Recent Publications

Insurance Update
January 18, 2018 | Robert Tugander | Insurance Coverage
It has been a frigid start to the new year, but insurance remains a hot topic with the courts.  In this month’s Insurance Update: The Florida Supreme Court decides whether a statutory presuit notice process is a “suit”; The Connecticut Supreme Court provides guidance on when a claim arises out of a business pursuit; The …
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Appellate Decision Underscores Lawyers’ Duty to Fulfill Retainer Agreement’s Obligations
January 11, 2018 | Jonathan B. Bruno | Deborah M. Isaacson | Professional Liability
The Appellate Division, First Department recently held that a legal malpractice action could withstand a law firm’s motion to dismiss the claim on the grounds that plaintiff failed to plead the “but for” causation element of the claim, reversing the trial court’s dismissal. In Macquarie Capital (USA) Inc. v. Morrison & Foerster LLP, Supreme Court, …
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CMS Updates Its Position on Texting Patient Information
January 11, 2018 | Health Services
Recognizing that texting has become a valuable and essential means of communication among providers, the Centers for Medicare and Medicaid Services (CMS) recently issued new guidance regarding its position on texting of patient information. The guidance clarifies that texting patient information may be permissible if certain security standards are met, but it also distinguishes between …
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Employee Benefit Plan Review – From the Courts
January 5, 2018 | Norman L. Tolle | Insurance Coverage | Employment & Labor
Release Did Not Bar Injured Worker from Bringing FMLA Claims Against Former Employer, Third Circuit Rules The plaintiff in this case alleged that he was injured on or about August 12, 2014 while working as an employee of Boscov’s Inc. at a farmers’ market in Reading, Pennsylvania. The plaintiff immediately filed a worker’s compensation claim, …
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A Warning Signal for Auto Insurers From the Second Circuit
January 4, 2018 | Evan H. Krinick | Appeals
Twenty-five years ago, in Riordan v. Nationwide Mutual Fire Ins. Co., 977 F.2d 47 (2d Cir. 1992), the U.S. Court of Appeals for the Second Circuit ruled that New York General Business Law §349—one of the most powerful consumer fraud provisions of New York law—was applicable to insurance companies’ interactions with policyholders. In Riordan, the …
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Feld Publishes Article in DRI Newsletter
January 3, 2018 | Brian L. Feld | General Liability | Complex Torts & Product Liability
Brian Feld’s article, “Mutation and Evolution: The Effect of the BAP1 Gene on Asbestos Litigation,” appeared in the December 29, 2017, newsletter of DRI’s Toxic Tort and Environmental Law Committee. To read the article, click here. …
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Trump-Era NLRB Raises the Bar for Determining Joint-Employer Relationship
December 28, 2017 | Scott R. Green | Johanna Sanchez | Employment & Labor
The joint employer standard has long been a hotly contested issue because it is used to determine whether one employer may become liable for the employment actions and policies of another. On December 14, 2017, the National Labor Relations Board’s (NLRB) decision in  Hy-Brand Industrial Contractors, Ltd., 365 NLRB No. 156 (2017) overruled its controversial …
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The Status of Telemedicine Reimbursement
December 20, 2017 | Benjamin P. Malerba | David E. Richman | Ada Kozicz | Health Services
Benjamin Malerba, David Richman and Ada Kozicz wrote an article published in Health eSource, a publication of the American Bar Association’s Health Law Section entitled, “The Status of Telemedicine Reimbursement: States’ Efforts to Incentivize Providers to Utilize Telehealth Technologies.” The article centers on the importance of creating legislation that will provide insurance reimbursement for telemedicine, as a means to …
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Online Business’ Optimism Under Privacy Shield Is Tempered by EU Privacy Challenges Ahead
December 19, 2017 | Shari Claire Lewis | Privacy, Data & Cyber Law
There is good news for U.S. companies operating online, which nowadays, of course, includes virtually every business. The European Commission has published its first annual report on the agreement reached last year by the Commission and the U.S. government to protect personal data transferred from the European Union (EU) to U.S. companies for commercial purposes, …
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Insurance Update
December 19, 2017 | Robert Tugander | Insurance Coverage
It’s a busy time of the year, and courts have been busy tackling the following insurance questions: Municipalities sued pharmaceutical companies for deceptively marketing opioids. Are the companies entitled to a defense from their insurers? Owners of a custom built home discovered mold contamination caused by poor construction.  Does the faulty workmanship exclusion bar their …
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New York Insurance Coverage Update
December 19, 2017 | Insurance Coverage
New York Federal Court Upholds Insurer’s Decision To Void Policy For Material Misrepresentation In Application An application submitted by the insured’s broker for insurance on an apartment building in the Bronx indicated that the building was not vacant and was not undergoing any major renovations. The policy was issued and the building was subsequently vandalized. …
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The Ties That Bind: Second Circuit Rejects Trade Dress for Plastic Bag Closures
December 18, 2017 | Michael C. Cannata | Frank M. Misiti | Intellectual Property
Businesses must give careful consideration to ensuring that their trade dress is not functional.  A determination of functionality is fatal to any claim that a product contains a protectable trade dress.  In Schutte Bagclosures, Inc. v. Kwik Lok Corp., 699 F. Appx. 93 (2d Cir. 2017), the Second Circuit recently underscored the importance of functionality …
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United States Supreme Court Bankruptcy Update
December 14, 2017 | Matthew V. Spero | Jeannine M. Farino | Bankruptcy
The United States Supreme Court granted certiorari and decided three bankruptcy cases this year that all bankruptcy practitioners should be aware of. Czyzewski v. Jevic Holding Corp. On March 22, 2017, the United States Supreme Court rendered a crucial and fundamental decision that significantly affects the ability of parties to a Chapter 11 bankruptcy case …
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Year-End Deadline for NY Medicaid Providers and Third-Party Billers
December 13, 2017 | Benjamin P. Malerba | Ada Kozicz | Health Services
New York State Medicaid providers who claim, order or receive at least $500,000 from the Medicaid Program in any consecutive 12-month period have until December 31 to certify that they have implemented a compliance program aimed at detecting and preventing Medicaid fraud, waste and abuse. This requirement also applies to third-party billing companies that bill …
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Substance Use Providers Beware: New Patient Record Release Requirements
December 13, 2017 | Carol A. Hyde | Ashley S. Osadon | Health Services
Substance use treatment providers and rehabilitation centers should use caution when reviewing and approving written consents for the disclosure of substance use patient records, specifically consents authorizing disclosure to government agencies, as such requests frequently do not comply with new SAMHSA regulations. On January 18, 2017, the Substance Abuse and Mental Health Services Administration (SAMHSA) …
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