LJN Newsletters

Congress enacted the Telecommunications Act of 1996 to encourage development of telecommunications technologies, and in particular, to facilitate growth of the wireless telephone industry. The statute's provisions on pre-emption of state and local regulation have been frequently litigated. Last month, however, the Court of Appeals, in Chambers v. Old Stone Hill Road Associates (see infra, p. 7) faced an issue of first impression: Can neighboring landowners invoke private restrictive covenants to prevent construction of a cellular telephone tower? The court upheld the restrictive covenants, recognizing that the federal statute was designed to reduce state and local regulation of cell phone facilities, not to alter rights created by private agreement.

The Federal District Court for the Southern District of New York has allowed a class of 6,500 plaintiffs to pursue their complaint against several investment companies for violations of the Workers Adjustment and Notification, or WARN, Act. In doing so, the court in In re Vogt, 2004 WL 187153, adopted and applied not the traditional piercing-the-corporate-veil test but instead the more narrowly focused and easier to establish "DOL test," based on the Department of Labor's WARN regulations.
This case should be of concern to all employers, not just equity investors. The nation's economy now seems to be hovering between recession and recovery.

We all know that since 9/11, the American public has a heightened sense of anxiety about their personal safety. Our legislative body, sensing America's anxiety, created a new agency, the Department of Homeland Security ostensibly to protect us from terrorist threats. But, while doing so, Congress snuck in a compelling tort reform program. Hidden beneath the folds of the legislative verbiage creating the DHS, situated immediately before the miscellaneous provisions, lies a new program to incentivize and protect individuals and companies engaged in developing anti-terrorist technologies: the SAFETY Act of 2002. Surprisingly, the private sector, so far, has not voiced much enthusiasm for it.

There are several standard topics that in-house counsel have always watched carefully, such as the subtlety of ethics questions, conflicts, who is considered a client and the standard privilege issues. But times have changed, and the most vigilant may still find themselves in untenable positions. The old mantra for in-house counsel ' watch your back ' has been replaced with the question: "Whose back are you watching?" As we forge ahead, as important as it is to discern who the clients are is telling them and reminding ourselves how we maintain the privilege that is so critical to in-house attorney-client communications.

The past few months have seen an explosion in the number of lawsuits filed under the Telephone Consumer Protection Act, a federal statute that prohibits transmittal of unsolicited advertisements by fax without first obtaining the prior express invitation or permission of the recipient. These lawsuits ' particularly when filed as class actions ' expose defendants to substantial defense costs and the potential for large liabilities.
These TCPA lawsuits cases are, in turn, spawning disputes between TCPA defendants and commercial general liability (CGL) insurers as to whether policyholders are entitled to a defense and/or indemnity for TCPA claims under standard-form CGL policy. This article briefly explores these insurance coverage issues. It concludes that, given recent case law, policyholders have a strong chance of recovering their defense costs and any settlements or judgments in TCPA lawsuits.

Highlights of the latest product liability cases from around the country.

Defect" in product liability law has two roots: from breach of warranty actions under contract law and from negligence under tort law. In early products liability cases, courts relied upon an implied warranty to permit recovery for personal injuries arising from defective goods. However, that cause of action required privity between the seller and the injured consumer, which could not always be satisfied. This led to the development of the strict liability doctrine in tort law, where privity was not required. Strict liability in tort remedies no longer needs to rely on a contractually based breach of implied warranty to compensate injured plaintiffs.

How is the dissemination of information regarding an unapproved indication for an approved drug or medical device like speeding on the highway? You might not get caught, but it can be dangerous and it might land you in court.