Recent Publications - Appeals


Credit Card Fraud Insurance Case Highlights Barriers to Suits Against Brokers
May 4, 2018 | Evan H. Krinick | Appeals
Four years ago, the New York Court of Appeals issued its decision in Voss v. Netherlands Ins. Co., 22 N.Y.3d 728 (2014), which some thought might lead to more and more insurance brokers being sued by policyholders alleging that brokers had not obtained sufficient insurance or appropriate policies for them. Several recent cases—including by the U.S. …
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Failure to Cooperate in Suspected Fraud Case Can Doom Insured’s Claim
March 1, 2018 | Evan H. Krinick | Appeals
After a policyholder submits a claim to an insurance company, the insurer investigates to determine whether to pay the claim, as the insurer is permitted to do under its insurance policy. On occasion, after an insurer has begun to investigate a claim, it may come to believe that the claim is fraudulent, or at least …
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The One Thing Employers Need to Know for This H-1B Season
February 22, 2018 | Henry M. Mascia | Employment & Labor | Corporate
The H-1B visa program has come under intense public scrutiny over the last year. In response to perceived abuses in the H-1B program, President Trump issued the “Buy American, Hire American” executive order, which directed the Department of Homeland Security (DHS) to advance policies to help ensure H-1B visas are awarded to only the most-skilled …
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A Warning Signal for Auto Insurers From the Second Circuit
January 4, 2018 | Evan H. Krinick | Appeals
Twenty-five years ago, in Riordan v. Nationwide Mutual Fire Ins. Co., 977 F.2d 47 (2d Cir. 1992), the U.S. Court of Appeals for the Second Circuit ruled that New York General Business Law §349—one of the most powerful consumer fraud provisions of New York law—was applicable to insurance companies’ interactions with policyholders. In Riordan, the …
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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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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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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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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 | Insurance Coverage | Appeals
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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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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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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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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When Licensed Professionals Commit Insurance Fraud
May 1, 2015
Insurance fraud is committed not only by people who set fire to their homes for the insurance money or who lie about “missing” property that was in their “stolen” cars. Doctors and lawyers?licensed professionals?also commit insurance fraud. They risk the usual penalties, including potential jail time, as well as the loss of their ability to …
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From the Courts
May 1, 2015 | Insurance Coverage | Appeals
Plaintiff’s Statements to Social Security Administration Doom His ADA Discrimination Claim, Tenth Circuit Rules After the plaintiff in this case allegedly suffered a workplace injury, he sought and obtained Social Security disability benefits on the ground that he was unable to work. While the plaintiff was representing to the Social Security Administration that he was …
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From the Courts
April 1, 2015 | Insurance Coverage | Employment & Labor | Appeals
U.S. Supreme Court Reverses Decision Finding that Collective Bargaining Agreements Created Right to Lifetime Contribution-Free Health Care Benefits The plaintiffs in this case had worked at, and in 1996 and 1998 had retired from, the Point Pleasant Polyester Plant in Apple Grove, West Virginia. During their employment, the plaintiffs were represented in collective bargaining by …
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Recent Developments In Business Litigation
March 31, 2015 | Appeals
Michelle Bholan, Michael Sirignano and Frank Tiscione co-authored an article for the Tort Trial & Insurance Practice Law Journal entitled, “Recent Developments In Business Litigation.”  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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RICO Actions Fight No-Fault Insurance Fraud
March 31, 2015 | Appeals
Michael A. Sirignano and Frank P. Tiscione published an article entitled, “RICO Actions Fight No-Fault Insurance Fraud,” in the Spring 2015 issue of the ABA Tort Source, a publication of the Tort Trial & Insurance Practice Section. Click here to read the article. …
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New York’s Top Court Rules that Water Damage Exclusion Barred Coverage and Rejects Plaintiffs’ Interpretation of Ensuing Loss Protection
March 6, 2015 | Insurance Coverage | Appeals
