no longer…more

Construction Defects, Construction Industry, Insurance Claims, Insurance Industry

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Blaise Chow

Liability for pure omissions following the US Supreme Court’s decision in Macquarie Infrastructure

On April 12, 2024, the United States Supreme Court issued a unanimous decision in Macquarie Infrastructure Corp. v. Moab Partners, L.P. The Court held that “pure omissions,” including violations of Item 303 of Regulations…more

Item 303, Macquarie Infrastructure Corp v Moab Partners LP, Omissions, Regulation S-K, Rule 10b-5

See all updates »

Mark Chudleigh

Arbitration trumps: Bermuda court confirms pro-arbitration approach

If litigation proceedings are commenced in breach of a valid and enforceable agreement to arbitrate, how soon in the proceedings does a defendant need to seek a stay of the litigation? The Supreme Court of Bermuda recently…more

Arbitration, Arbitration Agreements, Bermuda, Dispute Resolution, International Arbitration

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Teresa Cinnamond

Beyond borders: how to obtain a plaintiff’s medical records located outside the US

A staple of personal injury litigation in the United States concerns the gathering and exchange of a plaintiff’s medical records through the discovery process. These records are often critical to defendants and must be reviewed…more

Discovery, Health Care Providers, Health Insurance Portability and Accountability Act (HIPAA), Medical Records, Subpoenas

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Philippa Craven

Causing climate change…a new tort? A cross-jurisdictional review

There is currently a global movement in common law jurisdictions for plaintiffs to use the court system to evoke change and develop climate change jurisprudence. Notably, in New Zealand we have recently seen a new tort of…more

Climate Change, Greenhouse Gas Emissions, Insurance Industry, Policy Terms

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Colin Crug

Choice-of-law: Uniformity at long last

On February 21, 2024, the United States Supreme Court decided one of the most important marine insurance cases in the United States since 1955. In Great Lakes Insurance SE v. Raiders Retreat Realty Co., the Court held that…more

Choice-of-Law, Insurance Industry, Insurance Litigation, Policy Terms

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Cameron Cushner

Crisis averted?: Despite deal on longshore strike, legal issues loom

On October 4, 2024 millions of people breathed a collective sigh of relief when the International Longshoremen’s Association (ILA) and the United States Maritime Alliance (USMX) reached a temporary agreement to delay the planned…more

Labor Disputes, Logistics, Longshoremen, Ports, Shipping

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Eduardo DeMarco

New Jersey Supreme Court rules that COVID-19 business interruption claims may be dismissed at the pleadings stage

In a unanimous opinion issued yesterday, the New Jersey Supreme Court joined the majority of other courts to hold that business interruption losses related to the COVID-19 pandemic are not covered under the standard language of…more

Business Interruption, Business Losses, Commercial Insurance Policies, Coronavirus/COVID-19, Insurance Claims

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Oliver Dent

[Webinar] Days of reckoning: How to prepare for, respond to, and recover from ransomware and other cyberattacks - June 27th, 2:00 pm - 5:00 pm EST

Kennedys and Booz Allen Hamilton are delighted to invite you to our 3 hour webinar on Thursday, June 27, 2024. This half-day seminar features three presentations: Clear and present danger, In the war room, and The fallout…more

Continuing Legal Education, Cyber Attacks, Cyber Incident Reporting, Cybersecurity, Data Breach

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Susan Dent

De Bene Esse depositions: A trial testimony insurance policy

In the wake of COVID-19, litigators all across the United States are noticing an old, yet infrequently utilized, evidentiary tool emerge to address unexpected trial witness unavailability: the de bene esse deposition. A Latin…more

Depositions, Discovery, Insurance Industry, Insurance Litigation, Policy Terms

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Jennifer Devlugt

Mending the Gap (in Pleadings): Texas Supreme Court allows for consideration of extrinsic evidence in evaluating an insurer’s duty to defend

The Texas Supreme Court answered certified questions from the Fifth Circuit last week in Monroe Guaranty Insurance Company v. BITCO General Insurance Corporation, -- S.W.3d --, 2022 WL --, at * -- (Tex. Feb. 11, 2022), carving…more

Extrinsic Evidence, Insurance Claims, Insurance Industry, Insurance Litigation

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Colin Drummond

Dram Shop Actions: The importance of knowing the jurisdiction’s rules on permitting common-law negligence claims

A significant number of dram shop complaints include allegations of common law negligence in addition to the allegations of the liquor liability under the jurisdiction’s relevant statute. A plaintiff may allege the defendant…more

Bars, Common Law Claims, Dram Shop Laws, Negligence, Wine & Alcohol

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Jarrod Etengoff

Florida Building Safety Bill signed by Florida Gov. DeSantis

Governor DeSantis signed Senate Bill 4D (“SB 4D”) relating to building safety into law on May 26, 2022, on the same day he signed Senate Bill 2D relating to property insurance. The bill was proposed and passed following the…more

Condominium Associations, Condominiums, Governor DeSantis, Insurance Claims, Property Damage

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Frank Falcone

Salary threshold increase for exempt employees begins Monday

With the salary threshold increase for exempt employees taking effect this Monday, businesses across industries are bracing for a transformative shift in their payroll practices. The Fair Labor Standards Act (“FLSA”) sets…more

Department of Labor (DOL), Employer Liability Issues, Exempt-Employees, Fair Labor Standards Act (FLSA), Highly Compensated Employees

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Amanda Farley

Fifth Circuit expands scope of Title VII protection

The case of Hamilton v. Dallas County, 2023 WL 5316716 (5th Cir. Aug. 18, 2023) represents a pivotal shift in how the Fifth Circuit views claims of workplace discrimination under Title VII of the Civil Rights Act of 1964. The…more

Civil Rights Act, Employer Liability Issues, Employment Discrimination, Employment Litigation, Hiring & Firing

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Matthew Ferguson

Underwriters, are you ready for the new rules governing private funds advisors?

