Recent Publications - Complex Torts & Product Liability


‘Made in the USA’ Claims: Handle With Care
May 15, 2018 | Marc S. Ullman | Compliance Investigations & White Collar
Marc Ullman published an article in Natural Products Insider entitled, “‘Made in the USA’ Claims: Handle With Care.” The article focuses on how the Federal Trade Commission has increased its enforcement of its “Made in the USA” standards, which states “all or virtually all” of a product must be made/produced in the United States. Click …
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Cyber Insurance: Protection for the New Normal
May 9, 2018 | Shari Claire Lewis | Ada Kozicz | Privacy, Data & Cyber Law
Cybersecurity breaches have become commonplace. In 2017, the global economy incurred an estimated loss of over $450 billion for cyber-related crimes and security breaches. It is no longer a question of whether a business will fall victim to a security breach or malware attack, but only a question of when.  A cybersecurity event can have …
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Majkowski’s Glyphosate Update Published in ABA’s Mass Tort Litigation
April 4, 2018 | Paul V. Majkowski | Complex Torts & Product Liability
Paul Majkowski published an article entitled, “Update on Glyphosate: The Roundup MDL General Causation Daubert Hearings,” in Mass Torts Litigation, a publication of the American Bar Association’s Section of Litigation. The article discusses Judge Vince Chhabria’s comments in a Daubert hearing conducted on general causation as to non-Hodgkin’s lymphoma, which heard from a dozen witnesses. To read …
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New York Extends Time to File Malpractice Claim
February 21, 2018 | Ada Kozicz | David E. Richman | Medical Malpractice Defense | Health Services
Governor Andrew Cuomo has signed a new law, known as “Lavern’s Law,” that extends the amount of time a patient has to file a medical malpractice claim for a missed cancer or malignant tumor diagnosis. Patients now have 2 1/2 years to file a claim from the date the misdiagnosis is discovered by the patient, …
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The Status of Telemedicine Reimbursement
December 20, 2017 | Benjamin P. Malerba | David E. Richman | Ada Kozicz | Health Services
Benjamin Malerba, David Richman and Ada Kozicz wrote an article published in Health eSource, a publication of the American Bar Association’s Health Law Section entitled, “The Status of Telemedicine Reimbursement: States’ Efforts to Incentivize Providers to Utilize Telehealth Technologies.” The article centers on the importance of creating legislation that will provide insurance reimbursement for telemedicine, as a means to …
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Online Business’ Optimism Under Privacy Shield Is Tempered by EU Privacy Challenges Ahead
December 19, 2017 | Shari Claire Lewis | Privacy, Data & Cyber Law
There is good news for U.S. companies operating online, which nowadays, of course, includes virtually every business. The European Commission has published its first annual report on the agreement reached last year by the Commission and the U.S. government to protect personal data transferred from the European Union (EU) to U.S. companies for commercial purposes, …
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Update to In Re: General Mills Glyphosate Litigation
August 31, 2017 | Paul V. Majkowski | Complex Torts & Product Liability
Paul Majkowski published an article in the American Bar Association – Mass Torts Litigation, “Update to In re: General Mills Glyposate Litigation. Click here to read. …
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Asserting Damages for Data Piracy Under the CFAA
June 20, 2017 | Shari Claire Lewis | Privacy, Data & Cyber Law | Professional Liability | Complex Torts & Product Liability
Data often is the lifeblood of a business. When a database is breached in one way or another, the results can be devastating—especially if the data falls into the hands of a competitor. Many companies suffering this kind of loss turn to litigation. Perhaps in an effort to obtain federal court jurisdiction, they may assert …
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Glyphosate and the Many Ramifications of an IARC Classification
May 30, 2017 | Complex Torts & Product Liability
As is frequently the case, a regulatory development or finding will serve as the impetus for activity in the realm of toxic tort. From the plaintiff’s perspective, the underlying science has been given the patina of credibility by the regulatory action; from the defense view, the regulatory action does not elevate the underlying science to …
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Hidden Risks In Practice Acquisitions And Joint Ventures
May 25, 2017 | Complex Torts & Product Liability | Health Services
There is a potential compliance “blind spot” associated with what many in the healthcare industry would regard as ordinary practice acquisitions and joint ventures involving hospitals and other provider organizations. This area of possible vulnerability arises from the payment of consideration for what are sometimes insufficiently delineated assets of the target or partner entity. If …