The New York Court of Appeals, in Platek v. Town of Hamburg, has reversed an appellate court’s decision and ruled that a water damage exclusion in a homeowners’ insurance policy precluded coverage for a claim that the insureds’ basement was flooded after a water main ruptured.  In so ruling, the Court also rejected the plaintiffs’ …
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Challenging Fraud by Employers in Workers’ Compensation
March 6, 2015 | Insurance Coverage | Appeals
Workers’ Compensation insurance carriers face a variety of employer schemes intended to defraud them out of insurance premiums in one way or another. After briefly discussing the requirements of New York’s Workers’ Compensation Law (WCL), this column explores some of the methods disreputable companies sometimes use to avoid their obligations. It concludes with a discussion …
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From the Courts
March 1, 2015 | Insurance Coverage | Appeals
U.S. Supreme Court Rules that Time Spent to Undergo Antitheft Security Screening is Not Compensable under the FLSA Integrity Staffing Solutions, Inc., a company that provides warehouse staffing to Amazon.com throughout the United States, required its employees to undergo a security screening before leaving the warehouse at the end of each day. During this screening, …
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New Jersey Legislators Seek to Expand Data Breach Notification
February 27, 2015 | Intellectual Property | Appeals
New Jersey legislators advanced a bill to expand notification requirements in the event of a data breach affecting New Jersey residents. The bill, Assembly No. 3146, passed on December 15, 2014, by a vote of 75–0 and was referred to the Senate Commerce Committee where it has not yet been addressed. The Assembly bill seeks …
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Carnaby v. Goodyear Offers a New Jurisdictional Twist
February 25, 2015 | Complex Torts & Product Liability | Appeals
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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From the Courts
February 1, 2015 | Insurance Coverage | Appeals
Plan Administrator Did Not Err In Requiring Plaintiff to Provide Objective Evidence of Her Fibromyalgia The plaintiff in this case alleged that her health began to deteriorate beginning in early 2009, with symptoms that included debilitating pain and fatigue. By the end of that year, according to the plaintiff, these symptoms forced her to leave her …
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N.J. Supreme Court to Decide Breadth of Insurance Fraud Act
January 11, 2015 | Insurance Fraud | Insurance Coverage | Commercial Litigation | 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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ERISA and Insurer Fraud Suits Against Health Care Providers
January 5, 2015 | Insurance Coverage | Appeals
One of the significant legal issues facing an insurance company that brings a  federal lawsuit to recover allegedly improper payments that it has made to a  health care provider under an employee benefit plan is whether the carrier’s  complaint is preempted by the federal Employee Retirement Income Security Act of  1974 (ERISA). A finding of …
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Craft a Stronger Defense by Distinguishing Parody from Satire
December 31, 2014 | Appeals | Intellectual Property
“Parody” is a technique used by artists in various forms of entertainment, from comedians to radio disc jockeys to authors. “Parody,” in the copyright sense, generally involves using someone else’s copyright-protected work and results in copyright infringement, absent a license for the use. In some cases, however, an infringer can successfully claim “fair use” as …
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McAloon co-authors article for ABA’s Tort Trial & Insurance Practice Law Journal
December 31, 2014 | Appeals
Sean McAloon, a member of the Litigation & Appeals Practice Group, was a contributor to Recent Developments in Property Insurance Law, which has been published in the 2015 Annual Survey of the American Bar Association Tort Trial & Insurance Practice Law Journal. Please click the link below to view the Article. Adobe Reader is required to …
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From the Courts
December 1, 2014 | Insurance Coverage | Appeals
Company Is Sanctioned for Failing to Issue a Timely “Litigation Hold” in ERISA Cases Foot Locker, Inc., was sued on June 23, 2006 and again on November 30, 2006 with respect to the conversion of its retirement plan from a “defined benefit” pension plan to a “cash balance” plan. The June 23, 2006 complaint alleged …
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State Legislatures Tackle Insurance Fraud
November 7, 2014 | Insurance Coverage | Appeals
In an effort to combat insurance fraud, state legislatures across the country have passed a wide variety of bills this year that their governors have signed into law. While many other bills failed to make it to a governor’s desk for one reason or another, some that have been introduced may yet become law. Despite …
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