Private equity firms are facing increased disclosure requirements and new restrictions on giving certain investors special treatment. Are current market policies sufficient to limit exposure in this new environment?…more

Disclosure Requirements, Insurance Industry, Investment Adviser, New Rules, Private Equity Firms

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Persephone Forster

The future of COVID-19 risk and regulatory enforcement: a cross-jurisdictional review

The COVID-19 pandemic has been a global health and economic crisis with devastating effects. For many countries, the focus has shifted to economic recovery and growth. Integral to this is the safety of workers’ physical and…more

Coronavirus/COVID-19, Employer Liability Issues, Health and Safety, Mental Health, Reasonable Accommodation

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Louis Foscolo

Key differences in the legal privileges in the US and England

The US concepts of the attorney-client privilege and the work-product doctrine are rooted in England’s and Wales’s legal advice and litigation privileges. The primary purpose of the attorney-client privilege and the legal advice…more

Attorney-Client Privilege, Client Communication, Confidential Communications, Legal Advice, Legal Advice Privilege

See all updates »

Nate French

The Illinois Prejudgment Interest Statute is called into question

In 2021, Governor Pritzker signed into law SB 0072, which represented an amendment to the Illinois Prejudgment Interest Statute, 735 ILCS 5/2-1303. The relevant part of the Amendment provides, “In all actions brought to recover…more

Attorney's Fees, Bodily Injury, Damages, Governor Pritzker, Prejudgment Interest

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Alexander Fumagali

Crisis averted?: Despite deal on longshore strike, legal issues loom

On October 4, 2024 millions of people breathed a collective sigh of relief when the International Longshoremen’s Association (ILA) and the United States Maritime Alliance (USMX) reached a temporary agreement to delay the planned…more

Labor Disputes, Logistics, Longshoremen, Ports, Shipping

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Gavin Fung

New Jersey Appellate Court enforces “capacity” exclusion in D&O policy as matter of first impression

As a matter of first impression, on July 9, 2024, the Superior Court of New Jersey Appellate Division issued a published decision upholding and enforcing a “capacity” exclusion contained in a Directors and Officers Liability…more

D&O Insurance, Insurance Claims, Insurance Industry, Insurance Litigation, Policy Exclusions

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Kristin Gallagher

New Jersey Supreme Court rules that COVID-19 business interruption claims may be dismissed at the pleadings stage

In a unanimous opinion issued yesterday, the New Jersey Supreme Court joined the majority of other courts to hold that business interruption losses related to the COVID-19 pandemic are not covered under the standard language of…more

Business Interruption, Business Losses, Commercial Insurance Policies, Coronavirus/COVID-19, Insurance Claims

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James Gammell

Impact and risks of artificial intelligence and its use by the board of directors in decision making

Artificial Intelligence (AI) has become an inseparable part of our everyday lives. AI is used in Siri, facial recognition, navigation systems and search recommendations and advertisement algorithms to name just a few examples…more

Algorithms, Artificial Intelligence, Board of Directors, D&O Insurance, Machine Learning

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John Gilfillan

Newly signed bill opens the door for bad faith suits against auto insurers providing UM and UIM benefits

On January 19, 2022, New Jersey’s Governor, Phil Murphy, passed S.B. 1559 into law, referred to as the New Jersey Insurance Fair Conduct Act (“IFCA”). The IFCA creates a private cause of action for injured motorists to sue…more

Auto Insurance, Bad Faith, Car Accident, Insurance Industry, Uninsured and Under-Insured Motorists

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Michael Goldwasser

Macquarie says Second Circuit makes a mockery of Section 10(b)

On January 16, 2024, the Supreme Court heard argument in Macquarie Infrastructure Corporation et al. v. Moab Partners LP et al., No. 22-1165. Macquarie presents an important issue for publicly traded companies and their D&O…more

D&O Insurance, Insurance Claims, Insurance Industry, Insurance Litigation

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Eric Gonzalez

Trucks, vans, and delivery sedans! The complicated landscape of New Jersey pedestrian PIP law and its impact on food delivery platforms

Shortly after the COVID-19 Pandemic began, general public spending on food delivery increased by roughly 70% between March 2019 and the first wave of the pandemic in March 2020. As food delivery platforms have become more and…more

Auto Insurance, Car Accident, Delivery Drivers, Insurance Industry, Pedestrians

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Jessica Gross

Insurer deemed “party in interest” in insureds’ Chapter 11 case

The US Supreme Court ruled that an insurer with financial responsibility for bankruptcy claims is a “party in interest” under Bankruptcy Code §1109(b) that “may raise and may appear and be heard on any issue” in a Chapter 11…more

