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The Common Interest Doctrine and the Investigation of First-Party Claims
It is essential for parties to be able to determine with a high degree of certainty whether or not communication will be protected from disclosure by the attorney-client privilege or the work-product doctrine. As the Supreme Court observed, “an uncertain privilege ' is little better than no privilege at all.” Upjohn Co. v. United States, 449 U.S. 383, 393 (1981).
As we noted in an article earlier this year, a recent case in New York state court, National Union Fire Insurance Co. v. TransCanada Energy, USA, Nos. 650515/2010, 400759/2011, 2013 WL 4446917 (N.Y. Sup. Ct. Aug. 15, 2013), aff'd 981 N.Y.S.2d 68, 69'70 (N.Y. App. Div. 2014), determined that the documents under review were not privileged, and went on to observe in dicta that the common interest doctrine would be inapplicable in a circumstance where there was no pending or reasonably anticipated litigation. That comment in TransCanada has the potential to raise uncertainty regarding the scope of protection in the context of the investigation and adjustment of insurance claims, while blurring the lines between attorney-client privilege, on the one hand, and work-product protection on the other. This article reviews the basic principles underlying each form of protection, addresses application of the common interest doctrine to those underlying protections, and discusses concepts key to the application of these protections and the common interest doctrine during the investigation of first-party insurance claims.
Bankruptcy Sales: Finding a Diamond In the Rough
There is no efficient market for the sale of bankruptcy assets. Inefficient markets yield a transactional drag, potentially dampening the ability of debtors and trustees to maximize value for creditors. This article identifies ways in which investors may more easily discover bankruptcy asset sales.
Judge Rules Shaquille O'Neal Will Face Securities Lawsuit for Promotion, Sale of NFTs
A federal district court in Miami, FL, has ruled that former National Basketball Association star Shaquille O'Neal will have to face a lawsuit over his promotion of unregistered securities in the form of cryptocurrency tokens and that he was a "seller" of these unregistered securities.
Why So Many Great Lawyers Stink at Business Development and What Law Firms Are Doing About It
Why is it that those who are best skilled at advocating for others are ill-equipped at advocating for their own skills and what to do about it?
Blockchain Domains: New Developments for Brand Owners
Blockchain domain names offer decentralized alternatives to traditional DNS-based domain names, promising enhanced security, privacy and censorship resistance. However, these benefits come with significant challenges, particularly for brand owners seeking to protect their trademarks in these new digital spaces.
Coverage Issues Stemming from Dry Cleaner Contamination Suits
In recent years, there has been a growing number of dry cleaners claiming to be "organic," "green," or "eco-friendly." While that may be true with respect to some, many dry cleaners continue to use a cleaning method involving the use of a solvent called perchloroethylene, commonly known as perc. And, there seems to be an increasing number of lawsuits stemming from environmental problems associated with historic dry cleaning operations utilizing this chemical.