Federal Judge Gives Clues in YouTube Infringement Case
A cross-coastal ruling in the little-known predecessor of the epic suit filed in March by Viacom International, Inc. against YouTube, Inc. and its new parent, Google, Inc., elucidates key issues arising under the Digital Milleneum Copyright Act that the a New York federal district judge will likely focus on in the much anticipated and ballyhooed litigation.
Case Briefs
Highlights of the latest insurance cases from around the country.
Making Sense of Contra Proferentum
One traditional rule of contract interpretation is to construe contact terms in appropriate circumstances against the drafter, a concept often referred to as <i>contra proferentum</i>. This doctrine sometimes fits uncomfortably with two other views expressed by American courts. On one hand, many decisions say that insurance contracts are interpreted just like any other commercial contract. <i>See, e.g., Sims v. Mulhearn Funeral Home, Inc.</i>, ___ So.2d ___, (La. 2007); <i>Bear River Ins. Co. v. Williams</i>, 153 P.2d 798, 801 (Utah Ct. App. 2006). On the other hand, some decisions say without qualification that insurance contracts should be construed strictly against the insurer. <i>See, e.g., Carter v. Concord Gen. Mut. Ins. Co.</i>, ___ A.2d ___ (N.H. 2007); <i>Cinergy Corp. v. Associated Elec. & Gas Ins. Servs., Ltd.</i>, 865 N.E.2d 571, 574 (Ind. 2007). And sometimes a single opinion tries to express both at the same time: 'It is well settled that a <i>contract of insurance is no different from any other contract</i> and must be construed in a fair and reasonable manner, having regard to the risk and subject matter of the policy, and that special rules such as liberal construction in favor of the insured and against the insurer who drew the contract apply.' <i>In re New York Cent. Mut. Fire Ins. Co.</i>, 833 N.Y.S.2d 182, 183 (App. Div. 2007) (emphasis added).
Class Certification In Property Insurance Disputes
The 2005 hurricane season, including the devastation wreaked by Hurricane Katrina, caused estimated losses of $75 billion. The insured property damage from the five major hurricanes in 2005 reached $52.7 billion. Hurricane Katrina alone caused more property loss than had occurred in the entire prior year, posting $27.3 billion. <i>See http://insurancenews net.com/article.asp?a=top_news&id=73930</i>. In light of these unprecedented losses, a record number of lawsuits have been filed stemming from damage caused by the 2005 storms. Predictably, an equally high number of class action suits have been filed, purportedly on behalf of those affected by the storms. Despite this flurry of class action suits, the requirements of Federal Rule of Civil Procedure 23 and its state counterparts clearly limit the use of class action suits to very specific, enumerated circumstances that simply do not include first-party insurance disputes, widespread property damage claims, or claims for bad faith and/or unfair trade practices in the adjustment of insurance claims, even where the damage was due to a common weather event.
Milking a Cash Cow
With all of the reporting capabilities of sophisticated time and billing systems, it is easy to lose sight of the most basic rule of law firm economics: Cash in must exceed cash out. To that end, one of the most valuable assets any business can have is a cash cow. Yet, we find that many law firms never benefit from practices that could be cash cows because they just don't seem to understand the concept. I know, it sounds pretty simple ' bleed as much revenue as you can out of practice areas in which your firm has a dominant position. But, somehow, we keep screwing it up.
Movers & Shakers
News about lawyers and law firms in the product liability field.
Case Notes
Highlights of the latest product liability cases from around the country.
The Political Question Doctrine: An Unusual (and Unused) Path to Dismissal of Product Liability Suits
As litigation grows more complex, the costs of defending tort lawsuits continue to rise. Defendants frequently settle such cases, not to avoid potential liability, but to avoid the high costs of discovery and other litigation expenses. Motions for summary judgment reduce those costs, but only to a certain degree. Consequently, defendants in tort suits are constantly searching for strategies and defenses that will result in dismissals early in the litigation. One such defense is the 'political question' doctrine, a longstanding legal principle that has enjoyed a resurgence in recent years.
Practice Tip: Firing Your Expert
During a recent product liability trial, the plaintiff's expert opined in his original disclosure that the subject machine was defective because it lacked a clutch safety mechanism. Trial counsel, retained just weeks before jury selection, learned from the same expert that no machine in the industry contains such a mechanism. They concluded that cross-examination of the expert on this point would probably outweigh any benefit that such testimony might add to the plaintiff's case, and that a simpler explanation for the accident was the manufacturer's failure to place conspicuous warnings to the user on how to operate the device properly. They decided that it would be wise to have the expert testify about the missing warnings instead of the design defect. The problem was that the expert's design defect theory had been presented in the plaintiff's pretrial disclosure statement, which had been served on the defendants, but nothing was disclosed about the failure to warn.