Asbestos, Bankruptcy Code, Chapter 11, Commercial Bankruptcy, Debtors

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Matthew Guarnero

SEC issues proposed regulations on climate-related disclosures and D&O implications

Across Europe and the United States there has been a growing focus on Environmental Social and Governance (“ESG”) regulations for corporations. While the regulatory landscape in Europe has led to conduct-based directives on…more

Climate Change, Disclosure Requirements, Environmental Social & Governance (ESG), Proposed Rules, Regulation S-K

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Gregory Harvey

FTC issues warning to companies in light of Log4j risks

As 2021 came to a close and the ever-present threat of ransomware attacks continued to loom large, there was arguably no greater security risk in the minds of cybersecurity professionals than the Log4j vulnerability. Jen…more

Cyber Attacks, Cybersecurity, Data Security, Federal Trade Commission (FTC), Popular

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Jonathan Hauptman

Short-Seller Reports in SPAC Litigation: Credible Evidence or Fabricated Self-Interest?

The use of Special Purpose Acquisition Companies (“SPACs”) has exploded in recent years. SPACs are an increasingly popular way for private companies to become publicly traded without undergoing a traditional initial public…more

Class Action, Initial Public Offering (IPO), Securities Litigation, Special Purpose Acquisition Companies (SPACs)

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James Hickey

The rising specter of BIPA claims in Illinois

Over the past five years, approximately 1,500 lawsuits have been filed asserting claims under Illinois’ Biometric Information Privacy Act (“BIPA”). At its most basic, BIPA sets forth regulations for the collection, use, and…more

Biometric Information, Biometric Information Privacy Act, Data Collection, Data Privacy, Personal Data

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Eric Hiller

Treatment of attorney’s fees awards under liability policies-Kennedys

Insureds may find themselves liable to pay a plaintiff’s attorney’s fees in various contexts, whether by virtue of a statute or contractual provision. If prevailing party attorney’s fees are awarded, a question arises as to…more

Attorney's Fees, Insurance Industry, Insurance Litigation, Policy Terms

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Brienne Huntsman

A new frontier in tech and litigation?

In a recent precedential decision involving electronic service to an unknown defendant, the High Court of England and Wales approved a special request to issue an interim injunction and permit service of a lawsuit via a…more

Blockchain, Cryptocurrency, Digital Assets, Digital Wallets, Non-Fungible Tokens (NFTs)

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Kate Hyde

New Jersey’s new pre-suit policy disclosure requirement

A recent change to the New Jersey Motor Vehicles and Traffic Regulation creates a pre-suit, time sensitive obligation to provide the disclosure of applicable policy limits…more

Disclosure Requirements, Insurance Industry, Insurance Litigation, Policy Limits

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Mariya Joldzic

Salary threshold increase for exempt employees begins Monday

With the salary threshold increase for exempt employees taking effect this Monday, businesses across industries are bracing for a transformative shift in their payroll practices. The Fair Labor Standards Act (“FLSA”) sets…more

Department of Labor (DOL), Employer Liability Issues, Exempt-Employees, Fair Labor Standards Act (FLSA), Highly Compensated Employees

See all updates »

Thomas Kaufman

Southern District of New York reiterates high standard for arbitrator removal on bias grounds

Applications to disqualify arbitrators or vacate arbitration awards due to the alleged bias of a panel member made in United States courts are often met with significant resistance. Courts have long recognized that arbitrators,…more

Arbitration, Arbitrators, Bias, Dispute Resolution, Disqualification

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Adam Kenny

Fifth Circuit expands scope of Title VII protection

The case of Hamilton v. Dallas County, 2023 WL 5316716 (5th Cir. Aug. 18, 2023) represents a pivotal shift in how the Fifth Circuit views claims of workplace discrimination under Title VII of the Civil Rights Act of 1964. The…more

Civil Rights Act, Employer Liability Issues, Employment Discrimination, Employment Litigation, Hiring & Firing

See all updates »

Daisy Khambatta

The Illinois Prejudgment Interest Statute is called into question

In 2021, Governor Pritzker signed into law SB 0072, which represented an amendment to the Illinois Prejudgment Interest Statute, 735 ILCS 5/2-1303. The relevant part of the Amendment provides, “In all actions brought to recover…more

Attorney's Fees, Bodily Injury, Damages, Governor Pritzker, Prejudgment Interest

See all updates »

Julie Klein

Negligent damage to an insured’s work now considered “property damage” caused by an “occurrence” under Illinois law

In a landmark decision, the Illinois Supreme Court has set forth a new legal framework to follow when analyzing coverage for construction defect claims under CGL policies. In Acuity v. M/I Homes of Chicago, LLC, 2023 IL 129087,…more

Construction Contracts, Construction Defects, Construction Industry, Construction Project, Negligence

See all updates »

Tracey Kline

Ninth Circuit rules that California Insurance Code § 533 bars coverage for a settled malicious prosecution lawsuit

In an interesting new decision, the Ninth Circuit in Aspen Specialty Ins. Co. v. Miller Barondess, LLP (“Miller Barondess”) held that Section 533 of the California Insurance Code—which states that “[a]n insurer is not liable for…more

Insurance Claims, Insurance Code, Insurance Industry, Insurance Litigation, Intentional Acts Exception

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Jedidiah Vander Klok

An in-depth look at changes impacting insurers arising from Florida's new tort reform act

