HB Litigation News

Category: Emerging Litigation & Risk

PFAS Regulation: EPA Ushers in Next Era of Mass Tort and Environmental Litigation

The Authors

David J. MarminsArnall Golden Gregory LLP

David is a business litigation partner at Arnall Golden Gregory LLP in Atlanta. He is at the forefront of land use law and environmental law in the context of PFAS, currently defending three manufacturers in litigation. He also has extensive experience handling banking and related disputes, and additional experience in complex business litigation, class actions, and medical malpractice defense of hospitals. David started his legal career as civil rights prosecutor and, before law school, as a reporter. He earned his J.D. from Georgia State University College of Law.

Morgan E.M. HarrisonArnall Golden Gregory LLP

Morgan is a partner at Arnall Golden Gregory LLP where she has represented defendants in PFAS litigation since 2016. Morgan also frequently speaks and writes on the subject. In addition to PFAS, she a member of the firm’s teams dedicated to Litigation & Dispute Resolution, Employment law, Payment Systems and Fintech, and the Background Screening industry. She earned her J.D. from Vanderbilt University School of Law.

Emerging Litigation PodcastProduced by HB Litigation and Law Street Media

Interviews with leading attorneys and other subject matter experts on new twists in the law and how the law is responding to new twists in the world.

Forever Chemicals Will Now Be Regulated

EPA Ushers in New Era of Mass Tort and Environmental Litigation

An enforceable drinking water standard will be an important tool for plaintiffs. Defendants will no longer be able to assert that they have not violated any federal limitations …. And with more government scrutiny … businesses can expect that the wave of recent PFAS litigation will not only continue but will likely increase across the country.

Abstract:

The U.S. Environmental Protection Agency (EPA) announced the long-awaited proposed National Primary Drinking Water Regulation for six per- and polyfluoroalkyl substances, known as “PFAS,” on March 14, 2023. The agency anticipates finalizing the regulation by the end of 2023, and claims that it will save thousands of lives and reduce tens of thousands of serious illnesses.

The EPA has been aware of PFAS since at least the 1990s, when one farmer’s investigation into the chemicals concluded with a seminal lawsuit against multinational chemical company DuPont. A book and subsequent feature film put that lawsuit in the spotlight, and PFAS became mainstream news.

Today, PFAS claims are widely recognized as the next frontier of mass tort and environmental litigation. With the EPA poised to finally enact the first regulation of these chemicals, that frontier is ripe for exploration.

This article explores PFAS and the origin of litigation around the substances as well as the state of PFAS litigation and regulation today. It concludes with some thoughts on what to expect when it comes to PFAS litigation going forward.

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Loved reading David & Morgan’s Journal Article?

Listen to their Podcast!

PFAS Regulation, Litigation, and Differentiation

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September 21, 2023
Spotting the Risk, Reaping Rewards: Avoiding Increased Antitrust Scrutiny

The Authors

Katie ReillyWheeler Trigg O’Donnell LLP

Katie has favorably represented antitrust clients in matters involving monopolization, conspiracy, price fixing, exclusive dealing, and other competition-related disputes, including trade secrets and non-compete actions. She has extensive knowledge of the regulatory hurdles and obligations her clients face. Katie earned her J.D. from the New York University School of Law, cum laude.

Natalie WestWheeler Trigg O’Donnell LLP

Natalie West represents sophisticated clients in complex commercial disputes. She regularly serves as the lead brief writer in antitrust cases, employment and consumer class actions, and appellate matters. Natalie graduated with high honors from the University of Texas School of Law, where she served as a member of the Texas Law Review and was elected to the Order of the Coif.

Emerging Litigation PodcastProduced by HB Litigation and Law Street Media

Interviews with leading attorneys and other subject matter experts on new twists in the law and how the law is responding to new twists in the world.

Avoiding Antitrust Scrutiny

Spotting the Risk, Reaping Rewards

The increase in aggressive antitrust enforcement has certainly received significant attention. For the moment, juries are not rewarding the prosecutors. That said, even an unsuccessful government investigation is itself costly and can motivate plaintiffs’ lawyers. Best practices involve not only following the law but also maintaining solid optics to avoid the need for an expensive, if ultimately successful, defense.

