Recent Publications - Appeals


In Term of Transition, Court Sides With Insurers
August 21, 2017 | Evan H. Krinick | Appeals
It was a term of transition for the New York Court of Appeals, with Associate Judge Eugene Pigott Jr., retiring at the end of 2016, Associate Judge Rowan Wilson joining the Court in February 2017, Associate Judge Sheila Abdus-Salaam’s death in April 2017, and Associate Judge Paul Feinman joining the Court at the end of …
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Rulings Obtained by Preet Bharara Highlighted Insurance Fraud Problem
May 4, 2017 | Appeals
Over nearly eight years as U.S. Attorney for the Southern District of New York, Preet Bharara became recognized as a powerful prosecutor in many areas, including government corruption and white-collar crime. Another subject for which he certainly deserves mention is his strong record helping to fight insurance fraud in New York. Much can be learned …
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What Trump’s “Buy American and Hire American” Executive Order Means for Your Business
April 20, 2017 | Corporate | Commercial Litigation | Appeals
On April 18, 2017, President Trump issued an executive order entitled “Buy American and Hire American.” The Order states that the Executive Branch’s official policy is “to rigorously enforce and administer the laws governing entry into the United States of workers from abroad,” in an effort “to create higher wages and employment rates for workers …
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Social Media Is Shining Light on Fraudulent Insurance Claims
March 6, 2017 | Appeals
My January column, “Insurers Using Technology to Fight Insurance Fraud,” N.Y.L.J. Jan. 5, 2017, discussed various new forms of technology that insurance companies are using to fight insurance fraud. These efforts are producing results for insurers—and, in appropriate instances, for federal, state, and local prosecutors—in the battle against insurance fraud. This month’s column highlights a …
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Insurers Using Technology to Fight Insurance Fraud
January 5, 2017 | Appeals
Insurance fraud has been estimated by some to be as large as an $80-billion-per-year problem. See, e.g., Coalition Against Insurance Fraud, “By the numbers: fraud statistics.”1 To fight insurance fraud, insurance companies, working hand-in-hand with their lawyers, have begun to adopt new kinds of technology. These tools—ranging from social media to data analytics—are being used …
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Whistleblowers Play Key Role in Fight Against Federal Health Insurance Fraud
November 4, 2016 | Appeals
The federal False Claims Act (FCA)1 is a powerful tool in the fight against fraud involving federal health insurance programs such as Medicare and Medicaid. Indeed, one of the greatest areas of FCA success is in the health-care industry. From 1987 to 2015, the federal government recovered more than $31.1 billion in health-care-related FCA actions.2 …
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Ruling Boosts Fight Against Criminal and Civil No-Fault Fraud
September 2, 2016 | Appeals
In a civil case involving claims of insurance fraud, the fact-finder is properly instructed to consider factors beyond the formal indicia of ownership in determining the actual ownership of a medical services professional corporation (PC) for purposes of examining the PC’s entitlement to payment from an insurance carrier of claims assigned to the PC by …
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Six Rulings Range From Asbestos Claims to No-Fault Reimbursement
August 22, 2016 | Appeals
The six significant insurance law decisions issued this past term by the New York Court of Appeals covered a wide range of issues. Five of the cases were decided by a unanimous Court, with a dissent (by Judge Eugene M. Fahey) occurring only in one.1 Four different judges wrote an opinion for the Court (Judge …
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Companies with H-1B and L-1 Employees Are Subject to On-Site Audit — Are You Prepared?
August 8, 2016 | Corporate | Commercial Litigation | Appeals
When an employer sponsors an employee for an H-1B or L-1 visa, the employer agrees to comply with on-site compliance reviews.  The United States Citizenship and Immigration Services (USCIS), which conducts such on-site compliance reviews through the Fraud Detection and National Security (FDNS) directorate, will often visit an employer unannounced and will not typically reschedule …
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When Can a State Prosecute a Multistate Insurance Fraud?