On March 24, 2023, Florida passed a sweeping tort reform bill into law, making major changes to civil litigation in the state. In anticipation of the Governor signing the bill into law, the number of new cases initiated…more

Attorney's Fees, Insurance Claims, Insurance Industry, Insurance Litigation, Tort Reform

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Kelsey Knish

Mirror-image counterclaims in declaratory judgment actions

Is a declaratory judgment counterclaim a mirror-image of the plaintiff’s complaint for declaratory judgment or redundant of defendants’ answer and affirmative defenses to the plaintiff’s complaint? Insurers should consider this…more

Counterclaims, Insurance Claims, Insurance Industry, Insurance Litigation

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Aaron Konstam

Treatment of attorney’s fees awards under liability policies-Kennedys

Insureds may find themselves liable to pay a plaintiff’s attorney’s fees in various contexts, whether by virtue of a statute or contractual provision. If prevailing party attorney’s fees are awarded, a question arises as to…more

Attorney's Fees, Insurance Industry, Insurance Litigation, Policy Terms

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Erik Kowalewsky

Just add water—why relating back does not put the insurer on notice of bad faith

In D&B Marine, LLC v AIG Prop. Cas. Co. [March 21, 2023] the North Carolina Court of Appeals held that the owner of what the court deemed “the Unluckiest Yacht” could not relate back claims for bad faith to its original…more

Bad Faith, Insurance Claims, Insurance Industry, Insurance Litigation, Policy Terms

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Louis Kozloff

Pennsylvania Supreme Court finds no coverage for COVID-19 business interruption losses

In a long-awaited decision, the Pennsylvania Supreme Court ruled in favor of the insurance companies in two appeals involving the availability of business interruption insurance coverage for losses stemming from the COVID-19…more

Business Interruption, Business Losses, Coronavirus/COVID-19, Insurance Claims, Insurance Industry

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Heidi Kuffel

Duties in the absence of defense or indemnity obligations – A closer look at the MCS-90 endorsement and the inconsistencies in determining when it applies

Federal law obligates all motor carriers participating in the transportation of property in interstate commerce for hire to show proof that they have the financial ability to cover any damage they cause to the public. One way…more

Car Accident, Indemnity, Insurance Industry, Insurance Litigation, Liability Insurance

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Gary Kull

New appellate perspectives on EIFS exclusions and mixed claims under insurance law

Introduction - Insurance coverage attorneys often face challenges when seeking to enforce policy exclusions on their clients’ behalf. To that end, New York appellate courts have ruled on certain policy exclusions so often…more

Insurance Claims, Insurance Industry, Insurance Litigation, Policy Exclusions, Policy Terms

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John LaBarbera

New York Department of Financial Services proposes insurance circular letter regarding use of artificial intelligence systems and external consumer data and information sources in insurance underwriting and pricing

On January 17, 2024, The New York Department of Financial Services (“DFS”) issued a proposed insurance circular letter regarding insurers’ use of external consumer data and information sources (“ECDIS”) and artificial…more

Artificial Intelligence, Discrimination, Financial Services Industry, Insurance Industry, NYDFS

See all updates »

Justin Le Blond

The future of COVID-19 risk and regulatory enforcement: a cross-jurisdictional review

The COVID-19 pandemic has been a global health and economic crisis with devastating effects. For many countries, the focus has shifted to economic recovery and growth. Integral to this is the safety of workers’ physical and…more

Coronavirus/COVID-19, Employer Liability Issues, Health and Safety, Mental Health, Reasonable Accommodation

See all updates »

Josh Levy

Florida Property Insurance Reform Bill signed by Florida Gov. DeSantis

Governor DeSantis signed Senate Bill 2D (“SB 2D”), relating to property insurance, and Senate Bill 4D (“SB 4D”), relating to building safety, into law on May 26, 2022. The bill, SB 2D, enacts pro-consumer measures to help…more

Contractors, Governor DeSantis, Insurance Claims, Insurance Industry, Property Insurance

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Jordan Lewis

An in-depth look at changes impacting insurers arising from Florida's new tort reform act

On March 24, 2023, Florida passed a sweeping tort reform bill into law, making major changes to civil litigation in the state. In anticipation of the Governor signing the bill into law, the number of new cases initiated…more

Attorney's Fees, Insurance Claims, Insurance Industry, Insurance Litigation, Tort Reform

See all updates »

Melissa Luzzi

A practical guide to Series LLC

Whether you are struggling with your current company structure that does not separate assets and liabilities between your different lines of business, or have multiple companies to do this for you, the Series LLC can offer…more

Corporate Governance, Limited Liability Company (LLC), LLC Agreements, Operating Agreements, Series LLC

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Sean Mahoney

The end of defense within policy limits

As of October 1, 2023, liability insurers admitted in Nevada may no longer issue or renew any liability policy where policy limits are eroded by defense costs, legal costs and fees and other expenses for claims. Professional and…more

D&O Insurance, Insurance Claims, Insurance Industry, Liability Insurance, Policy Terms

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Thomas Maroney

New decisions could bring big changes: Recent trends in New York labor law

The New York State Court of Appeals recently upheld three decisions in favor of defendants in cases involving alleged violations of Section 240(1) of the New York State Labor Law. Section 240(1) imposes strict liability on…more

Construction Industry, Employer Liability Issues, Labor Law Violations, Safety Equipment, State Labor Laws