Abstract:

A decade ago, few lawyers across the country spent significant time thinking about antitrust law. But, since then, there has been an onslaught of antitrust attacks on businesses and executives across all sectors of the economy. Enforcement efforts have skyrocketed following President Biden’s July 2021 executive order directing a “whole of government” crackdown on competition abuses—and the trend shows no sign of letting up.

Today, no matter the industry or the size of the business, everyone needs to understand these risks and have strategies to minimize them.

This article will walk through the top antitrust risks of the moment and conclude with strategies on how to avoid not only violations but also bad optics that increase exposure.

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September 15, 2023
International Discovery Tool Kit Aims to Facilitate Discovery in Both Domestic and Foreign Litigation

The Authors

Benjamin DanielsRobinson+Cole

Benjamin Daniels advises financial institutions and global corporations about litigation and dispute resolution. As a member of the Business Litigation Group, Ben provides creative and ardent advocacy during litigation, enforcement actions, investigations, crisis management, and white-collar defense matters.

Ben’s clients often face complex, cross-border disputes. He has deep experience with the interplay between domestic and international courts, including discovery disputes and Hague convention proceedings. He also represents clients in international arbitrations and mediations.

Jenna ScovilleRobinson+Cole

Jenna Scoville is a member of the firm’s Business Litigation Group. She focuses her practice on all aspects of general business litigation and dispute resolution, as well as government enforcement matters, and appellate work. She helps companies respond to a variety of business disputes, including claims for breach of contract, unfair trade practices and fraud.

Jenna also has extensive appellate experience. Prior to joining the firm, she clerked for the Honorable Peter W. Hall of the U.S. Court of Appeals for the Second Circuit.

Emerging Litigation PodcastProduced by HB Litigation and Law Street Media

Interviews with leading attorneys and other subject matter experts on new twists in the law and how the law is responding to new twists in the world.

International Discovery Tool Kit Aims to Facilitate Discovery in Both Domestic and Foreign Litigation

“At a time when litigants have increasingly relied on U.S. federal courts to obtain otherwise unobtainable evidence from entities located within the United States, the U.S. Supreme Court has decisively closed the door to U.S.-style discovery in private arbitrations abroad. That means U.S. companies will no longer face the time, exposure, and expense of U.S.-style discovery that § 1782 had injected into those proceedings.“

Abstract: Business knows no borders. Every year companies increase their global reach and open new offices both domestically and abroad. The COVID-19 pandemic accelerated this process—remote employees spread documents and witnesses from Chicago to Shanghai to Sumatra. This has made litigation—especially discovery—more complex. Navigating this environment requires a tool kit of resources to secure discovery in support of both domestic and foreign litigation. This article discusses those tools and several traps for the unwary practitioner facing cross-border discovery to anticipate to effectively use those tools to their benefit.

When evaluating whether to allow a party to use the Hague Evidence Convention, courts consider several factors, including:

1) the importance of the documents or information to the case,

2) the specificity of the request,

3) whether the information originated in the United States,

4) the availability of other ways to secure the information, and

5) whether compliance with the request would undermine important interests of the United States or the foreign country.

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Enjoyed reading Ben & Jenna’s article?

Ben has a podcast exploring the subject more in 2024!

Podcast: Navigating International Discovery

September 15, 2023
How Companies Seeking to Leave China for Mexico Can Mitigate Their Legal Risks and Protect Against New Ones

The Author

Dan HarrisHarris Bricken

Dan Harris (dan@harrisbricken.com) is co-founder of Harris Bricken where he focuses his practice on international law and protecting businesses in their foreign operations. A leading authority on the subject, he is also editor of the highly regarded China Law Blog, and a valued member of the Editorial Board of Advisors for the Journal of
Emerging Issues in Litigation.

Emerging Litigation PodcastProduced by HB Litigation and Law Street Media

Interviews with leading attorneys and other subject matter experts on new twists in the law and how the law is responding to new twists in the world.

