It's not an uncommon occurrence for an insurance company to encounter a claim where multiple coverage policies could apply. Figuring out which policy is applicable can be as complicated as solving a Rubik's Cube. But with proper planning and a solid game plan — from sorting through the provisions in each policy, to identifying the nature and level of coverage, to pinpointing the applicable jurisdiction, to reviewing the policies for choice of law — you can begin to "turn the squares" toward solving the issue. "Determining the priority of insurance coverage can appear extremely daunting at the outset," says James P. Steele, a member in the Insurance Coverage Practice of Washington, D.C.-based Carr Maloney P.C.. "But in analyzing the big picture and then breaking down the process into manageable, organized steps, the task of solving what seemed liked an impossible puzzle becomes much more feasible." Steele and his colleague William Carter have authored a ready-for-publication article serves as a step-by-step guide to solving complicated insurance coverage issues. The two attorneys have written several articles on insurance-related issues. [10/16/2008]

Recent amendments to the Consumer Product Safety Act of 1972 have established new whistleblower protections for employees of manufacturers, private labelers, distributors, and retailers of consumer products. Eligible employees are now protected from job termination or other forms of retaliation for having raised a consumer product safety complaint with their employer, the Federal Government, or a local state attorney general. Previously, except in the rare event state laws provided a cause of action, such employees could not file a lawsuit and seek damages. Under this new legislation, an employee can file a claim with the U.S. Department of Labor seeking damages and, in the event the Department does not resolve the matter within 210 days, file a lawsuit in court. Unlike in any other federal whistleblower statute, this statute expressly permits the individual to have his or her claim brought before a jury. "These amendments expose a broader scope of businesses to retaliatory complaints than ever before, meaning a huge number of companies now need to be educated on their new responsibilities," says Scott Gross, a partner in the Litigation Department of Wildman Harrold's (Chicago). "For example, a retailer like Best Buy now has to ensure that they have mechanisms in place through which employees can make complaints or raise concerns about consumer product safety, but simultaneously they need to establish policies and training that discourage any type of retaliation against such complaints. It can be a delicate balance for an employer, to comply fully with the new protections by enabling channels for employee complaints, but at the same time enacting measures that minimize the company's legal risk." Gross has been counseling employers on whistleblower issues for more than 10 years and has defended employers in dozens of cases before the U.S. Department of Labor against whistleblower claims pursuant to statutes such as Sarbanes-Oxley and the Atomic Energy Act. He is available to author an article that provides an overview of these new amendments. The article will lend practical advice for companies on how to create their whistleblower policies properly so as to avoid litigation and minimize the risks of exposure should litigation occur.

Despite the U.S. Supreme Court's increasing support for arbitration throughout the U.S. legal system over the last 20 years, the State of California continues to assert itself as an unfriendly domain for the process. Recent bouts between the Supreme Court of California and the U.S. Supreme Court punctuate California's resistance. In Round One, the California Supreme Court refused to order arbitration as called for by the parties' agreement regarding a dispute between a TV judge, Alex Ferrer, and his former lawyer, Arnold Preston. The U.S. Supreme Court overturned the California decision asserting the supremacy of the Federal Arbitration Act's preference for arbitration over a conflicting state law, giving round one to the U.S. Supreme Court. In Round Two — Hall Street Associates v. Mattel — the U.S. Supreme Court held that arbitration awards can only be reviewed by courts on the limited standards set forth in the Federal Arbitration Act. In Cable Connection v. Direct TV, decided in August, the California Supreme Court rejected the U.S. Supreme Court's reasoning in Hall Street for arbitration awards governed by California's Arbitration Act, scoring round two for the California Supreme Court. Round Three is ongoing, says H. Roderic Heard, a member of Wildman Harrold's Executive Committee and a partner in the firm's litigation practice group. "The California Supreme Court's repeated resistance to the finality of an arbitrator's award will continue," says Heard. "For the last 50 years, the U.S. Supreme Court has encouraged arbitration as a private means of dispute resolution, but many states, especially California, have resisted. The dueling will continue." Heard, who teaches Commercial Arbitration and International Arbitration and Dispute Resolution as an adjunct professor at Northwestern and DePaul's law schools, is available to author a bylined article lending an overview of recent cases and the impact that California's resistance to arbitration has on the rest of the country. [10/09/2008]

