Settlement negotiations can be tricky and knowing what you can and cannot ethically say can mean the difference between a valid and invalid settlement. According to a 2009 survey by Professor Andrea Schneider, director of the Dispute Resolution Program at Marquette University Law School, a sizable minority of litigation attorneys incorrectly answered that they do not need to correctly respond to a direct question about settlement authority. See Art Hinshaw, Peter Reilly & Andrea Kupfer Schneider, Attorneys and Negotiation Ethics: A Material Misunderstanding, 29 Negotiation Journal 265, 269 (2013). According to the survey, 38.14% of the ninety-seven (97) participating litigation attorneys incorrectly responded that they did not have to admit the amount of their settlement authority if directly asked. Id. at 269-270. Pursuant to the American Bar Association’s Rules on Professional Responsibility, an attorney’s valuation of a claim and a party’s settlement intentions are enumerated exceptions to what constitutes a material statement in negotiations. Id. at 268. However, the specific limits of authority that a client has given a lawyer to settle a case is considered a material fact. Id. Therefore, an attorney must truthfully respond when directly asked about his or her settlement authority.The survey also found that 22.9% of the participants incorrectly responded that you do not need to correct an opponent’s misimpression of a material fact based on an erroneous statement. Id. at 275. According to the RULES OF PROFESSIONAL RESPONSIBILITY, an omission of a material fact can be unethical in certain cases. Id. at 272. Most importantly, the law of fraud for both tort and contract law requires correction of a misimpression. Id. (Citing RESTATEMENT (SECOND) TORTS, §551(2)(e) and comment l 1977; RESTATEMENT (SECOND) CONTRACTS, §161(b) 1981). Although attorneys generally do not have a duty to correct a misunderstanding of the facts by their opposing counsel, they do if it is based on an erroneous statement.
Nelson Mandela’s life serves as a model for others, South Africa, Africa, and America and serves as confirmation that one courageous man can make the world a better place.
Our profession must continue to embrace the spirit of inclusion that was demonstrated by the life of Nelson Mandela.
Nelson Mandela, the first black president of South Africa, is remembered by members of the DRI Diversity Committee community as a courageous leader and the symbol of a new era for his country. He was a South African anti-apartheid revolutionary, lawyer committed to the legal profession and philanthropist who served as President of South Africa from 1994 to 1999. He was South Africa's first black chief executive, and the first elected in a fully representative democratic election. The fact that Mandela could emerge from 27 years of prison with so much strength and commitment to changing his country, end the injustice of apartheid, to become the moral center of his nation, as it rebuilt itself, is a testimony to the strength of his human spirit. The father of an independent South Africa will be sorely missed.
Various groups look at trailing years and report the highest risk area of practice. It just makes you want to stay in bed some mornings. The latest areas to stub toes are real estate (20%); personal injury (15%); family law (12%); estate, trust and probate (10%); and collection and bankruptcy (9%). Oddly, solos have the highest percent of the claims and the percent’s drop sharply as the firm size goes up. The level of experience fools you also because the new and the old are not the leaders of the pack in claims. Instead the biggest tranche of claims (35%) falls with those having 11 to 20 years of experience.
You know the legal rules and you follow them. You use common sense and have good social skills with clients. You still get named in a legal malpractice action. It can and does happen to good lawyers. The ABA recently put the average number of claims at three per career and at a risk of 4% to 17% of a claim in any year. ABA Profile of Legal Malpractice Claims: 2008-2011.
Like other professions, you cannot guarantee a result (and remember that half of each case loses as a rule) and sometimes an adverse result ends up as a claim despite no errors or issues – just a loss. I again encourage you to use all the methods available to you to control and reduce those possibilities. Bring your own stats down by all means available.