How Companies Seeking to Leave China for Mexico Can Mitigate Their Legal Risks and Protect Against New Ones

“Chinese manufacturers commonly seek retaliation against foreign buyers that cease buying product from them. For this reason, it is critical that you line up your new suppliers (preferably in a country other than China) and have them ready to go before you even hint to anyone in China that you might cease or reduce production with an existing China supplier.”

Abstract: The author, one of the leading authorities on the legal issues related to international manufacturing, discusses the risks companies will face if they move their manufacturing out of China, what they should do to mitigate those risks, and what new risks they will face in a new country, such as Mexico. He comments on a variety of concepts, including manufacturing agreements, protection of intellectual property, strategies for a safe departure, potential retaliation tactics, and even personal security matters.

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June 21, 2023
Procedural Challenges to the IRS’s Compliance With the APA and Its Impact on Tax Litigation

The Author

Jeffrey S. LuechtefeldChamberlain | Hrdlicka

Jeffrey S. Luechtefeld (jeff.luechtefeld@chamberlainlaw.com) is a tax controversy and litigation attorney with Chamberlain, Hrdlicka, White, Williams, and Aughtry (Atlanta, Georgia) where he focuses his practice on resolving tax disputes with the Internal Revenue Service, administratively or through litigation. Jeff previously was a Special Trial Attorney for the IRS Office of Chief Counsel as well as a director in the tax controversy practice of a big four accounting firm.

Emerging Litigation PodcastProduced by HB Litigation and Law Street Media

Interviews with leading attorneys and other subject matter experts on new twists in the law and how the law is responding to new twists in the world.

Procedural Challenges to IRS Compliance With the APA and Its Impact on Tax Litigation

Abstract: The Administrative Procedure Act (APA) places specific requirements on agencies of the federal government when engaged in a “rule making” that has the force and effect of law. Recently, the APA has become a focal point in tax litigation, due in large part to the IRS’s history of refusing to comply with the process mandated by the APA. This article focuses on procedural challenges to the IRS’s compliance with the APA based on the IRS’s history of non-compliance with the APA’s notice-and-comment requirement. It highlights recent trends in tax litigation and considers the future of APA challenges in this area.

“IRS’s level of APA non-compliance matters significantly …

“APA challenges predicated on the IRS’s failure to adequately follow the APA’s notice-and-comment process are inherently fact-intensive endeavors …

“The challenging party should gauge the usefulness of the relief requested and balance that against the cost required to prevail …

“Ultimately, APA challenges are important, and may be necessary for a taxpayer to get to argue the merits of their case, but they do not often end the dispute with the IRS.”

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June 16, 2023
Ohio Supreme Court Ruling Sends Important Reminder: Long-Standing, Fundamental Principles of Insurance Policy Construction and Law Are Applicable to Cyber Claims

The Authors

Judy SelbyKennedys

Judy Selby (judy.selby@kennedyslaw.com) is a Partner at Kennedys (New York) where she focuses her practice primarily on insurance coverage matters with a concentration in coverage for exposures arising out of emerging technology, digital, and compliance risks.

Tracey KlineKennedys

Tracey M.Kline (tracey.kline@kennedyslaw.com) is an Associate at Kennedys (Philadelphia) where she focuses her practice primarily on insurance coverage litigation and cyber matters.

Emerging Litigation PodcastProduced by HB Litigation and Law Street Media

Interviews with leading attorneys and other subject matter experts on new twists in the law and how the law is responding to new twists in the world.

Ohio Supreme Court Ruling Sends Important Reminder:

Long-Standing, Fundamental Principles of Insurance Policy Construction and Law Are Applicable to Cyber Claims

Abstract: On December 27, 2022, the Ohio Supreme Court unanimously ruled that a business owner’s property insurance policy issued by Owners Insurance Co. to EMOI Services, LLC did not afford coverage for losses sustained in a ransomware attack because computer software is “entirely intangible” and “cannot experience ‘direct physical loss or physical damage.’” EMOI Servs., LLC. v. Owners Ins. Co., 2022-Ohio-4649 (Ohio 2022). In doing so, the court reversed an attention-getting split decision by the lower appellate court. This article takes an in-depth look at the case and discusses its significant implications.