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Daniel Marvin

[Webinar] Ransom-ready: Navigating recovery, remediation and legalities - June 4th, 11:00 am - 12:00 pm EST

Kennedys and CYPFER are delighted to invite you to our 60 minute webinar on Tuesday, June 4, 2024. We will explore the practical and legal implications involved in navigating a ransomware event, and how decision-making in a…more

Best Practices, Continuing Legal Education, Cyber Attacks, Cyber Threats, Cybersecurity

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Ryan McInerney

New Jersey’s Appellate Division compels arbitration enforcing “clickwrap” agreement requiring arbitration of a product liability dispute

On April 3, 2023, the New Jersey Appellate Division in Jeffrey Santana v. SmileDirectClub, LLC, Docket A-2433-21, __ N.J. Super. __ ( App. Div. April 3, 2023), issued an opinion enforcing an arbitration provision found within an…more

Arbitration, Arbitration Agreements, Browsewrap Agreement, Clickwrap Agreements

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Nick Miles

Bermuda: Provisional liquidation as a restructuring tool

Focus on provisional liquidation as a restructuring tool - Many of 2022’s restructuring cases illustrate important trends and developments regarding Bermuda’s “light touch” provisional liquidation (or “provisional liquidation…more

Bankruptcy Code, Bermuda, Chapter 11, Chapter 15, Creditors

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Joshua Mooney

[Webinar] Days of reckoning: How to prepare for, respond to, and recover from ransomware and other cyberattacks - June 27th, 2:00 pm - 5:00 pm EST

Kennedys and Booz Allen Hamilton are delighted to invite you to our 3 hour webinar on Thursday, June 27, 2024. This half-day seminar features three presentations: Clear and present danger, In the war room, and The fallout…more

Continuing Legal Education, Cyber Attacks, Cyber Incident Reporting, Cybersecurity, Data Breach

See all updates »

Beran Nar

Florida Property Insurance Reform Bill signed by Florida Gov. DeSantis

Governor DeSantis signed Senate Bill 2D (“SB 2D”), relating to property insurance, and Senate Bill 4D (“SB 4D”), relating to building safety, into law on May 26, 2022. The bill, SB 2D, enacts pro-consumer measures to help…more

Contractors, Governor DeSantis, Insurance Claims, Insurance Industry, Property Insurance

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Chloe Nelson

Connecticut’s new consumer data privacy law: a New Haven for privacy protection? Not exactly

Connecticut is the fifth state to pass a comprehensive privacy law. Senate Bill 6, “An Act Concerning Personal Data Privacy and Online Monitoring” (“CTDPA” or “Act”), passed in both chambers of the state legislature on April…more

Consumer Privacy Rights, Cybersecurity, Data Collection, Data Privacy, Data Protection

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Matthew Nelson

Treasury “significantly expands” CFIUS jurisdiction over covered real estate transactions

On July 8, 2024, the United States Department of the Treasury’s Office of Investment Security issued a Notice of Proposed Rulemaking (“NPRM”) that proposed to expand the geographic reach in which the Committee on Foreign…more

CFIUS, Covered Transactions, Foreign Investment, National Security, Real Estate Transactions

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Scott Newman

An in-depth look at changes impacting insurers arising from Florida's new tort reform act

On March 24, 2023, Florida passed a sweeping tort reform bill into law, making major changes to civil litigation in the state. In anticipation of the Governor signing the bill into law, the number of new cases initiated…more

Attorney's Fees, Insurance Claims, Insurance Industry, Insurance Litigation, Tort Reform

See all updates »

Beth O'Connor

Causing climate change…a new tort? A cross-jurisdictional review

There is currently a global movement in common law jurisdictions for plaintiffs to use the court system to evoke change and develop climate change jurisprudence. Notably, in New Zealand we have recently seen a new tort of…more

Climate Change, Greenhouse Gas Emissions, Insurance Industry, Policy Terms

See all updates »

Suraj Oza

New Jersey’s new pre-suit policy disclosure requirement

A recent change to the New Jersey Motor Vehicles and Traffic Regulation creates a pre-suit, time sensitive obligation to provide the disclosure of applicable policy limits…more

Disclosure Requirements, Insurance Industry, Insurance Litigation, Policy Limits

See all updates »

Brad Pace

Just add water—why relating back does not put the insurer on notice of bad faith

In D&B Marine, LLC v AIG Prop. Cas. Co. [March 21, 2023] the North Carolina Court of Appeals held that the owner of what the court deemed “the Unluckiest Yacht” could not relate back claims for bad faith to its original…more

Bad Faith, Insurance Claims, Insurance Industry, Insurance Litigation, Policy Terms

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Sneh Patel

Does a party to litigation have a common law duty to preserve evidence in Florida?