In 2012, a major outbreak of fungal meningitis was traced to drugs compounded by New England Compounding Centers. The outbreak included approximately 750 confirmed cases and has resulted in 64 deaths to date. Tragedies of this scale have often been the impetus for major changes to federal food and drug laws in the past; the FDCA itself was enacted in 1938 in response to a tragedy in which the use of an improperly manufactured drug (elixir sulfanilamide) led to over 100 patient deaths.Drug compounding is a process of combining different ingredients to create customized pharmaceutical products for patients. The practice predates the rise of mass-produced drugs in the United States, and was essentially unregulated by FDA for 50-plus years after passage of the FDCA.
Given these extensions, FEMA sought to clarify the difference between the proof of loss extensions and the time to sue over a coverage dispute. In a November 21, 2013 memo, James A. Sadler, Director of Claims of the National Flood Insurance Program, noted that the statute of limitations to sue on flood insurance claims is 1 year pursuant to 42 U.S.C. § 4072. While FEMA has the authority to extend the proof of loss deadline, see 44 C.F.R. § 61.13(d) and 44 C.F.R. § 61 Appendices A(1) and A(2), Section VII(D), and Appendix A(3), Section VIII(D), it does not have the authority to extend the statute of limitations in the event of a coverage dispute. That statute of limitation is set by Congress and can only be changed by Congress.
On October 1, 2013, FEMA announced that it was extending the proof of loss deadline by six months for flood insurance policy claims due to Superstorm Sandy. Normally, policyholders have sixty days from the date of loss in which to provide proof of loss. However, given the extensive damage caused by Sandy, FEMA extended the deadline. On November 9, 2012, FEMA extended the deadline for 1 year. FEMA extended it again October 1, 2013 creating a new deadline of April 28, 2014.
A famous Englishman once said, “America and Britain are two nations separated by a common language.” Was it George Bernard Shaw? Or was it Oscar Wilde? English literature enthusiasts have not settled the issue of the identity of the person to whom the quote is attributable. However, truer words have not been spoken, especially when it comes to dealing with insurance terminology.Perhaps you think a “prop” is something you would find on the set of the movie studio. Maybe a "slip" is where you have your boat parked at the Marina. The fact of the matter is the way we use insurance terms in the United States differs greatly from the way they are used in the United Kingdom. Anyone whose job involves procuring insurance from the London market (especially from underwriters at Lloyd’s), or defending those who do the same, must be familiar with various insurance terms as they are used in the United Kingdom. Even skilled insurance professionals and attorneys may be confused by the wordings used in the London market.
A California District Court has ruled in favor of a Muslim employee of Abercrombie & Fitch who claimed Abercrombie failed to accommodate her religious beliefs when it banned her from wearing her hijab. The plaintiff, 19-year-old Umme-Hani Khan, wears a traditional Muslim head scarf, called a hijab, in observation of her religion. She wore the garment to her hiring interview, as well as throughout her four month employment period for the company’s Hollister store in San Mateo, California, where she was an “impact associate” working primarily in the stockroom. Khan’s local supervisors permitted her to wear the hijab so long as it matched the company’s colors. However, when a visiting district manager saw the hijab, he informed the local supervisors that Khan was not in compliance with the company’s “look policy.” She was then asked if she could remove the garment while at work and was told that if she did not, she would be taken off schedule. Khan denied the request, stating it was part of her religious observance. She was thereafter terminated.The Equal Employment Opportunity Commission attempted to resolve the dispute with Abercrombie, but rejected the company’s affirmative defense of undue hardship and brought suit alleging discrimination on the basis of religion in violation of Title VII of the Civil Rights Act of 1964. The act prohibits discrimination based on religion and requires employers to accommodate religious beliefs or practices of employees unless doing so would impose an undue hardship.
Lawyers tend to be a bit on the independent side and don’t like to be managed as a general proposition. Despite all the rules we must follow, they sometimes rationalize: “Those do not apply to me” or “I am not that person.” Most certainly do not like a peer talking to them about their own individual problems.
