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Companies in virtually every sector of the economy have become targets of allegations that their business practices or products have injured consumers. These cases often arise as class actions, frequently exposing target companies to the risk of significant defense costs, liability, or a product recall. In the face of the ever-increasing risk of consumer protection claims, most companies have put into place risk management strategies that principally rely on a variety of insurance policies. All too often, though, when a company needs its insurance most, it finds that it does not get the protection that it expects. Instead, insurers frequently make every effort to evade payment under their policies.
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Verdicts of interest to you and your practice.
ABC Company was overconfident about the effectiveness of its hotline, which was producing only about 25% of the industry average call volume. XYZ Inc.'s hotline had a similar issue, generating only 15%. In both instances, using a breakthrough benchmarking study, we identified the low usage and recommended potential remediation steps.
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The misappropriation theory of insider trading, which was first recognized by the Supreme Court in <i>United States v. O'Hagan</i>, 521 U.S. 642 (1997), establishes liability for individuals who are not typical 'insiders' of companies and also appears to offer such defendants a specific defense to insider trading charges. The O'Hagan Court based the misappropriation theory on a duty owed by the defendant to the source of non-public material information, rather than to the shareholders of the company whose stock was being traded. Because a defendant prosecuted under the misappropriation theory had a duty only to his source, the Court explained that a defendant's disclosure to the source of information prior to trading or tipping could neutralize the acts of deception necessary for a securities fraud claim.
Indictments and resignations following an internal investigation are not necessarily surprising. In the case of the Hewlett-Packard ('HP') investigation, however, it's the investigators who are in dire straits. In the months since HP publicly announced that it had conducted an internal investigation into news leaks by corporate directors, its Chairman and General Counsel have resigned, criminal charges have been filed against those involved in the investigation, and one person has pled guilty. HP exemplifies the pitfalls and problems that can result from an internal investigation itself, for both the company and its counsel. As one Congressman asked: 'Where were the lawyers? There were red flags waving all over the place,' but 'none of the lawyers stepped up to their responsibilities.'
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Litigation involving asbestos, which was used for decades as a fire retardant in many products, has littered the legal landscape for years. Several major companies have over the course of the last several years filed for bankruptcy as a result of the onslaught of this litigation. Since the 1980s, many asbestos manufacturers, including Johns Manville, declared bankruptcy under the weight of liability payouts. To date, an estimated 85 companies have filed for bankruptcy claiming asbestos liabilities as the cause. A Rand Institute for Civil Justice report indicates that more than 730,000 asbestos claims have been filed since the early 1970s. Roughly 200,000 claims are still pending in state and federal courts nationwide. Estimates predict that up to 2.4 million claims still may be filed before asbestos litigation finally runs its course.
The U.S. Bankruptcy Court for the Eastern District of Pennsylvania recently issued one of the first decisions in the 3rd U.S. Circuit Court of Appeals to interpret ' 503(b)(9), an important new Bankruptcy Code provision passed under the Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA): <i>In re Bookbinders' Restaurant Inc.</i> ' 503(b)(9) is certain to impact the relationship between a debtor seeking to reorganize and the trade vendors that deal with it.
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In the last ten years, the credit derivatives market has grown from its infancy to approximately $26 trillion of notional value according to the International Swaps and Derivatives Association, Inc. ('ISDA'). The most highly utilized type of credit derivative, the credit default swap, is used by investors to bet on a company's creditworthiness or hedge a position in a fashion that protects against the company's failure to make a payment or satisfy other terms.