The Ohio Supreme Court’s decision was based on its commonsense conclusions that software (as intangible property) cannot suffer physical damage, and that coverage for restoration of information under the Electronic Equipment Endorsement could not be triggered absent the threshold requirement of “direct physical loss or damage” to the media on which the information was stored. Although claims involving cyber events may be relatively new, this decision is an important reminder that long-standing, fundamental principles of insurance policy construction and law are applicable to cyber claims.

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June 16, 2023
Unarmed or Unwell: How Federal Law Infringes Medical Marijuana Users’ Second Amendment Rights

The Author

Griffen ThorneHarris Bricken

Griffen Thorne (griffen@harrisbricken.com) is an attorney in the Los Angeles office of Harris Bricken Sliwoski LLP, an international emerging markets law firm. He represents clients in highly regulated emerging industries, such as cannabis, in corporate and commercial transactions.

Emerging Litigation PodcastProduced by HB Litigation and Law Street Media

Interviews with leading attorneys and other subject matter experts on new twists in the law and how the law is responding to new twists in the world.

Unarmed or Unwell:
How Federal Law Infringes Medical Marijuana Users’ Second Amendment Rights

As Justice Amy Coney Barrett noted while on the Seventh Circuit, “legislatures have the power to prohibit dangerous people from possessing guns. But that power extends only to people who are dangerous.” In the coming years, the government’s ability to write off all medical marijuana users as dangerous is likely to be curtailed, even if the Controlled Substances Act continues to make marijuana use a federal crime.

Abstract: In the wake of the 2022 U.S. Supreme Court case New York State Rifle & Pistol Association, Inc. v. Bruen, federal courts have reached opposite outcomes on whether federal prohibitions on marijuana users’ rights to own or possess firearms are constitutional. As a result, there is a high likelihood of a circuit split that results in the overturning of those federal laws. The author discusses Bruen and several other cases at the intersection of drug laws and gun laws.

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June 14, 2023
Digital Health Care Companies, Beware: Federal Agencies Are Tracking Your Use of Online Tracking Technologies

The Authors

Patricia MarkusNelson Mullins

Patricia A. Markus (trish.markus@nelsonmullins.com) represents health care providers and health technology companies across the country on wide-ranging regulatory compliance, reimbursement, licensure, and operational matters, with a special focus on issues surrounding health information privacy, security, and technology.

Shane DuerNelson Mullins

Shane Duer (shane.duer@nelsonmullins.com) focuses his practice on healthcare regulatory and corporate matters, with an emphasis on data privacy, cyber security, and information management concerns within and beyond the health care industry.

Emerging Litigation PodcastProduced by HB Litigation and Law Street Media

Interviews with leading attorneys and other subject matter experts on new twists in the law and how the law is responding to new twists in the world.

Digital Health Care Companies, Beware

Federal Agencies Are Tracking Your Use of Online Tracking Technologies.

Abstract: Health care industry stakeholders have regularly used online tracking technologies to help improve patient experience. However, growing scrutiny by the Office for Civil Rights, which enforces the Health Insurance Portability and Accountability Act of 1996 (HIPAA), requires covered entities and business associates to proceed cautiously in their use of such technologies. In addition, recent enforcement actions by the Federal Trade Commission make clear that a wide range of digital health companies, whether or not regulated by HIPAA, must tread carefully when collecting and disclosing personal information related to health, especially where consumers’ location data is to be used for a company’s advertising purposes, as they may be held accountable for failing to maintain the privacy and security of individuals’ protected and individually identifiable health information.

The increasing number of lawsuits and news articles regarding use of these technologies demonstrates that third-party technology tracking vendors who receive PHI often are not operating under Business Associate Agreements (BAAs). The vendors in most instances disavow any need to collect PHI and accordingly instruct users to avoid sending PHI or other personally identifiable information. Under HIPAA, covered entities and business associates generally may not disclose PHI to third parties for health care operations purposes, unless such disclosure is to a business associate pursuant to a BAA, or the disclosure is made pursuant to an individual’s HIPAA-compliant authorization.