July 8, 2016 | Appeals
Recent examples of criminal insurance fraud in New York1 and elsewhere across the country2 highlight the continuing nature of the insurance fraud problem, despite significant efforts by local and state prosecutors and insurance companies themselves to combat it. Increasing sophistication on the part of criminals, and increased resources available to them, is helping to make …
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Permissible Questions to Ask about Job Applicant’s Immigration Status
July 7, 2016 | Appeals | Commercial Litigation | Corporate
The Office of Special Counsel for Immigration-related Unfair Employment Practices (“OSC”) at the U.S. Department of Justice recently issued Technical Assistance Letter (“TAL”) regarding employer compliance with the anti-discrimination provision of the Immigration and Nationality Act (“INA”).  The OSC concluded that an employer does not violate anti-discrimination laws by 1) refusing to hire all applicants …
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L-1 Visa for Intracompany Transferees
June 2, 2016 | Corporate | Commercial Litigation | Appeals
An L-1 visa permits multinational companies to transfer qualifying employees from their foreign office to their United States office or to the office of its parent, branch, subsidiary, or affiliate in the United States.  L-1 visas allow multinational companies to facilitate their expansion and to help establish an office in the United States. L-1 visas …
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Unusual Finding of “Rehabilitation” After Insurance Fraud Sentence
May 6, 2016 | Appeals
Individuals and businesses engaging in insurance fraud can face significant civil penalties under various state and federal laws, including in appropriate cases under the federal Racketeer Influenced and Corrupt Organizations Act. The financial penalties that can result, however, may not truly be a deterrent for judgment-proof defendants. Criminal laws—with the possibility of prison time—clearly can …
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O-1 Visa: Individuals with Extraordinary Ability or Achievement
May 2, 2016 | Corporate | Commercial Litigation | Appeals
A foreign national with extraordinary ability in the sciences, arts, education, business, or athletics can obtain an O-1 visa to enter the United States and work in their field of expertise.  Due to the annual numerical cap set by Congress on the number of workers that can obtain an H-1B visa for workers in specialty …
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McAloon co-authors article for ABA’s Tort Trial & Insurance Practice Law Journal
April 5, 2016 | Appeals
Sean McAloon, a member of the Appeals Practice Group, was a contributor to Recent Developments in Property Insurance Coverage Litigation, which has been published in the Winter 2016 issue of the American Bar Association Tort Trial & Insurance Practice Law Journal. Click here to read the Article.   …
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Not Answering Material Questions at EUOs Can Doom Coverage
March 4, 2016 | Insurance Coverage | Appeals
Examinations under oath (EUOs) are an important investigative tool used by insurance carriers to uncover fraudulently filed claims and to commit claimants to their story on the record. EUOs look like depositions but generally do not follow the rules that govern depositions. For example, a witness who refuses to answer questions at a deposition can …
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N.J. Supreme Court to Decide Breadth of Insurance Fraud Act
January 8, 2016 | Appeals
The New Jersey Supreme Court has agreed to hear Allstate Ins. Co. v. Northfield Medical Center,1 which has consequences for insurers across the country seeking to deter insurance fraud schemes intended to avoid the prohibition on the corporate practice of medicine. The issue before the court is whether a health-care lawyer (who was not admitted …
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Employee Benefit Plan Review – From the Courts – January 2016
January 1, 2016 | Insurance Coverage | Appeals
Plaintiff’s Failure to Show Employer Knew She Was Working Overtime Without Pay Dooms Her FLSA Claim The plaintiff in this case was employed as a personal trainer and group fitness instructor at Equinox South Beach, a health and fitness club in Miami Beach, Florida. The plaintiff claimed that Equinox had violated the federal Fair Labor …
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Sentencing and Restitution Awards in Insurance Fraud Cases
November 6, 2015 | Appeals
As this column regularly observes, insurance companies frequently use civil litigation as a tool to fight insurance fraud,1 including fraud involving life insurance policies.2 Insurance fraud, of course, also is a crime,3 and prosecutors often bring criminal actions against those who commit insurance fraud. Generally speaking, a person convicted of insurance fraud faces a potential …