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Strober’s “New York Lead-Paint Case Update” in Environmental Claims Journal
May 10, 2017 | Complex Torts & Product Liability
This article examines a variety of recent lead-paint decisions issued by New York courts, from trial level, to appellate, to the state’s highest court. As these cases suggest, lead-paint complaints against landlords and property owners are likely to continue to be filed in New York courts for some time to come. Click here to read …
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Second Circuit Rejects Secret-Cookie Suit
April 21, 2017 | Privacy, Data & Cyber Law | Professional Liability | Complex Torts & Product Liability
By now, anyone who uses a cell phone or other method to access the Internet—virtually everyone—has heard of “cookies” intended to track their online activities. Many individuals who object to tracking take steps to block cookies through privacy settings on their web browsers and other technologies. However, in a decision with important implications for those …
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Multiple Sales of Tabletop Torches Were Multiple Occurrences
April 21, 2017 | Complex Torts & Product Liability | Insurance Coverage
The U.S. District Court for the Southern District of Ohio has ruled that multiple sales of tabletop torches amounted to separate occurrences for purposes of triggering the torch seller’s excess insurance policy. The Case Several lawsuits were filed against Big Lots Stores, Inc., by plaintiffs in Illinois, New Jersey, Pennsylvania, and Texas alleging that they had …
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Richman Authors Chapter in NYSBA Book
April 3, 2017 | Complex Torts & Product Liability | Medical Malpractice Defense
David Richman’s paper, “Motions in Limine and Opening Statements,” was published in the New York State Bar Association’s book entitled, “Preparing For and Trying the Civil Lawsuit,” which, according to the foreword, was created to “inform both the aspiring trial attorney and the seasoned practitioner of the ‘how to’ of litigation practice.” David’s chapter discusses …
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Principles of Judicial Estoppel May Constrain the Assignability of Legal Malpractice Claims to Former Litigation Adversaries
March 15, 2017 | Professional Liability | Complex Torts & Product Liability | Insurance Coverage
In a recent decision, the United States District Court for the Southern District of New York considered whether principles of judicial estoppel may prevent an assignee of a legal malpractice claim from prevailing on a claim against his former adversary’s attorneys. Molina v. Faust Goetz Schenker & Blee, LLP, 2017 U.S. Dist. LEXIS 13568 (S.D.N.Y. …
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Online and Social Media Defamation in Today’s Age
February 21, 2017 | Privacy, Data & Cyber Law | Professional Liability | Complex Torts & Product Liability
Twitter, Facebook, Instagram, and other forms of social media are becoming the dominant communication tools in today’s political and social discourse, often entirely supplanting traditional media’s role in public commentary. Social media’s emerging role, combined with the extreme divisions so evident in our country, have caused the courts to consider application of pre-Internet legal standards …
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New Nanotechology Rule and Handling Toxic Torts
January 31, 2017 | Complex Torts & Product Liability
After a wait of more than 10 years, on January 12, 2017, the EPA issued its final rule relating to reporting requirements under TSCA for nanoscale chemicals, being the agency’s first time in requiring such reporting. We will not attempt to set out the particulars of the reporting requirements (e.g., what substances are reportable under the rule …
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Self-Proclaimed Publisher of Fake News Sites Loses Circuit Appeal
December 21, 2016 | Privacy, Data & Cyber Law | Professional Liability | Complex Torts & Product Liability
Fake news has been in the news a great deal recently, with some wondering how to address it. The recent decision by the U.S. Court of Appeals for the Second Circuit in Federal Trade Commission v. LeadClick Media , 838 F.3d 158 (2d Cir. 2016), may provide a way, at least in some instances. In …
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Sixth Circuit’s Decision on Privacy Claims Over Data Breaches
October 18, 2016 | Professional Liability | Complex Torts & Product Liability | Intellectual Property
Data breaches such as the one Yahoo recently revealed (500 million accounts!) get the big headlines. In response, large companies double down on their efforts to protect the security of their data. But small to midsize businesses often fail to appreciate the risk of a data breach to their own business. They may believe that …
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Speaking With: Len Rivkin