“Spoliation is defined as ‘[t]he destruction, or significant and meaningful alteration of [evidence],’…or ‘the failure to preserve property for another’s use as evidence in pending’ or reasonably foreseeable litigation.” Landry…more

Breach of Duty, Duty to Preserve, Evidence, Spoliation

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Erik Penz

Arbitration trumps: Bermuda court confirms pro-arbitration approach

If litigation proceedings are commenced in breach of a valid and enforceable agreement to arbitrate, how soon in the proceedings does a defendant need to seek a stay of the litigation? The Supreme Court of Bermuda recently…more

Arbitration, Arbitration Agreements, Bermuda, Dispute Resolution, International Arbitration

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Maurice Pesso

Macquarie says Second Circuit makes a mockery of Section 10(b)

On January 16, 2024, the Supreme Court heard argument in Macquarie Infrastructure Corporation et al. v. Moab Partners LP et al., No. 22-1165. Macquarie presents an important issue for publicly traded companies and their D&O…more

D&O Insurance, Insurance Claims, Insurance Industry, Insurance Litigation

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Matthew Phillips

Analyzing how right to repair legislation may affect insurance coverage and litigation

Tractors, ventilators, and iPhones are at the center of a growing dispute between consumers and manufacturers. For nearly a decade, organizations such as the Repair Association and iFixit have lobbied legislators to enact laws…more

Insurance Claims, Insurance Industry, Insurance Litigation, Policy Terms

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Tyler Pierson

Two New Jersey decisions provide guidance on policy reformation

Reformation of an insurance policy is an equitable remedy that is rarely employed by the courts. Yet, in the rare circumstances when it may be applied, the remedy can throw a wrench into even the most well-developed coverage…more

Auto Insurance, Insurance Industry, Insurance Litigation, Policy Terms

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Pasquale Pontoriero

Supreme Court of New Jersey affirms: Accidents involving low speed scooters are ineligible for Personal Injury Protection Benefits in New Jersey

On May 14, 2024, the Supreme Court of New Jersey affirmed last summer’s Appellate Division decision that a plaintiff injured while operating a low-speed electronic scooter did not qualify for Personal Injury Protection (“PIP”)…more

Auto Insurance, Bodily Injury, Car Accident, Insurance Industry, Insurance Litigation

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Stephanie Power

The future of COVID-19 risk and regulatory enforcement: a cross-jurisdictional review

The COVID-19 pandemic has been a global health and economic crisis with devastating effects. For many countries, the focus has shifted to economic recovery and growth. Integral to this is the safety of workers’ physical and…more

Coronavirus/COVID-19, Employer Liability Issues, Health and Safety, Mental Health, Reasonable Accommodation

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Nicole Putnam

The Bellefonte Rule “No Longer Good Law”

The United States Court of Appeals for the Second Circuit rejected the Bellefonte Rule, which reinsurers relied upon to cap liability under certificates of facultative reinsurance for indemnity and expense. The Bellefonte…more

Commercial General Liability Policies, Indemnity, Insurance Industry, Insurance Litigation, Reinsurance

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Lalitha Ramakrishnan

New Jersey’s Appellate Division reaffirmed the protections afforded by the Charitable Immunity Act where plaintiff could not prove gross negligence

On December 29, 2021, the New Jersey Appellate Division in Bass v. House of Prayer Cogic of Orange, Docket A-1284-20, __ N.J. Super. __ ( App. Div. December 29, 2021), issued an opinion reinforcing the protections afforded to…more

Bodily Injury, Charitable Organizations, Immunity, Negligence

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Melissa Russell

Causing climate change…a new tort? A cross-jurisdictional review

There is currently a global movement in common law jurisdictions for plaintiffs to use the court system to evoke change and develop climate change jurisprudence. Notably, in New Zealand we have recently seen a new tort of…more

Climate Change, Greenhouse Gas Emissions, Insurance Industry, Policy Terms

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Nitin Sain

The Grieving Families Act’s impact on wrongful death actions in New York

On June 2, 2022, Senate Bill S74A, also known as the Grieving Families Act, passed the New York Senate Assembly and is expected to be signed by Governor Kathy Hochul. Once in effect, the new law will expand recovery rights of a…more

Damages, Economic Damages, Non-Economic Damages, Wrongful Death

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Erica Ruth Sanders

Understanding New York’s Comprehensive Insurance Disclosure Act

On December 31, 2021, New York Gov. Kathy Hochul signed the Comprehensive Insurance Disclosure Act (the “Act”) into law. The Act, which is effective immediately, modifies C.P.L.R. § 3101(f) to require that any defendant…more

Disclosure Requirements, Insurance Industry, Insurance Litigation, Policy Limits, Proposed Amendments

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Karine Sarkisian

The FTC’s effort for a non-compete ban has been judicially struck down, however, its fate still hangs in the balance

The Federal Trade Commission’s (“FTC”) efforts to ban non-compete agreements was significantly curtailed when a federal judge in Texas, on August 20, 2024, issued a nationwide injunction, finding the FTC’s ban on non-compete…more

Employer Liability Issues, Employment Contract, Federal Trade Commission (FTC), Non-Compete Agreements, Restrictive Covenants

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Junaid Savani

An unresolved issue of Tennessee coverage law: The scope of pollution exclusions

Insurers often include exclusions within their liability policies to prohibit coverage for claims arising out of pollution exposure. The exact wording of the exclusion can differ significantly, but the key issue is whether the…more

Insurance Claims, Insurance Industry, Insurance Litigation, Policy Exclusions, Policy Terms

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Eric Scheiner

Key differences in the legal privileges in the US and England

The US concepts of the attorney-client privilege and the work-product doctrine are rooted in England’s and Wales’s legal advice and litigation privileges. The primary purpose of the attorney-client privilege and the legal advice…more

Attorney-Client Privilege, Client Communication, Confidential Communications, Legal Advice, Legal Advice Privilege