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Dioxin in the Courts
October 31, 2015
New Jersey Group Files FOIA Suit Against EPA Relating to Diamond Alkali Superfund Site A lawsuit has been filed in the U.S. District Court for the District of New Jersey against the U.S. Environmental Protection Agency (“EPA”) under the federal Freedom of Information Act (“FOIA”). The plaintiff is seeking agency records related to the proposed …
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Dioxin Developments
October 31, 2015
EPA May Be Moving Toward Superfund Designation of Hackensack River The EPA has issued a preliminary assessment (“PA”) of the Lower Hackensack River in Bergen and Hudson Counties, New Jersey, that suggests that it may be moving to designate it as a Superfund Site. The Study The portion of the Lower Hackensack River that is …
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Dioxin: Legislative Developments
October 31, 2015
N.Y. Bill Proposes Ban on Triclosan A bill has been introduced in the New York State Senate that would ban the use of triclosan in cleaning and personal care products. Ban Proposed New York State Senator Tim Kennedy (D-Buffalo) has introduced legislation, S.6070, that, if enacted, would ban the use of triclosan or any chemical …
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From the Courts
October 1, 2015 | Insurance Coverage | Appeals
Divorced Wife Was Not an “Eligible Spouse” Entitled to Survivor Benefits under Ex-Husband’s Pension Plan, Eleventh Circuit Rules The plaintiff’s husband was a participant in the El Paso Corporation Pension Plan, under which he received retirement benefits beginning in 1987. The plaintiff and her husband divorced in 2011, and he died about eight months later. After …
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Dioxin Developments
September 30, 2015
U.S. News & World Report Article Highlights “Endocrine-Disrupting Chemicals” An article entitled “From DDT to BPA: How Do Endocrine-Disrupting Chemicals Affect Our Health?” has been published by U.S. News & World Report. The article, by Betul Hatipoglu, M.D., a staff member in the Department of Endocrinology, Diabetes and Metabolism at Cleveland Clinic’s main campus, begins …
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The Science of Dioxin
September 30, 2015 | Complex Torts & Product Liability | Appeals
Texas Panel Recommends Against San Jacinto River Cancer Cluster Studies A panel convened by the Texas Department of State Health Services has recommended that there should not be any studies to determine if there are cancer clusters near the San Jacinto River. The panel determined that there were insufficient cancer diagnoses to conclude that they …
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Dioxin in the Courts
September 30, 2015
N.Y. Appeals Court Rejects CERCLA Preemption Argument in Love Canal Case Litigation over Love Canal, one of the “seminal” dioxin sites in the country, continues, as an appellate court in New York has issued an appeal in a case addressing a preemption issue under the federal Comprehensive Environmental Response, Compensation, and Liability Act. Background The …
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From the Experts
September 30, 2015
We are featuring our second edition of our “From the Experts” section.  This month the column addresses a critical issue regarding dioxin toxicity, the differentiation among dioxin congeners, expressed in the TEQ, or toxic equivalency quotient. – Jim Aiosa, Editor Dioxin Concentration Data:  TCDD (and Other Dioxins) vs. TEQ written by Michael E. Ginevan, Ph.D. and Deborah …
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Denying Coverage Where Fraud Occurred
September 4, 2015
More than 30 years ago, in 1984, a divided New York Court of Appeals decided in Barker v. Kallash that a person who committed an illegal act of a serious nature should not be able to profit from that wrongdoing.1 By 1997, the court, in Manning v. Brown, seemed to have no doubt about this …
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From the Courts
September 1, 2015 | Insurance Coverage | Appeals
Oral Complaints to Employer Alleging FLSA Violations Could Serve as Basis for Retaliation Claim, Court Rules For more than 15 years, the plaintiff in this case worked as a truck driver for William C. Wernicki Trucking Co., a Connecticut company owned by Ena Wernicki that provides mail-hauling services pursuant to several contracts with the U.S. …
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Dioxin Developments
August 31, 2015
Professor Awarded Grant to Investigate Possible Gender Specific Neurodegenerative Disease Link to Prenatal Chemical Exposure University of Massachusetts Amherst professor Sandra Petersen has received a two-year, $419,000 grant from the National Institute of Environmental Health Sciences (“NIEHS”) to investigate whether there is a gender-specific neurodegenerative disease link to prenatal chemical exposure. Dr. Petersen, a professor …