Governor Arnold Schwarzenegger signed the California Omnibus Sweepstakes Bill into law September 30, imposing new rules and disclosure requirements for sweepstakes. "The law is the result of a multi-state investigation into the practices of Publishers Clearing House, which led to a multi-million dollar settlement against the company," says Dominique R. Shelton, a partner in the Intellectual Property Department of Wildman Harrold LLP (Los Angeles). "That, plus deceptive sweepstakes solicitation practices targeting California's senior citizens which have recently surfaced, motivated state legislators to act." The new law brings California's sweepstakes law more in line with certain aspects of the federal Deceptive Mail Prevention and Enforcement Act, along with laws in Texas and Colorado — all of which require stringent consumer protection measures and disclosures. "There are new requirements for the operation of sweepstakes, specifically with respect to disclosures in entry materials or solicitation materials selling information regarding sweepstakes," says Shelton. She is available to write an article outlining the provisions of the new California law and what sweepstakes companies and other stakeholders must consider. [10/09/2008]

For a long time, patent authorities and the courts have generally sided with innovators, but lately the pendulum has been swinging the other way. "There appears to be a distinct trend within patent offices in the US and elsewhere to make it harder to obtain patents," says Adrian Zahl, a partner with Ridout & Maybee LLP (Ottawa, Ontario). "Courts are also becoming increasingly willing to invalidate patents or to make them harder to enforce. This can have a negative consequence for innovators who rely on patents to recoup their investments in R&D. There are several practical strategies that innovators may employ, such as taking care to ensure the quality of patent applications, and developing patent strategies that are consistent with the legal requirements in the key jurisdictions worldwide." Zahl is available to write an article outlining the current anti-patent shift and what innovators need to know in terms of responding in this environment. [10/02/2008]

Serving as a discovery special master in patent litigation cases presents challenges that are unique to patent disputes. These include: the need to be comfortable with technology and patent law; familiarity with electronic discovery; dealing with an enormous volume of discovery material; managing counsel who tenaciously contest even minute details; striking a balance between traditional written discovery and expert opinions; finding efficient ways to accomplish discovery against third parties; and resolving scheduling impasses created by mountains of expert discovery. "A discovery master is not serving the parties well unless they save money through focused, efficient, collaborative discovery," says Martin Quinn, an arbitrator, mediator and special master with JAMS, The Resolution Experts (San Francisco), who is frequently appointed by federal and state judges to manage discovery in patent cases and other complex lawsuits. "Courts commonly put patent cases on very fast tracks, so neither side has time for a discovery master to dither about a decision. Unlike fine wine, discovery issues do not improve with time, so it's vital that a discovery master understand and use best practices to reach sound, prompt decisions." Discovery masters are appointed by sitting judges to assist with lawsuits that are legally or administratively complex. Quinn, a former trial lawyer with more than 25 years of experience, who teaches mediation as an adjunct professor at Hastings Law School, is available to write an article that outlines the best practices for using a discovery special master in complex patent litigation. [09/18/2008]

The laws of many countries are still playing catch-up with the growth of e-commerce, and nowhere has this been more apparent than in how different courts have ruled regarding the sale of counterfeit goods on eBay. "These cases demonstrate the fragmented state of the law regarding e-commerce as courts attempt to balance the need to take action to prevent blatant infringement with not placing an undue burden on online providers to monitor activity," says Dominique R. Shelton, a partner in the Intellectual Property Department at Wildman Harrold LLP (Los Angeles), who counsels clients on issues involving IP and emerging technologies. Shelton has analyzed two of these recent decisions, one by a French court (LVMH v. eBay) and one by an American court (Tiffany v. eBay) in an article that compares how these two jurisdictions are handling the issue. "The U.S. court recognized the extent to which any marketplace host can be responsible for the behavior of sellers," says Shelton. "While eBay was required to remove counterfeits when notified, the court held that it was ultimately the trademark owner's responsibility to police its trademark. By contrast, the French court held that eBay is liable for the behavior of sellers on its Web site. The French judges classified eBay as a broker, rather than an Internet host, which would have given eBay a degree of immunity." The article is available for publication. [08/28/2008]

