HB Litigation News

Tag: Emerging Litigation & Risk

Litigation’s Role in Gun Safety Advocacy: An Interview With Adam Skaggs of Giffords

Read the article

We’re closing in on 400 million guns in America, weapons that have been used to kill 1.5 million Americans between 1968 and 2017. Can litigation be an effective tool in curbing this loss of life?

In 2020 alone there were more than 45,000 gun deaths. The beyond tragic and senseless mass shootings at schools has become all too routine. Most Americans want stricter gun laws which they believe will reduce the senseless killing in our country, which leads the world in both the number of privately owned firearms and gun-related deaths.

The Supreme Court, of course, didn’t take public opinion into account when it struck down a more than century old New York City ban on concealed firearms. Politicians do, however, pay close attention to polls. At the federal level, President Joe Biden signed a bipartisan law designed to make Americans safer in our gun-toting nation. Hailed as a “great start” and a rare but welcome exercise in reaching across the aisle, the law will result in safer citizens, but didn’t include much of what gun advocates say is really needed to effect meaningful change. In California, Governor Gavin Newsom signed a new law that gives citizens incentives to pursue gun manufacturers and dealers who sell illegal firearms. In New York, Democratic leaders, undaunted by the Supreme Court, have pushed through new gun restrictions at vulnerable locations like schools, malls, and stadiums.

But what can lawyers and lawsuits do about it? Plenty. What reasonable measurers can be put into place that will not infringe on Second Amendment rights? Several. Are we seeing litigation over these issues? You bet.

For more specifics, read or listen to my interview with Adam Skaggs, chief counsel and policy director at leading gun safety advocacy group Giffords Law Center, co-founded by former Congresswoman Gabby Giffords. Prior to Giffords Law Center Adam was senior counsel at Everytown for Gun Safety and at the Brennan Center for Justice, where he worked on election law issues. Adam’s commentary has been published in Slate, Politico, the Atlantic, and the New York Times, among other publications, and he has been widely quoted by media ranging from the Wall Street Journal and Fox News to the New York Times and MSNBC. Adam graduated summa cum laude from Brooklyn Law School, received an MS in Urban Affairs from Hunter College of the City University of New York, and holds a BA, awarded with distinction, from Swarthmore College.

If you would like to learn more about Giffords Law Center and how you can get engaged, please reach out to to them. You may also email Adam directly.

The 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.

Gun Safety: The Role of Litigation in Advocacy

Adam SkaggsChief Counsel & Policy Director

Adam Skaggs serves as Giffords Law Center’s chief counsel and policy director. Previously, he was senior counsel at Everytown for Gun Safety and at the Brennan Center for Justice, where he worked on election law issues. Adam was also a litigation associate at Paul, Weiss, Rifkind, Wharton & Garrison and a law clerk at the Eleventh Circuit and the US District Court for the Eastern District of New York.

Adam’s commentary has been published in Slate, Politico, the Atlantic, and the New York Times, among other publications, and he has been widely quoted by media ranging from the Wall Street Journal and Fox News to the New York Times and MSNBC.

Adam graduated summa cum laude from Brooklyn Law School, received an MS in Urban Affairs from Hunter College of the City University of New York, and holds a BA, awarded with distinction, from Swarthmore College.

Listen

October 14, 2022
Covid Insurance Coverage Decisions with Guest Marshall Gilinsky. Are Policyholders Catching Up?

According to the online Covid Coverage Litigation Tracker (CCLT) run by Penn Law there have been more than 2,300 insurance coverage cases filed over denial of claims relating to Covid-19. Restaurants and bars were hardest hit by the pandemic and so led the way in seeking – and being denied – coverage, too. They are also leading the way in suing their insurers. The top five insurers in the defense position are Chubb Limited at #5, then #4 Lloyds of London, #3 Cincinnati Financial, and #2 Zurich. And in the #1 position facing the most coverage suits is Hartford.

The insurance industry started off strong when this litigation began, winning the vast majority of the coverage suits. And they continue to do well, scoring with the argument that many of the claims do not involve actual property damage. Government closures don’t cause property damage, they argue. Courts have largely been siding with the carriers – but not all. Policyholders, a tenacious bunch, appear to be chipping away at the body of law in this suddenly expanding category.

A recent case involving a New Orleans restaurant against Lloyd’s was penciled into the win column for carriers by a trial court , but an appeals court erased it and wrote the policyholder a narrow 3-2 victory. The appeals court said the language of the policy was ambiguous, and therefore had to be construed in favor of the restaurant. What’s it mean? Does this bode well for policyholders? Or can we expect to see, as we did in previous coverage wars, a mixed bag of decisions across the nation?

For more on that case and today’s Covid coverage landscape, listen to my interview with Marshall Gilinsky, a shareholder in the New York office of Anderson Kill. Marshall has represented policyholders of various policy types for two decades, including those seeking coverage in the aftermath of the 9/11 attacks, Hurricane Katrina, and Superstorm Sandy. Thanks to Marshall for sharing his insights.

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.

P.S. Please excuse my periodic memory lane strolls as I waxed nostalgic while stroking the gray bristles of my chin about the pollution exclusion, the sudden and accidental exception to the exclusion, and, you know, what really does it mean for something to “occur”? I’ve led a heart-stopping existence. And so can you.