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Dioxin: Legislative Developments
August 31, 2015
Minnesota Congressman Introduces Bill to Extend Deadline of 1991 Agent Orange Act Congressman Tim Walz (D-MN) has introduced the Agent Orange Extension Act of 2015, which would extend the original deadline of the Agent Orange Act of 1991 (the “AOA”) – September 30, 2015 – for two more years. The AOA established a presumption of …
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The Science of Dioxin
August 31, 2015
Scientific Paper Finds that Exposure to Agent Orange in Vietnam Did Not Result in Persistent Transgenerational Exposure through Human Milk A review article published in the scientific journal Birth Defects Research, entitled “Agent Orange Exposure and 2,3,7,8-Tetrachlorodibenzo-p-Dioxin (TCDD) in Human Milk,” has concluded that exposure to Agent Orange in Vietnam did not result in “persistent …
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Dioxin in the Courts
August 31, 2015 | Complex Torts & Product Liability | Appeals
Federal Circuit Court Rejects Request to Broaden VA Regulation on Herbicide Exposure for Vietnam Veterans Who Served Near Korean DMZ The U.S. Court of Appeals for the Federal Circuit has rejected a request to broaden a regulation issued in 2011 by the Department of Veterans Affairs (“VA”) that provides a presumption of herbicide exposure for …
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Dissenting Opinions Highlight Split Among Exiting Judges
August 24, 2015
The Court of Appeals issued seven principal insurance law decisions this past term.1 Four decisions affirmed the rulings below, two reversed, and one modified. Five were in favor of insurance companies and two in favor of policyholders. Two of the seven were unanimous, one was decided by a vote of four-to-one, and four had at …
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New York’s Top Court Rules That Computer Fraud Coverage Applies To Unauthorized “Hacking,” But Not To Authorized Users Who Supplied Fraudulent Data
August 3, 2015
New York’s Top Court Rules That Computer Fraud Coverage Applies To Unauthorized “Hacking,” But Not To Authorized Users Who Supplied Fraudulent Data The New York Court of Appeals, New York’s highest court, has ruled that an insurance agreement that provided coverage for “a fraudulent entry of Electronic Data or Computer Program” into the insured’s computer …
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From the Courts
August 1, 2015 | Appeals | Insurance Coverage
U.S. Supreme Court Says that Fiduciary’s Duty of Prudence Involved Continuing Obligation to Monitor Investments and Remove Imprudent Ones In 2007, several individual beneficiaries of the Edison International 401(k) Savings Plan, a defined-contribution plan, filed a lawsuit on behalf of the plan and all similarly situated beneficiaries against Edison International and others. The plaintiffs sought to …
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From the Experts
July 31, 2015 | Complex Torts & Product Liability | Appeals
Guest article for the Dioxin newsletter written by Michael E. Ginevan, Ph.D. and Deborah K. Watkins, M.S. Texas Health Department Report on Cancer Occurrence in East Harris County: An Expert Analysis Residents near the San Jacinto River Waste Pits (“SJRWP”) Superfund site expressed concern to the Texas Department of State Health Services (“DSHS”) about a …
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Dioxin Developments
July 31, 2015 | Complex Torts & Product Liability | Appeals
Legislators Announce New Push for “Blue Water” Vietnam Vets U.S. Senator Kirsten Gillibrand (D-N.Y.) and two members of the House of Representatives are pushing to pass legislation to make Navy veterans from the Vietnam War known as “Blue Water” vets who claim that they were exposed to Agent Orange eligible to receive disability and health …
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International Dioxin Developments
July 31, 2015 | Complex Torts & Product Liability | Appeals
Monsanto Empanels Group to Review IARC Classification of Glyphosate Earlier this year, the International Agency for Research on Cancer (“IARC”) classified the herbicide glyphosate as “probably carcinogenic to humans” (Group 2A). Now, Monsanto is reportedly forming a panel of scientists to review the analysis of the IARC, the specialized cancer agency of the World Health …
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The Science of Dioxin
July 31, 2015 | Appeals | Complex Torts & Product Liability
Paper Finds Loss of Tiparp Increased Sensitivity to Dioxin Toxicity and Lethality A paper published in The Journal of Biological Chemistry has concluded that the loss of the mono-ADP-ribosyltransferase, Tiparp, increased sensitivity to dioxin-induced steatohepatitis and lethality. Tiparp is an aryl hydrocarbon receptor (“AHR”) repressor, but its role in dioxin toxicity has been unknown. Now, …
