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Attorney Fees and Settlement Funds with Sam Dolce

Our Guest

Sam DolceAttorney

As an attorney at Milestone, Sam Dolce provides in-depth, comprehensive consultations with attorneys about qualified settlement funds, fee deferral, and settlement planning. He also oversees the establishment of QSFs.

Sam received a Bachelor of Arts in History from Macalester College, followed by a Juris Doctor from SUNY Buffalo Law School. He served as a participant in the New York State Pro Bono Scholar Program and has received multiple acknowledgements and awards for his dedication to pro bono service and social justice. As a subject matter expert, Sam is a regular speaker and presenter at academic and legal conferences regarding post-settlement strategies.

Attorney Fees and Settlement Funds with Sam Dolce

Uncle Sam has created a way for you keep more of your hard-won settlement or award, but there is much to consider and new information to weigh.

When a contingency fee case reaches a verdict or settlement, it’s a big day for a plaintiff attorney. You have worked hard and shouldered litigation costs — often for years without compensation — to achieve the best outcome for your client.

In this episode I get to speak with a financial management professional who specializes in advising trial attorneys how they can take full advantage of attorney fee structures. The concept of fee deferral arrangements may be familiar to you, but the landscape continues to evolve.

My guest is Sam Dolce, an attorney with Milestone, a financial firm that optimizes settlement funds for trial attorneys and plaintiffs. Sam consults with legal professionals about about Qualified Settlement Funds, fee deferrals, and settlement planning. Sam received his B.A. from Macalester College and his J.D. from SUNY Buffalo Law School. Thanks to Sam for sharing his insights.

On a previous episode you can hear Sam’s colleague, Erin Waas, who heads up the Milestone Foundation, a non-profit organization that provides low-cost funding to injured individuals in need of cash as their personal injury cases wind their way through court.

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.

August 2, 2022
Class Certification After Olean v. Bumble Bee with Jonathan Rubin of MoginRubin LLP
Featured Speaker

Jonathan RubinPartner

Jonathan focuses his practice exclusively on antitrust and competition law and policy. As a litigator, he has led trial teams in major antitrust cases in courts throughout the country. As a thought-leader in competition law, he has published in influential academic journals and has spoken to numerous professional groups, including the Directorate General for Competition of the European Commission, the Antitrust Section of the American Bar Association, the University of Wisconsin, and the American Antitrust Institute. Jonathan has also made several appearances before congressional committees.

More About Rubin

For more information please email Tom Hagy

Explore more from MoginRubin LLP!

Blog: Emboldened by New Resources and Expanded Authority, Feds Continue 10-Year Look Back at Chinese Investment. By Dan Mogin, Jonathan Rubin, Jennifer Oliver, and Timothy LaComb. List

OnDemand CLE Webinar: The Antitrust Case Against Google. Dan Mogin, Jonathan Rubin, Jennifer Oliver, Timothy LaComb, John Newman, Dr. Alan Grant

Blog: FTC’s Case Against Facebook Will Test the Flexibility of U.S. Antitrust Law.Authors: Jonathan Rubin and Jennifer Oliver, MoginRubin LLP

Blog: Full Ninth Circuit Removes Unwarranted Hurdles to Class Certification.

Journal: Policy Derailed: Can U.S. Antitrust Policy Toward Standard Essential Patents Get Back on Track by Jonathan Rubin

Webinar: Class Certification After Olean v. Bumble Bee with Jonathan Rubin, James Bogan lll, Jonathan Cohn, Bradley Hamburger.

Journal: FTC v. Amazon: Market Definitions and Section 5 of the FTC Act

Podcast: Algorithmic Software Facilitated Price Fixing with Jonathan Rubin

Plus, additional insights from the MoginRubin Blog.

Class Certification After Olean v. Bumble Bee

Expert Testimony, Uninjured Class Members, and Article III Standing

This CLE course will discuss the ramifications arising from the Ninth Circuit’s en banc decision in Olean Wholesale Grocery v. Bumble Bee Foods, 31 F.4th 651 (9th Cir. 2022) (en banc), addressing numerous important class certification issues. The program will address Olean’s critical holdings regarding the evidentiary burden under Rule 23, how expert testimony should be assessed at the class certification stage, and the relevance of injury and Article III standing to assessing Rule 23’s predominance requirement and the scope of a proposed class definition. The panel will discuss the impact Olean will have for both plaintiffs and defendants, and will assess how lower courts have reacted to this important Ninth Circuit ruling.

