Publications Archive

There are hundreds if not thousands of articles out there on tips for dealing with difficult opposing counsel. But what if it’s not opposing counsel who is being difficult? What do you do when your client’s personal counsel is the one creating unnecessary strife? Whether you are the assigned defense counsel or the claims professional, you can’t just tell the insured client or their counsel to take a long walk off a short pier, so you have to find a way to make it work. If you are personal counsel, have you examined your own behavior and asked yourself why you are making things more difficult than necessary?

Michelle Arbitrio (Partner – New York) was quoted extensively in the August 22, 2017 issue of Insurance Business regarding an article titled “Bundle Packages Are Potential Landmines for Brokers.” Michelle provided her thoughts regarding potential new liability issues that brokers may face when offering bundle coverages for sale to clients.

From text messages concerning real estate deals to the use to electronic signatures in binding transactions, real estate professionals are waist-deep in digital communications. But are these "smart" shortcuts exposing agents and brokers to professional liability allegations that tech-effected contracts are not valid?

Employers rely on bullies. Bullies push innovation, motivate co-workers and generate business. However, bullying in the workplace creates risks, and employers are facing new liabilities for failing to address bullying.

Bullying is prevalent and comes from all directions. According to the Workplace Bullying Institute, an estimated 27% of Americans report experiencing abusive conduct at work, and 72% report being aware of workplace bullying. Similarly, a survey commissioned by CareerBuilder of full-time employed private sector employees indicated that 28% of employees reported having experienced or were currently experiencing bullying in the workplace.

The phone rings and on the other end is a reporter asking about an incident that just happened involving your company. Would you know how to respond? A crisis or unexpected event that focuses media attention on your firm can be disruptive to your normal business operations and have a real or perceived negative impact upon your company. A detailed crisis communications plan will help you evaluate the scope and level of a crisis, while establishing a uniform communications system and procedures and protocols to help your company deal effectively with an unexpected emergency situation.

The recent Oregon Supreme Court ruling in Yeatts v. Polygon Northwest Co. emphasizes the importance of carefully drafting subcontracts to limit general contractor liability under Oregon’s Employer Liability Law. The court found, in part, that a GC that retains a right to control safety in a subcontractor agreement—even if that right is minimal— opens itself up to liability under the Employer Liability Law.

How has increased reliance on and use of technology affected the legality of real estate transactions? The pervasiveness of technology in the context of real estate transactions, specifically with regard to the distinction between the existence or non-existence of a binding contractual agreement, has increased dramatically over the past few years. From communications concerning purchase and sale of real property via text message to the use of electronic signatures in entering into binding transactions, the influence of technology in this industry cannot be understated. In effect, it has become pertinent to analyze the use of technology in a legal context in order to ensure a comprehensive understanding of the effect these tools can have in many types of transactions.

On August 30, 2018, revised Proposition 65 regulations will take effect impacting many business selling consumer goods and offering services in California. The revisions affect the warnings that manufacturers, distributors and sellers must provide to any California consumer who may be exposed by a business to one or more of the 900 chemicals listed by the State as being "known to cause cancer or reproductive toxicity."

This article summarizes the new requirements and provides guidance to companies seeking to comply with the revised regulations, with the goal of avoiding costly enforcement litigation brought by the State, or by private Attorney General "bounty hunter" enforcers.

What are construction defects, exactly? It depends. In layman’s terms, construction defects are those unexpected conditions of or damages to a property that cause the owners’ additional expense to repair or cause the property to lose value. Common examples include cracked concrete, electrical malfunctions, or plumbing leaks. Severe cases include water intrusion or movement of the property.

California's Office of Environmental Health Hazard Assessment has recently issued further updated regulations related specifically to the chemical, Bisphenol A ("BPA"). OEHHA added BPA in the list of chemicals required under California's Safe Drinking Water and Toxic Enforcement Act of 1986 (referred to as "Proposition 65") in May 2015, and adopted specific warnings for exposures to BPA from canned and bottled foods and beverages on November 30, 2016. BPA is found in the containers of various food and beverage products, including can linings, jars, and bottle seals. Due to the connectivity to food and the potential hazards of ingestion and dermal exposure, OEHHA has established some specific regulations for BPA.

The changing social, technological, environmental and economic landscape has led to increased legal exposure for contractors and real estate developers in California. However, developers can manage the risk and continue to build and develop successful projects with some foresight and careful planning.

Recently, the Supreme Court of Oregon handed down a decision in Goodwin v. Kingsmen Plastering, Inc. with massive procedural implications for all construction defect cases. The decision clarified the often confused and misunderstood question of what statute of limitations period applies to negligence-based construction defect claims in the state of Oregon.

A single construction defect claim often implicates a multitude of defendants. With numerous parties making cross-complaints, the defense of a construction defect claim is often costly, time consuming and, at times, chaotic.

Defendants named in a construction defect claim try to seek indemnity and defense costs from the parties and their insurers, while developer and general contractor defendants often spend much of their time and expense simultaneously focusing on defeating or minimizing the plaintiff ’s claim and attempting to deflect liability and/or
transfer the risk.

Most physicians believe that their prescribing practices will not be investigated. However, a recent article published in the Annals of Internal Medicine highlights consideration of the evolving landscape of pain management with opioid analgesics by practitioners both treating and following patients complaining of chronic non-cancer pain. Taken in conjunction with the recently revised Federation of State Medical Boards (FSMB) Model Policy, physicians who treat patients with analgesic opioids may be more vulnerable than ever to medical malpractice litigation and licensing board actions.

In today's day and age of internet retail shopping, companies and consumers alike rely heavily on search engines and keyword advertising to aid a consumer's search in finding products to purchase. However, on July 6, 2015, the United States Court of Appeals for the Ninth Circuit held that Amazon may have created a likelihood of confusion to customers who were searching for Multi Time Machine Inc.'s manufactured military-style "MTM Special Ops" watches. With this holding, the United States Court of Appeals may have expanded trademark owners' rights in the search engine context.

The Americans with Disabilities Act (ADA) is touted as one of America’s most comprehensive pieces of civil rights legislation. The Act prohibits discrimination and guarantees that people with disabilities have the same opportunities to participate in mainstream American life.

The situation is commonplace: Plaintiffs in a toxic tort case name a score of manufacturers as defendants and list 34 chemical products in their complaint.