Liability Without Harm: Is There a New Source of Catastrophic Liability Lurking Within Your State's Consumer Protection Statute?
Lost benefit suits are especially threatening to product manufacturers because these claims are particularly susceptible to class aggregation. Rule 23 of the Federal Rules of Civil Procedure permits plaintiffs to assemble into classes when, among other things, they share 'questions of law or fact' and those common questions 'predominate over any questions affecting only individual members.' Fed. R. Civ. P. 23. Ordinarily, injury and causation are sources of diversity between plaintiffs and, by extrapolation, impediments to class treatment. Plaintiffs who claim injury from tobacco, for example, frequently claim different injuries and different causal mechanisms and, therefore, typically may not assemble into classes. <i>See, e.g., Aspinall</i>, 442 Mass. at 392-93, 813 N.E.2d at 485-86. By dispensing with the injury and causation requirements, lost benefit suits destroy a source of diversity between plaintiffs and promote class treatment.
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ADA Mental Illness Claims Increase in The Workplace
As the stigma of mental illness lessens, employers are handling more frequent requests for accommodation under the Americans with Disabilities Act (ADA). Because serious physical impairments are often easier to identify and accommodate, learning to handle the gray areas of mental disorders as they relate to the ADA can be a challenge for employers.
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Effective Legal Holds Policy Requires IT-Legal Interaction
The explosive growth in electronic communications has resulted in a corollary growth of e-mail as a primary source of legal discovery when organizations are faced with litigation. As recent high profile cases demonstrate, traditional litigation hold processes are being successfully challenged as inadequate in the context of electronic communications. The lesson, therefore, is that if a company uses technology to run its daily business operations, it will be expected to utilize similar technologies to search, collect and produce requested or subpoenaed business records. Symantec Corporation, a developer of security and availability software tools, is leveraging its own products and the expertise of both its legal and IT departments to develop and implement a litigation hold program designed to significantly reduce the time and money spent to collect and preserve e-mail records. This article summarizes some of the 'lessons learned' by Symantec as we worked with our own technology to develop our legal hold program.
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Managing Electronic Evidence
Discovery demands on in-house legal staff have changed drastically in recent years. Historically, complying with subpoenas and document production requests were quotidian chores for in-house legal staff. After receiving a complaint, counsel's office issued a standard 'document hold' to affected employees and directed that those involved in the case preserve their files and not destroy anything. Questions might arise, but they were manageable. What must be disclosed? What documents are privileged? How long will it take to retrieve documents from storage? How many staff hours will complying require? How much will it cost? Who bears the cost? Which discovery requests should be challenged?
Practice Tip: Minimizing Liability Exposure By Reporting Adverse Drug Experiences
In order to minimize potential product liability associated with pharmaceutical products, companies regulated by the U.S. Food and Drug Administration ('FDA') should be vigilant in ensuring that adverse drug experiences ('ADEs') are reported to the FDA in a timely and complete manner. FDA regulations contain extensive requirements regarding the reporting of ADEs for companies involved in the distribution chain, such as manufacturers and distributors. Failure to report, when required, can result in an FDA enforcement action and exacerbate liability exposure. A proactive ADE collection and reporting system will place a company in a better position to address unanticipated issues that may arise after full-scale commercial marketing has begun. Therefore, companies must know their regulatory responsibilities and implement procedures to ensure that ADEs are collected and reported, as required by law. This article covers only some of the re-quirements and issues to consider.
Prescription Drug Litigation Pre-emption Following the FDA Preamble: The Defense Perspective
It has now been more than 9 months since the U.S. Food and Drug Administration ('FDA') issued its new labeling rule for prescription drugs with an extensive preamble analysis of how many state tort legal claims conflict with and accordingly are pre-empted by the its regulation of such drugs. The FDA re-emphasized its position that state tort law claims threaten its ability to pursue its statutory mandate of protecting public health through balanced labeling. It thus explained that 'under existing pre-emption principles, FDA approval of labeling under the [FDCA] pre-empts conflicting or contrary State law.' 71 Fed. Reg. 3922, 3933 (Jan. 24, 2006).
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Outsourcing Disputes
A spectacular smash-up always draws a crowd. In the outsourcing world, where the wreckage is nearly always kept under wraps, that's even more true. When a problem deal does break into view, it's always worth watching for lessons in how to manage ' or how not to manage ' these complex transactions. Counsel with responsibility for managing outsourcing relationships or contemplating new ones have two new cases to chew over that offer intriguing glimpses into troubled deals: A suit filed by Sprint Nextel against IBM in May, and an English case decided in June involving Vertex Data Sciences and its client Powergen.
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The Leasing Hotline
Highlights of the latest commercial leasing cases from around the country.
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Looking at Lease Provisions from the Litigator's Angle
Frequently, commercial lease issues are brought to the attention of a litigation lawyer only after a dispute between the landlord and the tenant has erupted. Oftentimes, the dispute involves the 'boilerplate' provisions that do not raise much interest during the drafting phase because they are not considered to be economic deal points. <i>See</i> 'Revisiting Boilerplate or 'Miscellaneous' Lease Provisions' in the January 2006 issue of <i>Commercial Leasing Law & Strategy</i>. This lack of interest in boilerplate provisions is a mistake because it is much easier to resolve concerns regarding those provisions ' which become very important in the litigation context ' while the parties are amicably moving toward closing a deal, rather than during the pendency of a lawsuit. Many times, disputes could have been either avoided or minimized had the parties clarified certain important issues while they were negotiating and drafting. This article discusses several leasing issues that should be carefully considered while the parties are still on friendly terms.
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