Description

Olean addresses numerous key class certification issues and outlines a refined framework for class certification that may extend beyond the Ninth Circuit. The decision clarifies the burden of proof under Rule 23 and a district court’s obligation to assess both the admissibility of expert evidence and its adequacy to satisfy the prerequisites of Rule 23. Counsel will need to understand Olean’s holding regarding uninjured class members. While the Ninth Circuit rejected a categorical rule that a class cannot be certified if it includes more than a de minimis number of uninjured members, it emphasized that injury, both as an element of the underlying claim and as a requirement of Article III, is an essential issue in determining whether Rule 23(b)(3)’s predominance requirement is satisfied.

Listen as this panel of preeminent class action lawyers discusses how Olean will affect certification and offers new strategies to consider. Get the history of the case, its key holdings and strategies for applying them, and recent decisions applying it.

The panel will discuss these and other critical issues:
- How will the issue of uninjured class members impact class certification after Olean?
- How will Olean change the use of expert testimony at the class certification stage?
- How will Olean’s guidance impact consumer and employment class actions?
The speakers:

Jonathan Rubin, Partner, MoginRubin LLP

James F. Bogan, III, Partner, Kilpatrick Townsend & Stockton

Jonathan F. Cohn, Partner, Sidley Austin

Bradley J. Hamburger, Partner, Gibson Dunn & Crutcher
July 19, 2022
Under Pressure: How’s the Integrity of Your Supply Chain? — with Dan Mogin and Travis Miller

Our Guests

Travis Miller Assent Compliance Inc.

Travis is an international trade and compliance attorney who specializes in ITAR/EAR/sanctions, global anti-corruption and anti-slavery, codes of conduct, environmental health and safety, product stewardship, and corporate social responsibility.

Travis manages Assent’s worldwide legal activities, advises the Board of Directors on legal matters, and oversees corporate compliance, governance initiatives, and other commercial transactions. Before coming to Assent, he served in various high-level counsel positions with companies such as Microchip Technology, Foresite Group, and St. Jude Medical.

Dan MoginMogin Rubin LLP

Dan Mogin is co-founding and managing partner of MoginRubin LLP, a leading boutique law firm that focuses on antitrust law and other complex business disputes. A true thought leader in the field, Dan has served as lead counsel in numerous large antitrust cases, chaired the Antitrust Section of the California Bar, taught antitrust law, and was editor-in-chief of a leading competition law treatise.

Under Pressure: How’s the Integrity of Your Supply Chain? — with Dan Mogin and Travis Miller

Pressure builds when budgets are cut and fewer resources are available to maintain the necessary vigilance to remain compliant with often complex and changing regulations.

Corporate risk can be caused by laxity, inattention, misconduct, unethical behavior, or even illegal activities by people and organizations in your supply chain. Often these things are what happen when people are under pressure. They may feel pressure to bend rules to hit sales targets, or they feel significant competitive pressure.

Listen to my interview in two acts with Travis Miller, General Counsel at Assent Compliance Inc. and Dan Mogin is co-founding and managing partner of MoginRubin LLP, a leading boutique law firm that focuses on antitrust law and other complex business disputes. In Act 1 we discuss the conduct of a fictitious airline that is marketing itself as a green company and its competitors are crying foul, and by that I mean suing them. In Act 2 a fictitious semiconductor manufacturer that is allegedly using its considerable market power to trounce competitors. The fictitious scenarios involving these fictitious companies are as follows:

Act 1: Greenwashing by AirGreen Corp.

Commercial jets disproportionately spew high amounts of carbon into the atmosphere. There is no practical way to significantly reduce these harmful pollutants. Corporations are under pressure to be environmentally responsible, and demonstrate they are genuinely embracing the ESG movement. When it comes to carbon neutrality, the FTC says companies should not make “broad, unqualified” claims that they are running green businesses without “reliable scientific evidence” that their carbon offsets will have a timely impact. AirGreen, a major yet fictitious air shipping company, launched a global ad campaign called Super Green Air, dubbing itself the first commercial airline to be carbon neutral. AirGreen hasn’t actually reduced harmful emissions from its flights. Instead, it has purchased carbon offsets, which means it paid to reduce the emissions from other sources, while not actually reducing its carbon footprint. AirGreen’s competitors have filed suits and complaints with the FTC that this is false advertising that gives AirGreen a competitive edge in the air shipping market.