August 22, 2016 | Commercial Litigation | Complex Torts & Product Liability
Leonard L. Rivkin, the founding partner of Rivkin Radler, has decades of experience as national trial counsel in high profile, landmark, and precedent-setting cases. Len served as lead counsel on the Agent Orange class action suit and was national coordinating counsel for a major asbestos manufacturer in claims against the United States and the company’s …
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FTC Issues Privacy Tool, Guidance for Health-Related Mobile Apps
June 21, 2016 | Professional Liability | Complex Torts & Product Liability | Intellectual Property
Only days after the Federal Communications Commission (FCC) adopted a notice of proposed rulemaking to establish privacy guidelines applicable to Internet service providers (ISPs),1 the Federal Trade Commission (FTC) took two actions on the privacy front that will affect a smaller, but fast growing, industry: developers of mobile health applications. Given the pervasive use of …
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FCC Proposed Rules That Impact Everyone’s Online Privacy
April 19, 2016 | Professional Liability | Complex Torts & Product Liability | Intellectual Property
“Broadband Internet access service” (BIAS) is the essential conduit for the conduct of our daily personal and private lives, without which all Internet activity comes to a stop. Indeed, the Federal Communications Commission recently referred to BIAS as “the most significant communications technology of today.”1 Nevertheless, because BIAS is the road on which Internet traffic …
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New York Labor Law Bulletin
March 4, 2016 | Complex Torts & Product Liability | General Liability
First Department Holds that Worker Is Entitled to Partial Summary Judgment under Labor Law § 240(1) For Injuries Sustained in Fall from Prime Mover In Somereve v. Plaza Constr. Corp., 2016 N.Y. App. Div. LEXIS 1231 (1st Dep’t 2016), plaintiff was injured when operating a prime mover to hoist a load of bricks onto a …
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The EU-U.S. Data Protection Dispute and Possible Resolution
February 18, 2016 | Professional Liability | Complex Torts & Product Liability | Intellectual Property
Early in February, the European Commission and the U.S. government agreed on a new framework for transatlantic data flows, which they are referring to as the “EU-U.S. Privacy Shield.” Lawyers advising clients with an online presence (i.e., almost all lawyers and almost all clients) typically have had little reason to be concerned about the agreement, …
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Standing to Assert Claims for Online Privacy Breaches
December 15, 2015 | Professional Liability | Complex Torts & Product Liability | Intellectual Property
Many believe that we are on the precipice of a deluge of litigation—both individual and multiparty/class action—concerning how an individual’s data is handled and the remedy, if any, if that data is misused or wrongfully disclosed. A case recently argued before the U.S. Supreme Court involves the intersection of the Internet and privacy laws and …
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Fifth Amendment Does Not Extend to ‘Digital Person’
October 20, 2015
An acrimonious marital breakup has been known to bring out the worst in some people. Those battles increasingly are fought on the technology field, thereby leaving courts to determine complex personal rights issues in the context of grown-ups behaving badly.1 In another such case, Crocker C. v. Anne R.,2 the Supreme Court, Kings County, addressed …
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Circuit Clarifies Time Limit for Computer Hacking Suits
August 18, 2015
Computer hacking historically has been seen as the province of lowlife criminals existing in the darkened recesses of some faraway place looking to make a dishonest buck. However, as individuals increase their online presence and, thereby, their digital vulnerability, unauthorized access to a person’s computers and to email and social media accounts is increasingly being …
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In the Courts
July 31, 2015
“Suit” Includes EPA’s CERCLA Enforcement Proceedings, Texas Supreme Court Holds In response to a question certified to it by the U.S. Court of Appeals for the Fifth Circuit, the Texas Supreme Court has ruled that the term “suit” in a general liability insurance policy included superfund cleanup proceedings conducted by the Environmental Protection Agency (“EPA”) under …
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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 Overturns ‘Threat’ Conviction, But Leaves Mens Rea Standard Unclear
June 16, 2015 | Professional Liability | Complex Torts & Product Liability | Intellectual Property
The U.S. Supreme Court has ventured into the world of violent online speech. On June 1, in Elonis v. United States,1 the court overturned a defendant’s criminal conviction for communicating threats on Facebook. The court ruled that a mens rea standard of negligence was insufficient to allow the conviction to stand, but it did not …