Take a high stress practice that is deadline driven, and overlay the usual problems of today’s society, and you have lawyers with problems. It is a given. Every office has this situation every week to some degree. Do not ever ignore it, or back down from a big elephant lawyer saying “Leave me alone.”
A Lone Wolf, a lawyer with a substance abuse problem or with emotional issues, can bring down an entire firm by their sole actions or inactions. So, you cannot afford to avoid the issue. You must become your brother’s keeper. Aside from losing a good lawyer with issues, you have a huge financial stake at risk and pretending it is not there will just not work.
Pay attention to your daily world (“situational awareness” is the tactical training term):
No matter how hard the NFL tries to get away from the concussion lawsuits, they won’t go away. Most recently former Chicago Bears quarterback Bobby Douglass and former Northwestern player John Cornell is suing the NFL and helmet manufacture Riddell. On November 4, 2013, the two former players filed suit alleging concussion-related injuries resulting from their time on the field.
Douglass, 66, was quarterback for the Chicago Bears from 1969 to 1975. He later went on to play for the San Diego Chargers, New Orleans Saints and Green Bay Packers. Cornell, 66, is a Northwestern graduate that participated in two NFL training camps with the New Orleans Saints.
The former players claim they suffered multiple concussions and sub concussive brain injuries that put them at risk for brain damage and chronic traumatic encephalopathy (CTE). CTE is a degenerative brain disease commonly found in athletes who have a history of repeated brain trauma.
The lawsuit accuses the NFL of negligence and fraudulent misrepresentation. The former players argue that the league knew about the harmful effects of concussions yet failed to warn players. More so, they claim that the NFL falsely told retired players that there was no evidence correlating on-field injuries to long-term brain damage. The former players say that the helmet manufacturer, Riddell, negligently failed to warn players that their helmets wouldn’t protect them from the type of on-field injuries they sustained.
Douglass’ attorney said “Mr. Douglass gave his blood, sweat and tears to the game and he now needs the league to step up and care for him.”
As much as the NFL tries to move passed the concussion lawsuits, it’s not ending. In August 2013, the NFL reached a $765 million settlement with over 4,500 former players to settle a class action for concussion-related injuries. Senior U.S. District Judge Anita Brody still needs to hold hearings to determine whether the agreement will be approved. Either way, the impact of that settlement is unclear on Douglass and Cornell’s lawsuit. It is likely that this lawsuit will be consolidated with the class action suit.
This blog was posted today on the Sports & Entertainment Law Blog. Click here to read the original entry.
Food labeling class actions continue to plague food manufacturers and retailers, with the Northern District of California being the favored forum for these claims. Indeed, in The New Lawsuit Ecosystem: Trends, Targets and Players (Oct. 2013), the U.S. Chamber Institute for Legal Reform identified food labeling class actions brought by plaintiffs, public interest groups, and attorneys general as one of the primary emerging liability threats facing American businesses. One of the favorite allegations of such claims centers on the use of “all natural” or similar words on food labels. Very often, a plaintiff alleges that a product contains ingredients from genetically modified soybean or corn, so the product allegedly cannot be considered “natural.” With California’s liberal consumer protection laws, these claims often survive motions to dismiss, with courts reasoning that plaintiffs adequately pled that reasonable consumers will read “all natural” labels and conclude that the product does not contain genetically modified or other allegedly unnatural ingredients. E.g., Parker v. J.M. Smucker Co., No. C 13-0690 SC (N.D. Cal. Aug. 23, 2013) (denying motion to dismiss claims that vegetable oils were not “all natural”).Though not from the Northern District of California, another recent federal court decision from that state offers some hope to defendants in these actions. In Pelayo v. Nestle USA, Inc., No. CV 13-5213-JFW (AJWx) (C.D. Cal. Oct. 25, 2013), the court dismissed an “all natural” labeling action. That plaintiff alleged that a number of pasta products should not bear the “all natural” label because they contain synthetic xanthan gum and soy lecithin. Thus, according to that plaintiff, the labels would be reasonably likely to deceive the public under California consumer protection laws.