Act 2: MegaTech Monopolizing Semiconductor Chips (starts at minute 47:47)

The global semiconductor industry makes products that run the world. They’re in PCs, large mainframes, smartphones, cable and internet equipment, electric cars, and wind turbines. The demand for silicon chips is enormous. These chips are manufactured by a dirty, environmentally unfriendly process. Their manufacture also relies on a “complex, dynamic and multidirectional global supply and services matrix” (aka supply chain). Recent clogs in that supply chain caused by the Covid pandemic and Russia’s invasion of Ukraine demonstrate that. When people think of monopolies, they think of big conglomerates that control huge markets, like AT&T and Microsoft. AT&T ruled over telephone communications without competition for years. They were “the phone company.” If you wanted assistance their number was “0.” In the case of Microsoft, it controlled more than 95% of the PC operating system market. But monopolies can also mean dominance of one specific piece of one specific product maybe even in a specific region. You could have a monopoly if you made all cell phones, or you could hold a monopoly if you make a component that makes all cellphones work. MegaTech is one such company, albeit a fictitious one. It makes the chip that makes your cable box work. In fact, they are the only maker of these chips. MegaTech has already been investigated and sued by the FTC. It has already agreed to stop anticompetitive conduct such as exclusivity arrangements with its customers. And, it has already broken that promise and is being investigated again. Some of its suppliers are considering major litigation, too.

We discuss these scenarios from the perspectives of in-house compliance and legal professionals, outside counsel specializing in competition law, and a journalist covering the legal industry.

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.

Tom Hagy
Litigation Enthusiast and
Host of the Emerging Litigation Podcast

p.s. I add brief insights, humbly, on behalf of the Fourth Estate. In so doing, I also demonstrate why — if you’re no good at multitasking — don’t. Especially around smart people who are really paying attention. Also, if at some point you think you hear birds chirping, it might be time to see someone. Special thanks to our sound engineer, Jordan Forbes.

June 30, 2022
The “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021” Finally Levels the Playing Field by Kathryn Hatfield

The Author

Kathryn HatfieldHatfield | Schwartz Law Group

Kathryn V. Hatfield (khatfield@hatfieldschwartzlaw.com) is a
partner in the women-owned law firm of Hatfield Schwartz Law Group
LLC where she focuses on advising and representing management in
labor and employment law matters. Kathryn is a member of the Editorial Advisory Board 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.

The “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021” Finally Levels the Playing Field

“While arbitration offers privacy and confidentiality, it is for exactly these reasons that the #MeToo movement developed. Moreover, other than perhaps the differences in the speed of the two processes, the advantages of arbitration can be flipped on their head and become disadvantages.”

Abstract: The Equal Employment Opportunity Center alone receives on average approximately 7,000 sexual harassment claims a year, a figure that does not include claims filed with state and local agencies. The cost of resolving these claims logged by the EEOC averages $63 million a year based on the past four years. On average, there are nearly 464,000 victims (age 12 or older) of rape and sexual assault in the United States each year. The Centers for Disease Control and Prevention reports that nearly 1 in 5 women in America experiences a rape or attempted rape, and nearly 44 percent of women and about 25 percent of all men experience some form of sexual violence in their lifetime. A White House statement called sexual assault a “public health crisis.” But victims of sexual harassment and assault in the workplace have not had open access to the courts due to mandatory arbitration clauses in their employment agreements. In this article, an experienced labor law attorney discusses a new law that puts an end to forced arbitration, what it means to existing claims, and its impact on victims, employees, and employers.

Introduction

The Act adds a new section to the Federal Arbitration Act (FAA). The FAA was passed in 1925 to ensure that courts enforce arbitration agreements contained in “a contract evidencing a transaction involving commerce.” See 9 U.S.C. § 2. Although the FAA was intended to address maritime and commercial disputes, in a series of decisions beginning in the 1980s, the United States Supreme Court “dramatically expanded the applicability of the FAA to arbitration clauses in everyday contracts.” See House Judiciary Committee Report.