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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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‘Sign-in Wraps’ Face the Judicial Microscope in New York
April 21, 2015
There are, generally speaking, four different kinds of online contracts that businesses use to obtain consent via the Internet from consumers: browsewrap, clickwrap, scrollwrap, and sign-in wrap agreements. Browsewrap exists where an online host dictates that assent is given merely by using the site. Clickwrap refers to the assent process by which a user must …
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Managing Product Liability in the Chemicals Sector
March 31, 2015 | Complex Torts & Product Liability
Paul Majkowski, a Partner in the Firm’s Litigation & Appeals Practice Group, participated in a mini-roundtable article entitled, “Managing Product Liability in the Chemicals Sector.” Please click the link below to view the Article. Adobe Reader is required to view the bulletin. If Adobe Reader is not installed on your PC, click here to download …
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Carnaby v. Goodyear Offers a New Jurisdictional Twist
February 25, 2015 | Appeals | Complex Torts & Product Liability
AMERICAN BAR ASSOCIATION – SECTION OF LITIGATION – MASS TORTS   The Carnaby v. Goodyear Tire and Rubber Co. action involving purported toxic workplace exposures in France presents something of a new strategic paradigm for the U.S. jurisdictional restrictions evolving out of the Daimler/Kiobel/Goodyear Dunlop line of cases. Carnaby v. Goodyear Tire and Rubber Co., No. …
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Tech Tools Are Increasingly Used to Disseminate Notice
February 17, 2015 | Professional Liability | Complex Torts & Product Liability | Intellectual Property
Federal Rule of Civil Procedure 23 requires two forms of class notice. Rule 23(c)(2) requires notice to a potential class member that a class has been certified and substance of the class claims. Rule 23(e) requires notice that a settlement has been negotiated, which will require court approval, and the steps that each potential class …
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International Litigation of Product Liability Claims
October 31, 2014 | Appeals | Complex Torts & Product Liability
Paul Majkowski and Lawrence Han authored an article entitled, “International Litigation of Product Liability Claims: Korea,” which was published in the November 2014 issue of DRI For the Defense. Please click the link below to read “International Litigation of Product Liability Claims.” Adobe Reader is required to view the bulletin. If Adobe Reader is not installed on your PC, …
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Circuit’s Decision Clarifies Law Of Contributory Cybersquatting
October 28, 2014 | Privacy, Data & Cyber Law | Professional Liability | Complex Torts & Product Liability | Intellectual Property
Nearly 15 years ago, Congress passed the Anticybersquatting Consumer Protection Act (“ACPA”).[1] The ACPA amended the federal trademark law known as the Lanham Act by adding two new causes of action aimed at cybersquatting.[2] Under the ACPA, a person may be civilly liable “if … that person has a bad faith intent to profit from …
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Court Addresses Bitcoin, Other Novel Online Technology Issues
August 19, 2014 | Professional Liability | Complex Torts & Product Liability | Intellectual Property
Online technology, as this column frequently has noted, presents numerous challenges to attorneys during litigation,[1] while managing their firms and marketing their services,[2] and in trying to keep up with the newest legal developments and rulings.[3]  A recent decision in a case of first impression by Judge Katherine B. Forrest of the U.S. District Court …
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Website Terms of Use: Recent New York Rulings
June 17, 2014 | Professional Liability | Complex Torts & Product Liability | Intellectual Property
On a nearly daily basis, each of us is asked or asks others to agree to be bound by “terms of use” or “terms of service” (TOS) as a condition of using an Internet website or obtaining goods or services offered through a website. Whether or not TOS are enforceable continues to be a question …
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First Amendment Protects Search Engine Results
April 15, 2014 | Professional Liability | Complex Torts & Product Liability | Intellectual Property
In an ironic twist, China’s largest search engine, Baidu, has successfully argued that it was entitled to First Amendment protection in regard to its search engine results in the United States, which excluded statements by the plaintiffs, a group of New York residents who “advocated” for “the Democracy movement in China.”   In a question of …
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The assertion of a breach of contract claim against an attorney for excessive billing does not result in the waiver of the attorney-client privilege..
