Contractual indemnification arises in products liability litigation in many contexts other than insurance contracts. Agreements between companies and agreements between product manufacturers and physicians and pharmacies are among the most commonly encountered indemnifications in drug and device product liability litigation. Each situation raises practical concerns for counsel representing a pharmaceutical or device manufacturer. How the indemnification provisions are drafted can be important to the client's bottom line and ability to manage litigation. This article discusses some of the practical and litigation strategy considerations that can arise when contemplating entering an agreement for indemnification.

Features

Highlights of the latest insurance cases from around the country.

In assessing whether a particular insurance policy is excess or primary, courts consider a number of factors including: the premium paid for the policy (<i>ie</i>, the amount of consideration); the specific language of the policy (<i>ie</i>, the presence of an "other insurance" clause); the form of the policy (<i>ie</i>, whether the policy specifically identifies itself as "excess"); and whether the policy specifically identifies the primary policies. These factors determine whether the policy will be deemed "true excess," "excess by coincidence," or primary. This determination is necessarily fact intensive and involves not only an examination of the subject policy but also an examination of any other policy to which the subject policy is purportedly excess and the interaction of such policies.

Features

Experienced insurance coverage lawyers know that choice of forum frequently affects choice of law, and choice of law is frequently outcome determinative. Coverage disputes, therefore, often result in a rush to the courthouse by both policyholders and insurers as they select the forum. One way insurers initiate litigation is to file a declaratory judgment action, usually in federal court.

On Jan. 10, 2006, the U.S. Supreme Court announced its first decision in over a decade interpreting the federal price discrimination statute, known as the Robinson-Patman Act (the "RPA"). In a 7-2 decision, the Court in <i>Volvo Trucks North America, Inc. v. Reeder-Simco GMC, Inc.</i> (04-905), held that a heavy-duty truck manufacturer's unequal price concessions to its dealers bidding for special order jobs do not violate the RPA unless they discriminate between dealers competing for the same retail customer.

Features

In the wake of the tidal wave of franchise regulation that has hit Europe, in France, Spain, Italy, Belgium, Lithuania and Estonia, there is another tidal swell rapidly approaching. Over the last 3 years, a privately financed group of European academics, working under the title, "The Study Group on a European Civil Code," have been developing a model European Civil Code. One of the Study Group's subgroups (the "Amsterdam Team") has drafted a chapter on Commercial Agency, Franchise and Distribution Contracts, the latest draft of which is dated January 2005.

Highlights of the latest franchising news from around the country.

Features

Developments regarding Burger King and its franchisee association, the National Franchisee Association ("NFA"), in the past few months have raised as many questions as they have answered. NFA Board Chairman Dan Fitzpatrick and other board members resigned at a meeting in early December, and they were replaced by four veteran Burger King franchisees: Bob Boss, Vernon Duckrey, Ray Meeks, and Gary Robison. Another franchisee, Joe Anghelone, joined the board in January 2006.