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March 19, 2013
Publication - Employment Litigation, Labor & Employment
The New York City Council continues to grow the chasm that exists between New York City employment law and its state and federal counterparts. Specifically, on March 13, 2013, the council overwhelmingly enacted (by a 43-4 vote) a local law that precludes employers and employment agencies from refusing to consider or hire an applicant because he or she is unemployed, and from posting advertisements that require job applicants to be employed. This comes less than a month after New York City Mayor Michael Bloomberg initially vetoed the legislation, which now is set to become effective on June 11, 2013.
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March 19, 2013
Publication - Bad Faith, Insurance Coverage - Insurance
In D.R. Horton, Inc.—Denver v. Mountain States Mutual Casualty Co., No. 12-cv-01080 (February 25, 2013), another U.S. District Court judge for the District of Colorado determined a liability insured seeking defense costs from its insurer may qualify as a “first-party claimant” for purposes of Colorado’s Unfair Claim Settlement Practices Act, potentially entitling the insured to recover unpaid defense costs, attorneys’ fees in prosecuting the recovery action and two times the unpaid defense costs as a penalty.
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March 19, 2013
Publication - Intellectual Property, Patents
A recent decision from the Delaware District Court held that the composition of matter patent for the drug Baraclude was invalid as obvious. This opinion has drawn immediate attention because it is the first time that a lead compound obviousness challenge has succeeded in a district court since KSR v. Teleflex issued. What this means for inside counsel depends on which side of the aisle you are on, but regardless this decision may provide the beachhead for obviousness attacks where none existed before.
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March 18, 2013
Publication - Insurance Coverage - Insurance
The Washington Supreme Court joined a minority of jurisdictions that hold that insurers may not unilaterally reserve the right to seek reimbursement for defense costs paid in defending non-covered claims through a reservation of rights letter. In National Surety Corp. v. Immunex Corp., the Washington Supreme Court, in a five to four decision, held that insurers defending under a reservation of rights may not seek reimbursement for defense costs from the insured, even if there is a determination that the insured is not entitled to coverage under the policy No. 86535-3 (March 7, 2013). In so holding, the court recognized that, upon a showing of actual and substantial prejudice resulting from an insured’s delayed tender, an insurer could minimize or avoid liability for defense costs.
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March 18, 2013
Press Release - Insurance Corporate & Regulatory, Insurance Coverage, Private Client Services, Real Estate, Subrogation & Recovery
Six attorneys from the firm of Edwards Wildman are joining Cozen O'Connor, in practice areas that include trusts and estates/private client services, real estate, insurance coverage, reinsurance, insurance corporate and regulatory and litigation.
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March 18, 2013
Publication - Electronic Discovery & Practice Advisory Services
The era when a lawyer can competently practice without understanding a client's electronic data is rapidly drawing to a close. New York's Office of Court Administration has recommended amendments to the rules governing preliminary conferences in non-Commercial Division cases that should radically reduce the number of cases where one can stand in front of a judge like Saturday Night Live's fabled unfrozen caveman lawyer, proudly ignorant of electronic discovery issues.
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March 15, 2013
News - Subrogation & Recovery
Vince McGuinness joins a roundtable discussion in Law Practice Today Webzine on the topic of what law firms expect from new lawyers.
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March 15, 2013
Publication - Bad Faith, Insurance Coverage - Insurance
When an insured sues an insurer for bad faith, how much of the claims file maintained by the insurer is discoverable? In a 5-4 decision, the Washington Supreme Court recently weakened insurers’ ability to protect confidential communications with their attorneys in first-party claims where the insured has alleged bad faith. Cedell v. Farmers Insurance Company of Washington, No. 85366-5 (February 22, 2013). The court held that, in the context of a first-party claim for bad faith claim handling and processing, courts must apply a presumption that there is no applicable attorney-client privilege. The court further held that an insurer would be entitled to overcome the presumption by showing that its counsel was providing legal advice as to the insurer’s potential liability and was not acting in the insurer’s “quasi-fiduciary” function. Upon this showing, the insurer is entitled to an in camera review where the trial court will determine if the privilege applies, subject to the insured’s assertions that the privilege does not apply due to an exception, including the civil fraud exception.
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March 14, 2013
Publication
Congress funds a variety of causes to the exclusion of others. That is permissible and necessary. Congress cannot, however, condition its spending on the abandonment of recipients' constitutional rights.
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March 14, 2013
Publication - Employment Litigation, Immigration Policy & Strategy, Labor & Employment
On March 8, 2013, the U.S. Citizenship and Immigration Services (USCIS) issued a new Employment Eligibility Verification Form, Form I-9, and a revised Handbook for Employers, M-274. The main changes to the new Form are that it contains further instructions on how to complete the Form I-9 and also expands the Form itself to two pages. Employers should review the revised Handbook and may begin using the new Form I-9 immediately both for new hires and for work authorization reverification. USCIS is allowing employers two months to transition to the new Form I-9, but beginning on May 7, 2013, employers must use the new Form I-9. Employers do not need to complete a new Form I-9 for current employees with a proper I-9 on file.