According to that Report, the Supreme Court “has upheld the enforcement of arbitration clauses even when doing so prevents an individual from vindicating a state or federal statutory right. Furthermore, by imposing arbitration on a ‘take it or leave it’ basis, large companies have largely eviscerated the congressional intent of arbitration as a voluntary process agreed to between parties of equal bargaining power.” Id. Ultimately, in 1991, the Supreme Court ruled that an employee whose employment contract contained an arbitration provision was required to arbitrate her claims, thus bringing arbitration mandates into the workplace. See Gilmer v. Interstate/ Johnson Lane, 500 U.S. 20 (1991). Twenty years later, the Supreme Court expanded its jurisprudence on forced arbitration in AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011), and American Express Co. v. Italian Colors Restaurant, 570 U.S. 228 (2013), holding that class action waivers in mandatory arbitration agreements were broadly enforceable. The combination of this case law ensured that employers could now protect themselves from court litigation for both individual and class action claims.

Arbitration requirements are now widespread in consumer contracts and, often, consumers are unaware that they are entering into forced arbitration agreements. Most arbitration clauses are found in application forms, employment contracts, employee handbooks, privacy policies, and even monthly billing statements. The House Judiciary Report noted that these clauses are hidden in order to prevent consumers from pursuing their claims in court and gave an example highlighting the inequity of forced arbitration. In that case, Massage Envy, the largest massage chain in the country, compelled victims of sexual assault to arbitrate their claims and refused to allow women to cancel their monthly membership unless they agreed to forced arbitration …. keep reading!

Download the article now!

June 22, 2022
Alternative Financial Support for Plaintiffs During Litigation with Erin Waas

Our Guest

Erin WaasThe Milestone Foundation

Erin Waas is Executive Director of The Milestone Foundation, a national 501(c)(3) nonprofit that provides financial assistance to people pursuing a personal injury lawsuit. Erin brings nearly two decades of experience working in the public sector and with nonprofits in fundraising and communications, most recently at the University at Buffalo, where she served as senior advancement writer.

Prior to relocating to Buffalo, Erin spent the bulk of her career to-date in Boston, where she worked in stewardship at Harvard University and as a consultant for nonprofits of all sizes.

Alternative Financial Support for Plaintiffs During Litigation with Erin Waas

For an individual, merely navigating litigation can be expensive, time consuming, and at times overwhelming. But when that individual is also unable to work, or cannot function normally because they have been disabled by an injury, that explodes the level of stress on a person and their family.

There are companies in the “non-recourse settlement advancement” space that will provide financial support to claimants in litigation. This helps them with their regular daily expenses – plus medical costs – until their case settles or until they receive an award. But most of these companies, as you can imagine, are for-profit entities. As such, their fees can make their support unaffordable and can leave the plaintiff with a substantially diminished payout.

Listen to my interview with Erin Waas, Executive Director of The Milestone Foundation, a national 501(c)(3) nonprofit that provides financial assistance to people pursuing a personal injury lawsuit. Erin brings nearly two decades of experience working in the public sector and with nonprofits in fundraising and communications, most recently at the University at Buffalo, where she served as senior advancement writer. Prior to relocating to Buffalo, Erin spent the bulk of her career to-date in Boston, where she worked in stewardship at Harvard University and as a consultant for nonprofits of all sizes. Speaking of fundraising, and if you believe in the cause, consider supporting the Foundation with a donation today.

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.

Tom Hagy
Host
Emerging Litigation Podcast

June 21, 2022
Antiracism and Antitrust with Eric Cramer

Our Guest

Eric L. CramerBerger | Montague

Eric Cramer is Chairman of the Firm and Co-Chair of the Firm’s antitrust department. He has a national practice in the field of complex litigation, primarily in the area of antitrust class actions. He is currently co-lead counsel in multiple significant antitrust class actions across the country in a variety of industries and is responsible for winning numerous significant settlements for his clients totaling well over $3 billion.

Mr. Cramer is also a frequent speaker at antitrust and litigation related conferences and a leader of multiple non-profit advocacy groups. He was the only Plaintiffs’ lawyer selected to serve on the American Bar Association’s Antitrust Section Transition Report Task Force delivered to the incoming Obama Administration in 2012.