On November 13-15, DRI will be hosting its Sexual Torts seminar in San Diego. The program is top-notch, featuring nationally-known attorney Mark Geragos and Penn State victims’ advocate Dora McQuaid. This seminar is designed to educate defense counsel, insurance professionals, in-house litigation specialists and others involved in the evaluation and defense of sexual torts actions.
Whether as defense counsel or as a board member of a nonprofit, at some point many of us have dealt with allegations of sexual misconduct. These situations are often sordid, complex and emotionally difficult. No matter your area of expertise, it’s prudent to have an understanding of the issues surrounding claims of assault, molestation and unwelcome sexual conduct, especially how to prevent such claims and respond when they arise.
I am told business management consultant Joseph M. Juran later suggested the principle and named it after Pareto. Apparently it is one of those business school concepts founded in math from the law of the vital few, and the principle of factor sparsity and it states that, for many events, roughly 80% of the effects come from 20% of the causes. Hey, I went to Law School because I was lousy in math. How does this relate to my law firm’s practice?
I must admit that I never knew the name of the rule known as The Pareto Principle, which I had often called the 80/20 rule. Susan Cartier Liebel, the Founder and CEO of Solo Practice University®, recently used the phrase in an article for ALPS (professional liability carrier) advocating better use of one’s time for marketing and business matters. It seems Italian economist Vilfredo Pareto observed in 1906 that 80% of the land in Italy was owned by only 20% of the population; he further developed the principle by also observing that 20% of the pea pods in his garden contained 80% of the peas.
In a recent opinion, the State Bar Court of California found an attorney not guilty of charging an unconscionable fee because the attorney’s actions did not contain an element of fraud or overreaching. The case, In the Matter of Breyon Jahmai Davis, concerned a newly admitted attorney who, it was alleged, improperly charged legal fees in two matters.
California State Bar Rules Attorney’s Fees Not Unconscionable Because No Element of Fraud
On June 18, 2013, the West Virginia Supreme Court of Appeals issued its opinion in Cherrington v. Erie Insurance Property and Casualty Co., 745 S.E.2d 508 (W. Va. June 18, 2013). The opinion expressly reversed previous West Virginia jurisprudence through the Court’s holding that defective workmanship causing bodily injury or property damage is an “occurrence” under a commercial general liability (CGL) insurance policy.
The fundamental concept is that the reptile brain is conditioned to favor safety and survival. Therefore, if plaintiff's' counsel can reach the reptilian portion of the jurors' brains, they can influence their decisions; the jurors will instinctively choose to protect their families and community from danger through their verdict. Thus, the focus of the plaintiff’s case is on the conduct of the defendant, not the injuries of the plaintiff. The jurors are not interested in plaintiff’s injury, even when severe, according to the theory. Rather, the only truly effective way to engage jurors is to demonstrate how the defendant's conduct endangers the jurors and their families.
Reptile strategy has taken the plaintiffs' bar by storm. The Reptile theory asserts that you can prevail at trial by speaking to, and scaring, the primitive part of jurors' brains, the part of the brain they share with reptiles. The Reptile strategy purports to provide a blueprint to succeeding at trial by applying advanced neuroscientific techniques to pretrial discovery and trial.