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The TSCA Modernization Act of 2015: Assuring High Quality Science
July 31, 2015
With the Toxic Substances Control Act (TSCA), the primary federal chemical safety law, approaching its 40thyear, all of its constituents (industry, consumers and regulators) are in agreement that it needs to be modernized, albeit with some disagreement as to the particular contours of such reform. Present Legislative Status Earlier attempts at TSCA reform having failed …
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Court of Appeals Continues To Extend No-Fault ‘Preclusion’ Rule
July 2, 2015
A decision issued by the New York Court of Appeals early in June extends application of the court-created “preclusion” rule in no-fault insurance cases, which provides that an insurer’s failure to timely pay or deny a claim results in an insurer being precluded from interposing a defense against payment of the claim, except where the …
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From the Courts
July 1, 2015 | Insurance Coverage | Appeals
Court Dismisses Wage-and-Hour Claims against Wal-Mart The plaintiff in this putative class action alleged that, during the time she had been employed by Wal-Mart Stores, Inc., as a pharmacist, she took the home study and test portions of the APHA Immunization Certification Training Course. The plaintiff contended that the training course was “directly related” to …
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Dioxin Developments
June 30, 2015
VA Expands Disability Benefits for Air Force Personnel Exposed to Agent Orange on C-123 Aircraft The Department of Veterans Affairs (“VA”) has published a new regulation that expands eligibility for some benefits for a select group of Air Force Veterans and Air Force Reserve personnel who were exposed to the herbicide Agent Orange through “regular …
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International Dioxin Developments
June 30, 2015
IARC Classifies 2,4-D in “Group 2B” The International Agency for Research on Cancer (“IARC”), the specialized cancer agency of the World Health Organization, has evaluated the alleged carcinogenicity of the herbicide 2,4-dichlorophenoxyacetic acid (“2,4-D”) as well as insecticides gamma-hexachlorocyclohexane (“lindane”) and dichlorodiphenyltrichloroethane (“DDT”). A 26-member working group from 13 countries convened by the IARC Monographs …
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The Science of Dioxin
June 30, 2015
European Food Safety Authority Seeks Dioxin Risk Assessment for Feed and Food The European Food Safety Authority (“EFSA”), following a call from the European Commission, has issued a request for a “scientific statement on the health based guidance value” for dioxins and dioxin-like polychlorinated biphenyls (“dl-PCBs”). A new EFSA scientific statement reviewed what it characterized …
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From the Courts
June 1, 2015 | Insurance Coverage | Appeals
Court Limits Prejudgment Interest on Plaintiff’s Award to Federal Interest Rate A jury reached a verdict in favor of the plaintiff in this case and against Pfizer, Inc., on her claims of discrimination and retaliation based on her disability under Title I of the Americans with Disabilities Act (ADA) and the Oregon Rehabilitation Act. The jury awarded …
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International Dioxin Developments
May 31, 2015
U.N. and Viet Nam Announce Conclusion to Environmental Remediation Program Viet Nam’s Office of National Steering Committee and the U.N. Development Programme (“UNDP”) in Viet Nam have announced that dioxin-contaminated soil has been removed from the Phu Cat airbase in the Binh Dinh province. The project was implemented in 2010 with more than US$5 million, …
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The Science of Dioxin
May 31, 2015 | Complex Torts & Product Liability | Appeals
French Study Finds No Dioxin-Breast Cancer Link French researchers have found no association between estimated dietary dioxin exposure and breast cancer risk among a group of women studied. A research article published in Breast Cancer Research has found no association between estimated dietary dioxin exposure and breast cancer risk among the so-called “E3N cohort,” an …
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In The Courts
May 31, 2015
Texas County Appeals in San Jacinto River Case Harris County, Texas, has filed an appeal in Harris Co. v. International Paper, a case involving allegations of contamination of the San Jacinto River. As alleged, the Pasadena Mill, owned by Champion Paper, disposed of dioxin-laced paper mill waste in holding pits created on the banks of …
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