Antiracism and Antitrust with Eric Cramer

Among the legal and regulatory avenues one might follow to mitigate the impact of racism, most of us would look to various manifestations of discrimination law in employment, lending, real estate, education, healthcare, voting rights, and other categories. When presented in those contexts, the anti-racism objectives are clear.

There are several federal laws and many state laws that prohibit anticompetitive behavior. At the top of the heap is the Sherman Antirust Act of 1890, which outlaws illegal monopolies and anticompetitive tactics, conspiracies to restrain trade, cartels and syndicates. But what do wages, including those paid to minorities, have to do with antitrust? What about no-poach agreements, whereby groups of companies agree not to hire employees away from each other? The answer is “quite a lot.”

Listen to my interview with Eric Cramer, Chairman of Berger Montague and co-chair of the firm’s antitrust department, a team that handles antitrust class actions across the country involving a variety of industries. Eric and the firm are responsible for winning numerous significant settlements for clients — a total value that now exceeds $3 billion. His recent focus has been representing workers who allege their employers’ anticompetitive practices suppressed their pay. Recipient of numerous accolades and awards that include terms like titan, elite, thought leader, visionary, and lawyer of the year, Eric is a summa cum laude graduate of Princeton University where he earned membership in Phi Beta Kappa, and a cum laude graduate of Harvard Law School. Listen to what he had to say about this important subject.

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.

Tom Hagy
Litigation Enthusiast and
Host of the Emerging Litigation Podcast

June 20, 2022
Wildfire Claims and Coverage

The Authors

Scott DeVriesHunton Andrews Kurth LLP

Scott P. DeVries (sdevries@huntonak.com) is a special counsel
in the Hunton Andrews Kurth LLP’s Insurance Coverage group in the
firm’s San Francisco office where he exclusively represents policyholder
clients. An experienced trial and appellate lawyer who has served as lead
counsel in landmark appeals in the field of insurance coverage in the
California Supreme Court, the Ninth Circuit, and the California Court
of Appeal, as well as high-value jury trials, Scott routinely represents
clients throughout the country seeking recovery from their insurers
on a wide range of insurance issues arising under first-party property
policies, comprehensive general liability policies, directors and officers
policies, EPLI policies, crime policies, crypto and digital asset policies,
and cyber policies.

Yosef ItkinHunton Andrews Kurth LLP

Yosef Itkin is an associate in Hunton Andrews Kurth LLP’s Insurance Coverage group in the firm’s Los Angeles office. His practice focuses on representing and advising
corporate policyholders in complex insurance coverage 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.

Wildfire Claims and Coverage

“The wildfires are causing enormous losses for innumerable businesses on the West Coast. Often, you should be able to work with your adjuster to reach a satisfactory resolution. But where needed, you may wish to reach out to policyholder-side lawyers—whether to test what you may be entitled to or to help maximize recovery.”

Abstract: Wildfires destroy millions of acres a year in the United States, spewing smoke across much of the nation. The cost of damage alone over the past several years soars into the hundreds of billions. When policyholders turn to their insurers many benefit from the coverage they wisely secured. But not all policyholders get the coverage they believe they paid for. When and how they present their claims is a critical factor. In this article, the authors strive to provide a comprehensive understanding of coverage risks, the regulatory landscape, and navigating the all-important claims process.

Sparked by lightning storms, devastating wildfires claimed more than 10 million acres in 2020, releasing substantial amounts of smoke above the western United States. Accuweather founder and CEO Dr. Joel N. Myers called 2020 “the worst fire season in history,” and estimated that the total damage and economic loss would be between $130 billion and $150 billion. And 2021 was not any better. According to the Insurance Information Institute, in 2021, while the hottest temperatures on record were recorded in California, Nevada, Oregon, Washington, and Arizona, and drought conditions reached an all-time high, the number of wildfires remained approximately the same (58,900) although the number of acres destroyed reduced to 7.1 million acres from the year before. Some of the wildfires were among the largest on record with the Bootleg Fire in Oregon destroying 400,000 acres and the Marshall Fire in Colorado causing an estimated $1 billion in losses.