Soaring healthcare costs are turning the heat up on disputes between health care providers and insurers, says Hon. P. Oswin ("Os") Chrisman (Ret.) and Cecilia H. Morgan, Esq., both mediators and arbitrators with ADR provider JAMS, The Resolution Experts, in Dallas. "Within the health care industry, fingers are pointing in every which way to explain rising costs. There is a lot of stress on the system and a lot of tension being felt from all sides," Chrisman says. "Doctors point at insurers, as reimbursements are shrinking and denials on coverage have jumped in recent months." It's been five years since 700,000 physicians and state medical groups sued the largest insurers in Texas, claiming they had intentionally obstructed delayed and denied payments and reimbursements to providers. Some individual settlements reached are set to expire this year, and more confrontations may be set to ignite, says Morgan. "Mediation is an approach that can limit the costly courtroom battle and instill proper safeguards to alleviate the pressures for the parties. Taking an early mediation approach is the best route for doctors and insurers alike," she says. Ms. Morgan and Judge Chrisman are available to discuss and write on what every doctor should know when using mediation to address disputes in the healthcare industry. Judge Chrisman served for 13 years in the district courts of Dallas, and was Past Chair of: the Texas Institute of Health Research; Baylor Health Care Systems, Inc.; Baylor University Medical System; and the Mental Health Associations of Dallas County and Texas. Cecilia Morgan, Esq. is a former commercial litigator and frequently resolves healthcare disputes. [08/21/2008]

The nature and operation of the implied warranty of habitability in connection with residential real estate sales contracts, is something that every prospective home buyer and developer should understand, says Steven Welhouse, a real estate attorney at Levenfeld Pearlstein LLC (Chicago). "These warranties exist in every residential real estate contract, but many disputes that arise between developers and buyers are the result of one or both parties not understanding the characteristics of such warranties. When buyers raise issues, it is common for developers to use a variety of methods to attempt to disclaim implied warranties, however, developers must protect themselves from unfounded claims by understanding the factors that constitute a valid disclaimer under most state laws. The problem is that while many of these factors are well-defined, others are often quite vague." This article will focus on these ill-defined factors and discuss those which should not be considered valid, and others which should be more clearly defined by the courts.

In an increasingly litigious society, most healthcare practitioners carry two types of liability insurance. One form, professional liability insurance, covers injuries that occur to patients during the course of treatment. The second type, comprehensive general liability coverage (CGL), insures liability claims related to slips and falls and similar injuries that occur on the property of a healthcare facility. In some instances, the applicable coverage is clear. Often times a grey area exists, however, in circumstances where patients suffer injuries that are akin to a premises liability injury, but which happen, arguably, during the course of medical treatment. "The question of which policy responds to a patient injury depends on the particular facts of each injury and has led to decisions by courts that appear, at first glance, to be inconsistent," says William Carter, a partner in the Insurance Coverage Practice of Washington, D.C.-based Carr Maloney P.C.. "Healthcare professionals would be wise to have both types of policies in place to respond to claims for injuries to their patients." Carter and his colleague James P. Steele have authored a ready-for-publication article that defines the professional liability and CGL policies and provides a recap and analysis of related court rulings. [05/15/2008]

The Durable Power of Attorney for Property (DPAP) is one of the most overlooked pieces of an estate plan, but it is also one of the most useful and essential tools. The main purpose of a DPAP is to allow an individual to appoint someone as his agent to manage his financial assets in the event he becomes physically or emotionally incapacitated. While the two most common methods for dealing with a disabled person's assets are guardianship and the use of a funded revocable trust, a DPAP can be tailored to specifically allow the agent to re-title the principal's assets in the name of the revocable trust in the event of the principal's disability, making it a vital component of any estate plan. "While the DPAP should not be relied on as the sole protection against disability and is not and should not be the sole document in one's estate plan — it is most effective when included in a comprehensive plan," says Stuart Kohn, a partner in the Asset Planning and Preservation Service Group at Levenfeld Pearlstein LLC (Chicago). "At the same time, an estate plan is not complete unless it includes a DPAP, as there are certain situations that only be addressed with a DPAP, short of full guardianship proceedings." Mr. Kohn's article will explain why every comprehensive estate plan should include a DPAP and will discuss the process by which one can be implemented. [04/24/2008]