Not only does sharing PHI through third-party tracking technologies without individuals’ authorizations violate HIPAA, but the FTC has asserted in two recent enforcement actions that the collection and sharing of individuals’ IIHI through these technologies without individuals’ “affirmative express consent” constitutes unfair and deceptive trade practices.

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June 1, 2023
The Cannabis Employment Law Patchwork with Keya Denner
The Cannabis Employment Law Patchwork with Keya Denner

Maryland and Missouri are the latest states to legalize recreational cannabis for people 21 and older. Voters came out in favor of legalization in the November 2022 midterms, bringing the total recreational jurisdictions to 22 states and the District of Columbia. Voters in North Dakota, South Dakota, and Arkansas, however, decided against recreational marijuana. It remains legal for medical reasons in all five states.

In the employment context, both recreational and medicinal uses raise questions about protections for employees who use the drug legally.
- Which states are enacting those protections?
- What do multi-state employers need to do?
- What about drug testing? As a requirement to get a job and as a requirement to keep your job?
- What about this: who is going to say whether a worker is impaired? Will there really be hall monitors trained in spotting your high?
For answers to these questions and more, listen to my interview with Keya Denner, a partner at Constangy, Brooks, Smith & Prophete LLP. Keya is an experienced litigator who has been practicing labor and employment law for almost 20 years. Few attorneys nationwide match Keya’s expertise in the area of legal cannabis and its impact on the workplace. He has counseled Fortune 500 companies in the retail, hospitality, and global logistics spaces to create compliant policies and better understand the ever-changing legal landscape brought about by the legalization of cannabis across the United States. Most recently, Keya was named co-chair along with this colleague Ashley Orler of the firm’s new practice group focused on cannabis and employee substance abuse law. Keya received his J.D., cum laude, from Seton Hall University School of Law, J.D., cum laude, and his B.A., also cum laude, from Boston University.

This podcast is the audio companion to the Journal on Emerging Issues in Litigation. The Journal is a collaborative project between HB Litigation Conferences and the Fastcase legal research family, which includes Full Court Press, Law Street Media, and Docket Alarm. The podcast itself is a joint effort between HB and our friends at Law Street Media. If you have comments or wish to participate in one our projects please drop me a note at Editor@LitigationConferences.com.

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Keya DennerConstangy, Brooks, Smith & Prophete, LLP

Keya is an experienced litigator who has been practicing labor and employment law for almost 20 years. He has handled every type of labor and employment matter for his clients, ranging from discrimination, disability, non-compete and trade secret protections, to wage and hour class actions. Keya also has extensive experience counseling employers on matters relating to the Family and Medical Leave Act and the Americans with Disabilities Act.

Most recently, Keya was named co-chair along with this colleague Ashley Orler of the firm’s new practice group focused on cannabis and employee substance abuse law. Keya received his J.D., cum laude, from Seton Hall University School of Law, J.D., cum laude, and his B.A., also cum laude, from Boston University.
March 22, 2023
How Insurance Companies Defraud Their Policyholders, and What Courts and Legislators Should Do About It

The Authors

Robert D. CheslerAnderson Kill

Robert D. Chesler (rchesler@andersonkill.com) is a shareholder in Anderson Kill’s Newark office. Bob represents policyholders in a broad variety of coverage claims against their insurers and advises companies with respect to their insurance programs. Bob is also a member of Anderson Kill’s Cyber Insurance Recovery group.

Bob has served as the attorney of record in more than 30 reported insurance decisions, representing clients including General Electric, Ingersoll-Rand, Westinghouse, Schering, Chrysler, and Unilever, as well as many small businesses including gas stations and dry cleaners. He has received numerous professional accolades, including a top-tier ranking for Insurance Litigation: New Jersey in Chambers USA: American’s Leading Lawyers for Business, which dubs him a “dominant force in coverage disputes” and cites a client who calls him “a dean of the insurance Bar; one of the brightest in writing about and analyzing insurance coverage.”