Fortunately, many individuals and businesses are fully insured, and most insurance companies work with policyholders to process claims and help them rebuild and get them back up and running. However, it does not always work that way for every insured. While property insurance may cover much of the losses from wildfires and other catastrophic events, not every policyholder is made whole or anything approaching this. And even for those that are fully insured, when and how to present a claim can materially affect how much they recover and when. This can be extraordinarily difficult at any time, but especially when a fire has destroyed everything.

Download the article now!

June 14, 2022
Biometric Privacy Laws: Companies Will Need Insurance as Protection From New and Expanding Liability

The Authors

Cort T. MaloneAnderson Kill P.C.

* Cort T. Malone (cmalone@andersonkill.com) is a shareholder
in the New York and Stamford offices of Anderson Kill and practices
in the Insurance Recovery and the Corporate and Commercial Litigation Departments. He represents policyholders in insurance coverage litigation and dispute resolution, with an emphasis on commercia general liability insurance, directors and officers insurance, employment practices liability insurance, advertising injury insurance, and property insurance issues.

Jade SobhAnderson Kill P.C.

Jade W. Sobh (jsobh@andersonkill.com) is an attorney in Anderson Kill’s New York office. Jade focuses his practice on insurance recovery, exclusively on behalf of policyholders, as well as regulatory and complex commercial litigation 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.

Biometric Privacy Laws:

Companies Will Need Insurance as Protection From New and Expanding Liability

“Businesses may look to various types of insurance policies for protection from the sudden and ever-increasing liability under present and soon to pass biometric data privacy laws, including commercial general liability insurance, employment practices liability insurance, cyber insurance, and directors & officers (D&O) insurance.”

Abstract: As more states follow Illinois in enacting biometric privacy laws, the risk that companies will be hit with lawsuits and extensive damages awards increases. Employers are among the most active collectors of this type of data, collecting fingerprints and deploying facial recognition for timekeeping and security purposes. Several multi-million-dollar settlements have been reported for violations of biometric privacy laws. Meta, formerly Facebook, paid $650 million to resolve claims that it improperly stored face scans of its users. When companies turn to their insurance carriers, policyholders have a good track record of receiving coverage. Now that these claims are becoming more prevalent, will the insurance industry work to limit its exposure in this space? What should policyholders do in the event the industry is successful? In this article, the authors provide background on these emerging privacy laws, how they have played out in court, and what
types of policies companies should consider to be sure they have the necessary protection.

At least seven states have passed biometric privacy laws specifically intended to protect individuals from the collection, use, and sale of their personal biometric identifiable information. Several of these laws allow for extensive damages awards regardless of whether individuals suffered any actual harm as a result of the nonconsensual collection of biometric data. The companies facing class action lawsuits as a result should look to insurance to cover such claims, as the initial litigation with insurance companies has provided favorable results to policyholders. But insurance companies surely will seek to limit future exposure related to biometric privacy law violations, and companies either using biometrics or potentially doing so in the future would be wise to seek and maintain the broadest possible coverage.

Biometric Identifiable Information (BII) is generally defined as any physiological or biological characteristic that is used by or on behalf of a commercial establishment to identify an individual. BII may take the form of a retina scan, a fingerprint, a voiceprint, a scan of hand or face geometry, or any other identifying characteristic.

Download the article now!

Read, listen, explore more content on the subject!

Podcast: Biometric Privacy Litigation and Coverage Disputes with John Leonard and Cort Malone

Podcast: Autonomous Vehicles: The New Technology Driving the Litigation Conversation with Cort Malone and John Leonard

JEIL: Litigation After Biometric Privacy Law Violations: Policyholder Victories and Their Implications with Cort Malone and Abigal Damsky

JEIL: Autonomous Vehicles: The New Technology Driving the Litigation Conversation with Cort Malone, John Leonard, Joshua Zelen

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June 14, 2022
Asymmetrical Combat: Bad Faith Liability in Insurance Recovery Cases

The Author

William PassannanteAnderson Kill P.C.

William G. Passannante is co-chair of Anderson Kill’s Insurance Recovery Group and is a nationally recognized authority on policyholder insurance recovery in D&O, E&O, asbestos, environmental, property, food-borne illness, and other insurance disputes, with an emphasis on insurance recovery for corporate policyholders and educational and governmental institutions.