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Mickey Schneider

Has plaintiff assumed the risk? Understanding the development of the primary assumption of risk defense and the ambiguity of “athletic and recreative activities”

In its simplest form, a plaintiff who voluntarily participates in a sporting or recreational event is considered to have consented to those commonly-appreciated risks that are inherent in and arise from participating in the…more

Bodily Injury, Minor Children, Public Policy, Recreation

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Pamela Schultz

De Bene Esse depositions: A trial testimony insurance policy

In the wake of COVID-19, litigators all across the United States are noticing an old, yet infrequently utilized, evidentiary tool emerge to address unexpected trial witness unavailability: the de bene esse deposition. A Latin…more

Depositions, Discovery, Insurance Industry, Insurance Litigation, Policy Terms

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Thomas Seery

Oklahoma Supreme Court joins majority of COVID-19 decisions and finds for insurer in COVID-19 coverage dispute with Cherokee Nation

The Oklahoma Supreme Court is the most recent state high court to hold that property insurance policies do not provide coverage for COVID-19 related business interruption losses. In Cherokee Nation v. Lexington Insurance…more

Business Interruption, Business Losses, Coronavirus/COVID-19, Insurance Industry, Policy Terms

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Judy Selby

[Webinar] Ransom-ready: Navigating recovery, remediation and legalities - June 4th, 11:00 am - 12:00 pm EST

Kennedys and CYPFER are delighted to invite you to our 60 minute webinar on Tuesday, June 4, 2024. We will explore the practical and legal implications involved in navigating a ransomware event, and how decision-making in a…more

Best Practices, Continuing Legal Education, Cyber Attacks, Cyber Threats, Cybersecurity

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Nikita Shah

The SEC Incentive-Based Compensation Clawback Rule is now effective

On January 27, 2023, the SEC’s new Executive Compensation Clawback Rules became effective. The rules require listed companies to: (1) develop and implement a policy to recover erroneously awarded incentive-based compensation…more

Clawbacks, Disclosure Requirements, Dodd-Frank, Executive Compensation, Final Rules

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Hilary Simon

Recent First Department decision revisits duty of care and common law negligence

The Appellate Division of the State of New York, First Department recently reversed a lower court decision, holding that a subcontractor did not owe a duty of care to a plaintiff working on a jobsite and therefore, determined…more

Construction Industry, Contractors, General Contractors, Insurance Industry, Insurance Litigation

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Heather Simpson

Insurer deemed “party in interest” in insureds’ Chapter 11 case

The US Supreme Court ruled that an insurer with financial responsibility for bankruptcy claims is a “party in interest” under Bankruptcy Code §1109(b) that “may raise and may appear and be heard on any issue” in a Chapter 11…more

Asbestos, Bankruptcy Code, Chapter 11, Commercial Bankruptcy, Debtors

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Alen Sinanovic

The future of COVID-19 risk and regulatory enforcement: a cross-jurisdictional review

The COVID-19 pandemic has been a global health and economic crisis with devastating effects. For many countries, the focus has shifted to economic recovery and growth. Integral to this is the safety of workers’ physical and…more

Coronavirus/COVID-19, Employer Liability Issues, Health and Safety, Mental Health, Reasonable Accommodation

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Ariella Sparr

Greenwashing, climate change disclosures, and financial lines risks

With the increased attention by regulators, investors, and businesses to environmental, social and governance (“ESG”) policies, insurers in the financial lines sector are evaluating the potential exposure for such risks. One…more

Climate Change, Disclosure Requirements, Environmental Social & Governance (ESG), Greenwashing, Securities and Exchange Commission (SEC)

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Greg Steinberg

Supreme Court cuts defendants “slack” on Section 11 direct listing claims

On June 1, 2023, the United States Supreme Court ruled that a plaintiff bringing a claim under Section 11 of the Securities Act of 1933 arising from a direct listing must trace their shares to the registration statement. As…more

Direct Listing, SCOTUS, Section 11, Securities Act of 1933, Slack

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John Sullivan

Underwriters, are you ready for the new rules governing private funds advisors?

Private equity firms are facing increased disclosure requirements and new restrictions on giving certain investors special treatment. Are current market policies sufficient to limit exposure in this new environment?…more

Disclosure Requirements, Insurance Industry, Investment Adviser, New Rules, Private Equity Firms

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Elizabeth Sutton

Pennsylvania Supreme Court finds no coverage for COVID-19 business interruption losses

In a long-awaited decision, the Pennsylvania Supreme Court ruled in favor of the insurance companies in two appeals involving the availability of business interruption insurance coverage for losses stemming from the COVID-19…more

Business Interruption, Business Losses, Coronavirus/COVID-19, Insurance Claims, Insurance Industry

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Jonathan Thames

Live Life Bella Vita, LLC v. Cruising Yachts, Inc.: Ninth Circuit finds that third-party indemnity claimants are still claimants for Limitation Act purposes

The Ninth Circuit Court of Appeals in Live Life Bella Vita, LLC v. Cruising Yachts, Inc., -- F.4th --, 2024 WL 4163709 (9th Cir. 2024) found that claimants seeking indemnification or contribution are additional claimants to a…more

Indemnification, Insurance Claims, Insurance Industry, Insurance Litigation, Vessels

