HIPAA and the Criminal Investigation
As medical practitioners and the attorneys who defend (or sue) them have learned over the last few years, health care professionals are liable for wrongful disclosure of protected health care information under HIPAA and various state statutes. Lack of sophistication of the law in this area is no excuse for turning over medical records to unauthorized recipients, and appropriate statutory requirements must always be met. But it's not always easy to tell when those safeguards on patient privacy are paramount and when other considerations might trump them. A recent case offers an interesting permutation on the question by asking: When can law enforcement authorities access medical records without the patient's authorization? The wrong answer could leave the health care facility or provider that hands over patient records vulnerable to liability for unauthorized release.
Deepening Insolvency Lender's Victory over Trustee May Have Far-Reaching Implications
The decision by Chief Judge Stuart M. Bernstein of the United States Bankruptcy Court for the Southern District of New York in <i>In re Global Service Group LLC</i>, 316 B.R. 451 (Bankr. S.D.N.Y. 2004), provides a sense of relief not only for lenders, but also for various other participants in the bankruptcy arena who may face claims based on "deepening insolvency." This case is especially significant because it helps define the conduct that may subject a party to liability under an amorphous concept that is still evolving.
The Devil in the Details
Last month, we discussed the fact that in theory, a borrower's issuance of junior secured debt is a boon for its senior secured lender. In practice, however, we pointed out that a senior secured lender should view proposed junior secured financing skeptically because the existence of such debt can become highly problematic for the senior lender. In Part Two, we continue our discussion, which focuses on additional elements and negotiating points that an inter-creditor agreement should contain.
Restructuring AMERCO
When AMERCO, the parent company of U-Haul International, emerged from bankruptcy protection in March 2004, it secured an unusual place in history -- exiting Chapter 11 with a global capital restructuring that resulted in zero dilution in shareholder value. Alvarez & Marsal, which was retained as the company's financial advisors, executed one of the most successful restructurings on record by developing and implementing a complex and consensual plan that required significant negotiations with a diverse group of debt and equity holders. By the end of the swift process, AMERCO's common equity value had increased by over 350% and nearly $300 million in value was restored to the investments of preferred stock and unsecured debt holders.
Case Briefs
Highlights of the latest insurance cases from around the country.
An Analysis of the World Trade Center 'Two Occurrences' Decision
On Dec. 6, 2004, a New York federal jury determined that the 9/11 attacks on the World Trade Center involved two "occurrences" under policies issued to leaseholder Larry Silverstein. As a result, Silverstein could get up to $1.1 billion more than if the attacks had constituted a single occurrence.
Duties in Event of Occurrence: Many Insurance Policies Do Not Purport to Make Notice a Condition Precedent
Insurance policies typically contain provisions requiring prompt notice to the insurance company of an event that could lead to coverage under the policy. There is a well-known split among U.S. jurisdictions as to whether an insurance company can succeed in barring coverage based on untimely notice if it has not suffered prejudice from the timing of notice. The majority and modern trend is for jurisdictions to hold that an insurance company cannot succeed on a late notice defense absent actual prejudice. <i>See, e.g.,</i> 1 Barry R. Ostrager & Thomas R. Newman, <i>Handbook on Insurance Coverage Disputes</i> §4.02[c][2] (12th ed. 2004) ("Ostrager & Newman"). A minority of jurisdictions holds that notice can be treated as a "condition precedent"; that is, coverage can be barred based on late notice even in absence of any harm to the insurance company. <i>Id.</i> §4.02[c][1].