International businesses are continuing to arbitrate the vast majority of their international disputes in this intensifying global marketplace. There are, perhaps, twenty or so competing sets of rules that can be applied to arbitrations on the international level. "A best practice approach to the rules of arbitration on the global level is essential to ensure efficiency and continued growth of this important dispute resolution process", says Robert B. Davidson, a full-time arbitrator and mediator at JAMS, The Resolution Experts, and Executive Director of JAMS Arbitration Practice. The Vienna Vis Moot Court Competition in Vienna this month used the JAMS International Arbitration Rules for the hypothetical problem argued by over 200 law school teams from all over the world. "The JAMS Rules have several unique features intended to streamline the arbitration process and to meet certain problematic situations encountered with greater frequency in modern arbitration practice," he says. "For example, the suggested JAMS arbitration clause, used in both the international and domestic arbitration rules, adds a key phrase to make it "unmistakably clear" that the parties intended to arbitrate questions of arbitrability in accordance with the U.S. Supreme Court rule established in the case of First Options of Chicago v. Kaplan. They also provide that the arbitrators are to decide whether a contract has been formed at all. These provisions discourage court interference either at an early stage of the proceedings or after an arbitration has been commenced," says Davidson. "The doctrine of First Options has sometimes proven to be a trap for the unwary in cases involving U.S. parties, or in proceedings that require recognition and enforcement of awards in the United States." Davidson is available to write on the importance of various international arbitration rules provisions and on the process generally. [03/27/2008]

As arbitration has grown from a little-used alternative to litigating smaller matters, to a tool now regularly used to settle disputes of $100 million or more, many wonder what implications this growth has for its future. "All this growth has brought us to a real crossroads in the life of large-case arbitration. What lies in arbitration's future is completely dependent on how well we deal with a highly significant result of this growth — the ever-increasing complaint that arbitration is becoming too much like litigation," says John Wilkinson, a mediator with JAMS, The Resolution Experts (New York). Fortunately, says Wilkinson, the core ethos that drives the arbitration community means that, as the use of arbitration grows, it will be able to address the challenge it is simply litigation in another guise. "Arbitrators have the tools to strike the right assertive tone to ensure cases are resolved much less expensively and in much less time than if they had been litigated in court. At the same time, arbitrators know they must be sufficiently patent and restrained to ensure that there is enough of a process — especially discovery and review of evidence — to permit a fair result," says Wilkinson. His article, which outlines how the future of arbitration will address the challenges raised by recent growth, is available for publication. [03/20/2008]

With the recent spate of private equity acquisitions in which the target company's senior management is often so closely involved — it was only a matter of time before the courts were asked to weigh in on how these deals work. "The Delaware Court of Chancery has lately issued a series of decisions that confront the special conflicts and resulting fiduciary issues that frequently arise with private equity MBOs," says Donald J. Wolfe, Jr., a partner in the Corporate Litigation Practice Group at Potter Anderson & Corroon LLP (Wilmington, Del.). Wolfe has written an article analyzing these decisions that is available for publication. He says the court appears to be taking a critical view of private equity MBOs. "The language of these opinions ventures beyond the mere insistence that directors adhere to the standard of an objective and reasonable auctioneer, seeming instead to focus on inherent conflicts of interest arising from management's participation on the sell side. In fact, they appear to reflect a degree of judicial suspicion and scrutiny that, although arguably justified, seems of a sort more typically reserved for circumstances that invoke entire fairness review." Wolfe's article is available for publication. [02/28/2008]

A recent decision by the Second Circuit, welcomed by the defense bar, heightens the evidentiary standard plaintiffs must satisfy in order for a court to certify a putative class of investors. While this ruling appears to be a victory for the defense bar, some plaintiff's lawyers have noted a potential silver lining: Because class certification is becoming entwined with the merits, plaintiffs now feel justified in asking for — and possibly getting — merit-based discovery in connection with their class certification motions. "This may benefit plaintiffs who get to delve into fact discovery sooner, but means that decision on class certification will likely be pushed out later in the life of the litigation," says Lanier Saperstein, a senior associate in the Corporate and Commercial Litigation Practice Group at Allen & Overy LLP (New York). He continues, "Indeed, anecdotal evidence from pending class actions suggest that class certification and summary judgment motions are heading towards being decided roughly at the same time, which is often years into the litigation." This lengthening trend contributes to and exacerbates the problems caused by a parallel trend in class actions, namely, investors increasingly opting out after class certification or settlement and instituting their own actions. Because class certification motions are being pushed out further into the life of litigation, the costs associated with any eventual opt outs increase significantly. Therefore, while plaintiffs and defendants may argue for years about who is the beneficiary of the IPO decision, one thing appears to be clear: The lengthening trend caused by the merging of fact and class discovery will lead to problems caused by the opt out trend, ultimately negatively impact the class action system. Saperstein is available to write an article outlining the details of this decision and its impact on the judicial system. [02/14/2008]