Amy WeissAnderson Kill

Amy Weiss (aweiss@andersonkill.com) is a law clerk pending admission in Anderson Kill’s New York office. She focuses her practice on insurance recovery, exclusively on behalf of policyholders.

While attending the Benjamin N. Cardozo School of Law, Amy worked as a Summer Associate at Anderson Kill and a Judicial Intern for the Honorable Nicholas G. Garaufis at the United States District Court for the Eastern District of New York.

She served as Senior Articles Editor for the Cardozo Arts and Entertainment Law Journal, participated in the Cardozo Visual & Performing Arts Law Field Clinic, was a teaching assistant for the Lawyering & Legal writing course, and was a research assistant for Professor Stewart E. Sterk. Amy received the Dean’s Merit Scholarship and graduated with Honors.

Jade SobhAnderson Kill

Jade W. Sobh (jsobh@andersonkill.com) is an attorney in Anderson Kill’s New York office. Jade focuses his practice on both insurance recovery, exclusively on behalf of policyholders, as well as Government Enforcement, Internal Investigations, and White Collar Defense. Jade’s practice also encompasses regulatory and complex commercial litigation matters.

Prior to joining Anderson Kill, Jade was an associate at a leading New Jersey law firm, where he concentrated his practice in commercial litigation and criminal defense. His work there focused on corporate disputes, complex commercial litigation, real estate litigation, and appellate litigation. In his previous role, Jade also assisted in representing clients facing federal drug possession charges, and healthcare fraud allegations, among other criminal matters.

Previously, Jade was a law clerk to The Honorable Robert C. Wilson in the Superior Court of New Jersey, Civil Division. Jade worked with Judge Wilson on cases in Bergen County’s Complex Business Litigation Program including insurance recovery disputes, construction litigation, corporate ownership issues, breach of contract, arbitration agreements, and franchise agreements.

Emerging Litigation PodcastProduced by HB Litigation and Law Street Media

Interviews with leading attorneys and other subject matter experts on new twists in the law and how the law is responding to new twists in the world.

How Insurance Companies Defraud Their Policyholders

What Courts and Legislators Should Do About It

“By its very nature, fraud involves concealment and is difficult to detect. The overwhelming majority of victims of fraud do not even know that they have been defrauded when an insurance company denies their claim or cancels their policy, and have no recourse.”

Abstract: Insurance companies have legitimate reasons for denying claims, but sometimes denials or significant delays are the result of unfair practices or even fraud. Such actions may be systemic or undertaken by an individual. What rights do policyholders have? What can they do to combat illegitimate denials? What are the barriers individuals face when they are wrongfully denied coverage? Should there be a private right of action under the Unfair Trade Practices Act? Should policyholders’ attorneys’ fees be covered? What should courts and legislatures do to protect insurance consumers? In this article the authors answer these questions and more.

Download the article now!

Explore More from Anderson Kill!

Journal on Emerging Issues, Editorial Board of Advisors

The Use and Abuse of the Pollution Exclusion. By Dennis Artese, Jamie O’Neil, Robert Chesler

The Environmental, Social, and Governance Police Have Arrived: Is your Insurance Ready. Authors: Dennis Artese, Bob Chesler.

Podcast 1 of 2 series: PFAS Insurance Coverage with Jaana Pietari and Jim Fenstermacher and Litigation with Bob Chesler

Poscast 2 of 2 series: Insurance Coverage for PFAS Claims

How Insurance Companies Defraud Their Policyholders, and What Courts and Legislators Should Do About It. Authors: Robert Chesler, Amy Weiss, and Jade Sobh

Climate Change, ESG, D&O Insurance: Collision or Cooperation? By Robert D. Chesler, Dennis J. Artese and Joseph Villa

Remediating, Insuring, and Litigating PFAS Claims. By Dr. Jaana Pietari, PhD, MBA, PE, Jim Fenstermacher, PE, Dr. Michael Bock, PhD, MS, Robert D. Chesler and Nicholas M. Insua, Sheila Mulrennan, Robin Kelliher, Jason R. Waters

March 14, 2023