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.

Asymmetrical Combat: Bad Faith Liability in Insurance Recovery Cases

“Insurance policies are a unique product that requires the policyholder perform first—by paying insurance premiums—while the insurance company’s performance—the payment of the claim amount—is delayed until the insurance company determines to do so.”

Abstract: Policyholder counsel see claims that an insurer violated its duty of good faith and fair dealing is an essential tool in leveling the playing field in policyholder–insurer disputes, especially in high-stakes litigation. Insurance companies write the policies, employ lobbyists, exchange information with each other, and, of course, have more experience handling claims. So, the author writes, bad faith allegations bring more balance to the relationship and provide a disincentive to “the profitable breach of the insurance promise.” He discusses above-policy limits risks for insurers, as well as attorneys’ fees, interest on unpaid claims, punitive damages, and more.

Introduction: Bad faith insurance litigation presents high-stakes risks for insurance companies in the unbalanced battle between insurance companies and their policyholders. The asymmetric nature of the insurance claims process—insurance companies draft the insurance policies, lobby legislatures as an industry repeat litigant, exchange superior information among themselves, and have more experience with claims than any policyholder—means that policyholders need a counterbalance. Insurance company liability for bad faith and related above-policy limits liabilities can act as that counterbalance. Insurance company bad faith and related doctrines prove useful because of the claims-handling calculus used to attempt to avoid coverage for a claim.

Without more an insurance company denying a claim faces what it did at the outset—the amount of the covered claim. Insurance companies thus engage in the profitable breach of the insurance promise. Most purchasers of the insurance product would think of their insurance company as a fiduciary or trustee from whom one can expect scrupulous candor. At claims time many policyholders do not receive what they expect. Still, hornbook contract law tells policyholders that every insurance policy contains within it a duty of good faith and fair dealing enforcing that duty of good faith and fair dealing helps level the insurance claim playing field . . . .

Download the article now!

June 14, 2022
Episode Three: Karla Gilbride Tells Her Story Behind the Unanimous Pro-Employee Win at the Supreme Court

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Karla Gilbride Tells Her Story Behind the Unanimous Pro-Employee Win at the Supreme Court

The Federal Arbitration Act is clear, Supreme Court Justice Elena Kagan wrote: “[C]ourts are not to create arbitration-specific procedural rules …. Or put conversely, it is a bar on using custom-made rules, to tilt the playing field in favor of (or against) arbitration.”

With the support of all eight of her colleagues, Justice Kagan’s opinion in Morgan v. Sundance put an end to the long-running tilt of justice toward employers in the form of judge-made rules that favor arbitration. This important holding clears the way for more workers, consumers, and other individuals harmed by corporate misconduct to pursue their rights in open court.

Karla Gilbride, Senior Attorney at Public Justice, argued the case to the high court on behalf of the plaintiff, Robyn Morgan, an hourly employee at a Taco Bell franchise owned by Sundance, Inc. It was not only Gilbride’s first Supreme Court argument, but she was the first blind attorney to do so in the court’s history.

Listen to Public Justice’s Ellen Noble — who assisted in the case — as she interviews Gilbride about her remarkable experience. This is a must listen not only for attorneys who represent workers, but for anyone interested in Supreme Court history, or the ongoing need for accommodations for the disabled, or anyone preparing for oral arguments at any level. Gilbride shares the thrill of arguing in the same spot — and directly in front of! — some of her heroes and inspirations. She also shares that, like a music fan who camps out in front of a box office to get tickets for their favorite band, a young Gilbride did just that in order to secure a seat to observe her first Supreme Court argument.

After you listen to the podcast, you can hear Gilbride’s argument and read the complete transcript of the hearing. You can also read and watch more about the case on the Public Justice Blog.

I hope you find this the episode inspiring and informative! We are all so very proud of Karla, Ellen and the whole team, and are thrilled with the important, decisive, and unanimous outcome they achieved.

Susan Gombert
Host
Justice Pod: Conversations with Public Justice Change Makers

Listen Now!

The Supreme Court has finally “put an end to the arbitration exceptionalism that many corporations have been seeking, and that many courts have been giving them.”

Karla Gilbride

June 14, 2022