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March 14, 2013
Publication - Business, Corporate
On January 23, 2013, the Pennsylvania Benefit Corporation Act (the Act) became effective. The Act authorizes a new type of for-profit business corporation known as a benefit corporation. Pennsylvania is now one of 12 states that have passed laws creating benefit corporations.
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March 12, 2013
Press Release
Thomas Wilkinson, along with his wife Kathleen, will receive the Gerald Abraham Award for Service to Villanova University School of Law at the Villanova Law Alumni Association's annual Alumni Reception and Awards Program on March 21 at the National Constitution Center.
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March 12, 2013
Press Release - Labor & Employment
Lynette will join current committee co-chair Kimya Johnson to spearhead the firm’s efforts to promote diversity and inclusion.
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March 11, 2013
Publication - Subrogation & Recovery - Insurance
It may be surprising to learn that currently there is no federal
law requiring the installation of fire sprinklers in residential
structures. Despite most states and municipalities requiring
fire sprinkler systems in commercial structures, few states
or municipalities have tried to implement this requirement in
residential structures. In 2011, U.S. fire departments responded
to 370,000 home structure fires causing $6.9 billion in direct
damage. According to the 2009 American Housing Survey, 4.6
percent of occupied homes (including multi-unit) had sprinklers,
up from 3.9 percent in 2007.
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March 08, 2013
Publication - Insurance Coverage, Professional Liability Insurance Coverage - Insurance
In Amgen, Inc. v. Connecticut Retirement Plans and Trust Funds, No. 11-1085 (Slip Op. Feb. 27, 2013), the U.S. Supreme Court, in a 6-3 majority opinion (Ginsburg, J.), affirmed the U.S. Court of Appeals for the 9th Circuit’s ruling that a securities class action plaintiff need not prove materiality of alleged misrepresentations or misleading omissions as a prerequisite to class certification under Fed. R. Civ. P. 23. Justices Kennedy, Scalia, and Thomas dissented. Justice Alito concurred with the majority but added a separate and important note (discussed below). The Court’s decision lowers the bar for investors seeking to obtain class certification, which has significant implications for D&O insurers, companies, their Directors and Officers (Ds and Os), and securities fraud plaintiffs alike. The Court’s ruling in Amgen also settles a split among the 2nd, 3rd, 7th, and 9th Circuits. Although the ruling is clearly favorable to securities fraud class action plaintiffs, the four concurring and dissenting justices appear willing to entertain arguments over the continued validity of the fraud-on-the-market presumption, which could drastically alter the landscape for securities class actions.
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March 07, 2013
Publication - Insurance Coverage - Insurance
Following considerable public comment, the Texas Supreme Court revised and issued final approval of new rules providing for expedited trials and dismissal of baseless claims. Despite pleas from various factions, however, the new rules maintain their mandatory nature. The revisions do, however, contain material changes to the Alternative Dispute Resolution provision of new Rule 169 of the Texas Rules of Civil Procedure.
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March 07, 2013
Publication - Health Care & Life Sciences, Technology, Privacy & Data Security - Health Care & Life Sciences
On January 25, 2013, the Office of Civil Rights (OCR) of the Department of Health & Human Services (HHS) published the long-awaited omnibus final regulation governing health data privacy, security and enforcement (Omnibus Rule). The Omnibus Rule is a group of regulations that finalizes four sets of proposed or interim final rules, including changes to the Health Insurance Portability and Accountability Act (HIPAA) Privacy and Security Rules mandated by the Health Information Technology for Economic and Clinical Health (HITECH) Act and proposed in 2010; changes to the interim final breach notification rule; modifications to the interim final enforcement rule; and implementation of changes to the Genetic Information Nondiscrimination Act of 2008 (GINA). The Omnibus Rule goes into effect on March 26, 2013, and compliance is required by September 23, 2013. As expected, the Omnibus Rule did not finalize the May 31, 2011 proposed regulation regarding accounting for disclosures.
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March 07, 2013
News - Government Relations - Cozen O'Connor Public Strategies, Health Care & Life Sciences
Attorneys Mark Alderman, Mark Gallant, Colin Roskey and Howard Schweitzer are highlighted in this article on Cozen O'Connor's growth in the Health Law and Public Strategies Groups.
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March 05, 2013
Publication - Insurance Coverage - Insurance
On February 15, 2013 a Pennsylvania federal district court held that the shipment of defective drywall from China to the United States constituted one “occurrence” for purposes of insurance coverage, and the occurrence took place when the damage caused by the drywall manifested itself in the residences or buildings of the underlying plaintiffs. With this ruling, Pennsylvania joins Virginia as one of the few states to opine regarding the number of occurrences in the Chinese drywall context.
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March 05, 2013
Publication - Intellectual Property, Trademark & Copyright
Brand owners should use a multi-pronged strategy to combat knock-off goods. Although counterfeiting is often perceived as a victimless crime, it has significant economic and reputational costs for brand owners. In 2012, U.S. Customs and Border Protection seized counterfeit goods worth $1.26 billion and shut down 697 websites involved in trafficking counterfeit goods.
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