There have been a number of attempts in the past 15 to 20 years to significantly increase the use of alternative dispute resolution (ADR), particularly mediation, by parties to civil and commercial disputes. Several law schools now offer comprehensive ADR courses, and courts regularly certify mediators to help facilitate expedited case resolution. Likewise, judges presiding over class action or mass tort/MDL litigations regularly schedule mediation proceedings at or before the initial case management conference.According to BTI's "Litigation Outlook 2014" survey, 60.7 percent of clients expect to see a jump in litigation matters, yet resolution rates are expected to reach nearly 40 percent. These statistics, coupled with findings from AlixPartners' "Litigation and Corporate Compliance Survey," that 84 percent of corporate legal departments are trying several ways to lower legal costs, including resorting to alternative dispute resolution (ADR), indicate that counsel should quickly hone mediation and negotiation skills. Short of enrolling in a class at one's local law school or signing up for a one hour CLE on the topic, a practicing attorney has several avenues to take to improve her ADR skills. One such avenue is attending the 2014 DRI Women in the Law Seminar to take advantage of the Seminar's Mediation/Negotiation Workshop. This interactive Workshop includes sessions on both ADR and the art of negotiating, and is designed for both in-house and outside counsel. In addition to this groundbreaking Workshop, the Seminar as a whole promises to offer both practical and networking sessions aimed at enhancing the practicing attorney's total being.
It is well known that NCAA rules prohibit student-athletes from profiting off their name while in school and violators of this rule risk the loss of NCAA eligibility (for student-athletes) and potential sanctions (for member institutions), but now, some current student-athletes are in a position to receive a damages award stemming from the commercial use of their image, even though they are still enrolled in school. The NCAA has thus far declined to comment on whether current student-athletes will be entitled to collect damages without risking their eligibility until after the terms of the settlement are revealed. However, last year, Texas A&M quarterback Johnny Manziel likely set a precedent that will allow these current NCAA student-athletes to recover damages without jeopardizing their eligibility.
Last Thursday, EA Sports and College Licensing Company reached a preliminary settlement in the "Ed O’Bannon" class action lawsuit over the use of college athletes' names, images, and likenesses. The terms of the settlement have not been disclosed, but reports suggest that the figure could be upwards of $50 million. Not surprisingly, EA Sports announced that it will no longer produce its popular “NCAA Football” franchise beginning in 2014. If the settlement is approved, more than 100,000 former and current student-athletes may be eligible for varying amounts of compensation depending on the specifics of each class member’s claim, including the prevalence of the individual in the game.
The decision came after defendant; Ernst & Young LLP appealed the district court’s decision denying its motion to compel arbitration of state wage and hour claims brought by its former employee, Michelle Richards. The district court ruled that the defendant had waived its right to arbitration by failing to raise the agreement as a defense early in litigation. However, plaintiff Richards’ action was consolidated with other former employees’ claims at a later date.
On August 21st, the U.S. Court of Appeals for the Ninth Circuit in Richards v. Ernst and Young held that an employer’s arbitration agreement could be enforced, despite any limitation on joint or class actions.
On September 10, 2013, the Environmental Protection Agency (“EPA”) released draft rules titled “Standards of Performance for Greenhouse Gas Emissions from New Stationary Sources: Electric Utility Generating Units,” which for the first time proposes to set new carbon emission standards for newly constructed power plants. The new rule proposes to limit carbon dioxide (“CO2”) emissions from fossil fuel and natural gas fired power plants constructed after the rule goes into effect. It will only apply to power plants that sell more than one-third of their potential electric output and more than 219,000 megawatt-hours (“MWh”) net-electrical output to the grid on a three year rolling average basis. (EPA, “Regulatory Impact Analysis for the Proposed Standards of Performance for Greenhouse Gas Emissions for New Stationary Sources: Electric Utility Generating Units” p. 1-1) (“Regulatory Impact”).Newly constructed fossil fuel fired power plants would have two options to comply with the proposed rule. They could limit their CO2 emissions to 1,100 lb CO2/MWh per year, or phase in the reductions over a seven year period if they can meet a rolling average of between 1,000 and 1,050 lb CO2/MWh per year. (Regulatory Impact, p. 1-3). In order to comply with the new standards, fossil fuel fired power plants would likely have to employ a technology known as carbon capture and sequestration (“CCS”) which “scrubs carbon dioxide from their emissions before they reach the plant smokestacks. The EPA predicts that the proposed rule will provide an incentive for the research and development of this new technology that will lead to greater CO2 emission reduction and more cost effective technology. (Regulatory Impact, p. 1-3, 1-4)