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David Thom

Arbitration trumps: Bermuda court confirms pro-arbitration approach

If litigation proceedings are commenced in breach of a valid and enforceable agreement to arbitrate, how soon in the proceedings does a defendant need to seek a stay of the litigation? The Supreme Court of Bermuda recently…more

Arbitration, Arbitration Agreements, Bermuda, Dispute Resolution, International Arbitration

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Danielle Valliere

Insurance takes back seat to State’s defense and indemnity obligations under the Tort Claims Act

The New Jersey Appellate Division recently held that when the New Jersey Attorney General’s office is obligated to defend and indemnify a local public entity under the Tort Claims Act (“TCA”), the State must fund the defense and…more

Indemnification, Indemnity, Insurance Industry, Tort Claims Act

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Andrea Vega Travieso

Second Circuit confirms use of third-party releases in Chapter 11 Bankruptcy Plans – Circuit split remains

On May 30, 2023, the United States Court of Appeals for the Second Circuit issued an order affirming a Chapter 11 Bankruptcy Plan that included nonconsensual third-party claim releases in In Re: Purdue Pharma L.P. et al. v. The…more

Bankruptcy Code, Bankruptcy Court, Chapter 11, Commercial Bankruptcy, Creditors

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Travis Wall

California's legislature provides new guidelines and requirements for time-limited demands

A new year inevitably brings changes to existing laws and “time-limited demands” are no exception. Parties and jurists use different names to refer to such demands, including “time limit demands,” “policy limit demands,” or…more

Insurance Industry, Insurance Litigation, Liability Insurance, State Legislatures

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Shain Wasser

California Court of Appeal clarifies Howell and proceeds to publish Audish v. Macias

California’s Fourth Appellate District published its opinion in Audish v. Macias, clarifying the collateral source rule in personal injury cases. The Court built on the foundation provided by Howell v. Hamilton Meats &…more

Bodily Injury, Car Accident, Evidence, Medicare

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Sophie Fletcher Watson

The future of COVID-19 risk and regulatory enforcement: a cross-jurisdictional review

The COVID-19 pandemic has been a global health and economic crisis with devastating effects. For many countries, the focus has shifted to economic recovery and growth. Integral to this is the safety of workers’ physical and…more

Coronavirus/COVID-19, Employer Liability Issues, Health and Safety, Mental Health, Reasonable Accommodation

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Diana Weller

Does a party to litigation have a common law duty to preserve evidence in Florida?

“Spoliation is defined as ‘[t]he destruction, or significant and meaningful alteration of [evidence],’…or ‘the failure to preserve property for another’s use as evidence in pending’ or reasonably foreseeable litigation.” Landry…more

Breach of Duty, Duty to Preserve, Evidence, Spoliation

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Laura Williamson

Arbitration trumps: Bermuda court confirms pro-arbitration approach

If litigation proceedings are commenced in breach of a valid and enforceable agreement to arbitrate, how soon in the proceedings does a defendant need to seek a stay of the litigation? The Supreme Court of Bermuda recently…more

Arbitration, Arbitration Agreements, Bermuda, Dispute Resolution, International Arbitration

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Colin Willmott

The rising specter of BIPA claims in Illinois

Over the past five years, approximately 1,500 lawsuits have been filed asserting claims under Illinois’ Biometric Information Privacy Act (“BIPA”). At its most basic, BIPA sets forth regulations for the collection, use, and…more

Biometric Information, Biometric Information Privacy Act, Data Collection, Data Privacy, Personal Data

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Barnaby Winckler

Disclosure of litigation funding arrangements in collective proceedings: a balancing act

There is a growing trend towards the use of third-party litigation funding (TPLF) in collective proceedings in the UK and globally. The disclosure of TPLF arrangements has recently come under close scrutiny by the Competition…more

Fee Agreements, Fees, UK, UK Competition Appeal Tribunal (CAT)

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Joshua Wirtshafter

The Grieving Families Act’s impact on wrongful death actions in New York

On June 2, 2022, Senate Bill S74A, also known as the Grieving Families Act, passed the New York Senate Assembly and is expected to be signed by Governor Kathy Hochul. Once in effect, the new law will expand recovery rights of a…more

Damages, Economic Damages, Non-Economic Damages, Wrongful Death

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David Wright

The future of COVID-19 risk and regulatory enforcement: a cross-jurisdictional review

The COVID-19 pandemic has been a global health and economic crisis with devastating effects. For many countries, the focus has shifted to economic recovery and growth. Integral to this is the safety of workers’ physical and…more

Coronavirus/COVID-19, Employer Liability Issues, Health and Safety, Mental Health, Reasonable Accommodation

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Camille Zuber

Crisis averted?: Despite deal on longshore strike, legal issues loom

On October 4, 2024 millions of people breathed a collective sigh of relief when the International Longshoremen’s Association (ILA) and the United States Maritime Alliance (USMX) reached a temporary agreement to delay the planned…more

Labor Disputes, Logistics, Longshoremen, Ports, Shipping

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Kristiana Zuccarini

Recent First Department decision revisits duty of care and common law negligence

The Appellate Division of the State of New York, First Department recently reversed a lower court decision, holding that a subcontractor did not owe a duty of care to a plaintiff working on a jobsite and therefore, determined…more

Construction Industry, Contractors, General Contractors, Insurance Industry, Insurance Litigation

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