When It's About More Than Money: What's Enforceable In Settlement Agreements
From time to time, even the best employers need to downsize staff. The terms of an employee's severance are usually memorialized in an agreement, pursuant to which the employee, in consideration for a payment of a certain amount, waives the right to litigate claims. Although that amount is often the primary bone of contention, unfortunately it is not the only one. This article outlines the other terms commonly appearing in agreements settling claims arising out of employment and its termination, and the often-conflicting case law on the enforceability of such terms.
Planning The Successful Retreat
Whatever the goal of a law firm retreat, it will not succeed unless adequate time and effort have gone into the planning process. In fact, a major portion of the work involved must be done before the retreat is actually held. The retreat should not be viewed as a panacea, but as a practical management tool that can be wielded in a variety of ways.
The Dangers Of e-Recruiting
The efficiency, ease and convenience of online recruiting and interviewing have made for instant hiring success among companies in all industries employing this effective, low-cost, easy-to-use, flexible staffing method. <br>But, as with all technologically delivered gains, online recruiting can have some drawbacks, and knowledge of these and preparation for dealing with them in the event they pop up will help to ensure e-commerce enterprises a fruitful ' and low-liability ' undertaking.
NY Appellate Court Finds Law Against Unwanted Faxes Constitutional
In the first New York appellate ruling on the constitutionality of a federal ban on unsolicited advertising faxes, the Appellate Term in Brooklyn reversed two lower courts and declared that the law does not impinge on First Amendment protections for commercial speech.
Case Briefs
Highlights of the latest insurance cases from around the country.
The Defense Must Go On: An Insurance Company's Rescission Defense Does Not Pre-empt Its Obligation to Defend Its Insured
Today's headlines are filled with stories about corporate scandals and trials of corporate executives accused of fraud, malfeasance, and incompetence. The natural fallout has been SEC investigations, hundreds of civil lawsuits, and criminal prosecutions. Directors' and officers' insurers ("D&O insurers") have seen a dramatic increase in claims as a result of these events. The initial battleground relating to the corporate scandal claims is whether there is a duty to defend or pay defense costs. The D&O insurers have asserted numerous defenses to providing a defense or paying defense costs. One defense that is being asserted frequently is rescission or "unilateral" rescission (collectively "rescission"). The rescission defense attempts to extinguish the policy by declaring it void <i>ab initio</i>. Recently, the majority of courts that have considered rescission have rejected it or deferred consideration of it, while ordering the D&O insurer to pay for, or provide the policyholder with, a defense. This article discusses recent cases that have addressed insurers' rescission arguments and explores the arguments that rebut the rescission defense.
An Update on the 'Follow the Fortunes' Doctrine in the Reinsurance Context
Reinsurance, the insurance of insurance companies, arose in the 14th century, the same century that saw the rise of the Ming Dynasty and the decimation of Europe's population by the Black Plague. Despite its 600-year history, however, until recently, judicial decisions on reinsurance disputes were few and far between. Instead, "differences [were] often ... settled by handshakes and umpires[.]" <i>Sumitomo Marine & Fire Ins. Co. v. Cologne Reins. Co.</i>, 75 N.Y.2d 295, 298, 552 N.E.2d 139, 140 (1990). But with the flood of mass tort and environmental litigation in the last 20 years, there has been a rise in reinsurance litigation. One historic response to deflect protracted reinsurance litigation is the "follow the fortunes" doctrine. When courts and insurers talk about follow the fortunes, they may mean one of two similar concepts: follow the fortunes or "follow the settlements." While the follow the fortunes doctrine "requires reinsurers to accept a reinsured's good faith decision that a particular loss is covered by the terms of the underlying policy," the follow the settlements clause "requires reinsurers to abide by a reinsured's good faith decision to settle, rather than litigate, claims on that policy. <i>Commercial Union Ins. Co. v. Seven Provinces Ins. Co.</i>, 9 F. Supp. 2d 49, 66 (D. Mass. 1998), <i>aff'd,</i> 217 F.3d 33 (1st Cir. 2000), <i>cert. denied,</i> 531 U.S. 1146 (2001). Typically, the follow the fortunes doctrine is implied in the reinsurance contract whereas the follow the settlements clause is a specific provision in the agreement. While these doctrines share the underlying predicate of "good faith," this article focuses on the follow the fortunes doctrine: the doctrine that requires a reinsurer to indemnify its reinsured whenever the reinsured makes a good faith payment of an insured loss.