March 31, 2014 | Professional Liability | Complex Torts & Product Liability | Insurance Coverage
The assertion of a breach of contract claim against an attorney for excessive billing does not result in the waiver of the attorney-client privilege as to successor counsel Waiver of the attorney-client privilege often arises in attorney-client disputes, where “the defendant asserts a claim that in fairness requires examination of protected communications… [t]he key to …
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Defamation Claims Come of Age on the Internet
February 18, 2014 | Professional Liability | Complex Torts & Product Liability | Intellectual Property
All of the elements necessary for defamation claims seem to have coalesced on the Internet. There is the ease of posting content, including videos, on blogs and chat sites; the ubiquity of tweets, email, blogs and text messages; the pervasive abandonment of personal privacy; and the ability for almost anyone to quickly set up a …
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NY High Court Rejects Cause of Action for Medical Monitoring
January 14, 2014 | Appeals | Complex Torts & Product Liability
AMERICAN BAR ASSOCIATION – MASS TORTS & DEVELOPMENTS In a December 17, 2013, decision, the New York Court of Appeals refused to adopt an independent equitable cause of action for medical monitoring by a four-to-two vote in Caronia v. Philip Morris USA, Inc., No. 227 (N.Y. Dec. 17, 2013). The decision resolved a split among …
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The litigation of a claim for attorneys’ fees in small claims court does not have a preclusive effect on a subsequent claim for legal malpractice.
December 31, 2013 | Professional Liability | Complex Torts & Product Liability | Directors & Officers Liability | Insurance Coverage
Generally, the law in New York is that “a determination fixing a defendant’s fees in a prior action brought by the defendant against the plaintiff for fees for the same legal services which the plaintiff alleges were negligently performed, necessarily determines that there was no legal malpractice.” Breslin Realty Development Corp. v. Shaw, 72 A.D.3d …
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Accessing Email Evidence on Company Computers
December 17, 2013 | Professional Liability | Complex Torts & Product Liability | Intellectual Property
Work-related email accounts are ubiquitous and often are used by employees for personal reasons. Employees also may use their own personal email accounts on employer provided resources ? with or without the permission of the employer.  Many cases have considered the right of an employer to access an employee’s email accounts from the employee’s work …
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New York Court holds that parents may assert legal malpractice as a defense to fee claims arising from attorneys’ representation of their children.
November 30, 2013 | Professional Liability | Complex Torts & Product Liability | Directors & Officers Liability | Insurance Coverage
Traditionally in New York, law guardians appointed in custody disputes were often viewed as taking on a role similar to that of a guardian ad litem, advocating for what they believed to be the best interests of the child, rather than advocating for the outcome desired by the child. Because these law guardians were often …
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The Role of the Internet in the Conduct of Litigation
October 15, 2013 | Professional Liability | Complex Torts & Product Liability | Intellectual Property
Much has been written (in this column and elsewhere) regarding lawyers’ adoption of social media and other Internet enabled applications for such diverse purposes as discovery, advertising, client communication,  research and the like.  Indeed, due to the proliferation of portable devices, including laptops, smartphones and tablets, whether in their offices or not, lawyers now rely …
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Expert Testimony Required To Show Breach of The Standard of Care Where Attorneys Withdrew As Counsel While Arbitration Was Pending
September 30, 2013 | Professional Liability | Complex Torts & Product Liability | Insurance Coverage
In legal malpractice actions, in order to establish entitlement to relief plaintiffs are generally required to demonstrate that their attorneys were negligent?that is, that they breached their duty of care. While no expert evidence is required to show that the attorney breached his or her duty of care where the “ordinary experience of the fact …
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Email Can Constitute Binding Enforceable Stipulation of Settlement
August 20, 2013 | Professional Liability | Complex Torts & Product Liability | Intellectual Property
Plus ça change, plus c’est la même chose.[1] It is a lesson that lawyers should take to heart when incorporating technology in their every day best practices.  Technology may have changed the speed, immediacy, and even the formality of communication, but the effect of the communication will be determined by its content as interpreted by …
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A Party Who Voluntarily Discontinues An Underlying Action and Foregoes An Appeal Does Not Abandon His Or Her Right To Pursue A Claim …
July 31, 2013 | Professional Liability | Complex Torts & Product Liability | Insurance Coverage
A party who voluntarily discontinues an underlying action and foregoes an appeal does not abandon his or her right to pursue a claim for legal malpractice. While a party who agrees to dismiss an appeal pursuant to a settlement agreement may, under some circumstances, be precluded from pursuing a legal malpractice claim against his or …
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