(actual size)

Tom Hagy
Host
Emerging Litigation Podcast

Marshall GilinskyAnderson Kill

Marshall Gilinsky is a shareholder in the New York office of Anderson Kill and practices in the firm’s Insurance Recovery and Commercial Litigation Departments. Marshall is co-chair of the firm’s Sexual Harassment and Abuse Insurance Recovery Group, and a member of the firm’s Banking and Lending Group and Hospitality Industry Practice Group.

During his 20-year career representing policyholders, Marshall has recovered hundreds of millions of dollars for his clients, successfully litigating disputed claims under a variety of insurance products, including property and business interruption insurance, commercial general liability (CGL) insurance, errors and omissions (E&O) insurance, directors’ and officers’ (D&O) insurance and life insurance. Marshall has represented clients on numerous high-stakes, complex insurance claims arising out of prominent losses such as 9/11, Hurricane Katrina, Superstorm Sandy and the “Big Dig” in Boston. He also focuses extensively on assisting clients that own and manage captive insurance companies, especially with respect to resolving coverage disputes between the captive and its reinsurers.

September 22, 2022
EMR Audit Trail—What Is It? Why Do They Matter? What Should You Look For? by Haley K. Grieco and Brooke E. Reddin

The Authors

Haley GriecoHall Booth Smith

Haley K. Grieco (hgrieco@hallboothsmith.com) is a partner in the Paramus, New Jersey, office of Hall Booth Smith, where she defends physicians, hospitals, and other healthcare providers in a wide range of medical malpractice litigation.

Brooke ReddinHall Booth Smith

Brooke E. Reddin (breddin@hallboothsmith.com) is an associate with the firm, where she focuses her practice on healthcare, medical malpractice, and aging services 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.

EMR Audit Trail—What Is It? Why Do They Matter? What Should You Look For?

“As the healthcare industry becomes increasingly digitized, it is imperative that attorneys appreciate the impact it may have on their clients and their practice. In medical malpractice matters, discovery requests for metadata—specifically, the production of the EMR audit trail—has steadily increased over the past few years.”

Abstract: Maintaining electronic medical records, or EMRs, is now a nearly universal best practice among medical providers from small physician practices to large hospital networks. Unlike handwritten or typed records, these digital documents carry with them much more data than meets the eye. In this article, the authors—two medical malpractice attorneys— discuss what attorneys need to know about EMRs in the litigation context and the metadata bread crumb trail they leave behind. They discuss the types of data involved, federal requirements, discovery considerations, privacy implications, and the pros and cons and risks of using these records in defending healthcare providers.

During the past ten years electronic medical records (EMR) have all but rendered obsolete handwritten medical records. Medical providers have had to learn computer systems, programs, software, hardware, and forms like never before. When hospitals, facilities, and medical offices change EMR systems, the process of learning the new system starts over. But what about the data you do not see? What lurks beneath the surface of the records that providers never see?

This article looks at EMR from the perspective of the individual seeking to understand the data retrospectively in the context of a pending litigation rather than the requirements for those developing and maintaining EMR.

Download the article now!

September 20, 2022
Employers Be WARNed: Workforce Reduction Rules Meet New Workplace Definitions as Employees Go Remote by Juan Enjamio and Steven DiBeneditto

The Authors:

Juan EnjamioHunton Andrews Kurth

Juan C. Enjamio (jenjamio@huntonak.com) is managing parter of the Miami office of Hunton Andrews Kurth where he dedicates his practice to complex domestic and international employment law matters.

Steven DiBeneditto Jr.Hunton Andrews Kurth

Steven J. DiBeneditto Jr. (sdibeneditto@huntonak.com) is a Washington, DC-based associate in the firm’s employment and labor group.

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.

Employers Be WARNed

Workforce Reduction Rules Meet New Workplace Definitions as Employees Go Remote

“Numerous courts have opined that a “home base” is a place in which the employee has some sort of physical connection. But this connection must be more than a “notional” base, whereby the employee has a menial relationship.”

Introduction

A common sentiment during the Covid-19 pandemic was that a different society would emerge from its ashes. While overstated in many cases, one segment of society that appears to have changed for good is the white collar workplace. Indeed, after enjoying the flexibility of working from home for more than 2 years, many white collar workers are demanding that a remote work option remain a permanent fixture at their place of employment. And with seemingly no negotiating leverage due to worker shortages across the country, employers have mostly acceded to these demands, with many opting to implement a “hybrid” workforce where employees work from home for part of the work week and transit to the physical workplace for the rest of the week. Other employers have opted to have employees work entirely from home in what is now generally known as a “remote” employee.

But widespread adoption of a Hybrid Workforce presents a complex set of legal challenges for employers. These challenges are especially prevalent when making employment decisions using laws that were drafted decades ago to a new workplace that was never considered during the laws’ enactment. Nowhere is this problem more apparent than with the Worker Adjustment and Retraining Notification (“WARN”) Act, a statute adopted almost four decades ago in 1988. Simply put, the WARN Act sets forth notice requirements for employers who plan to close a plant or implement a reduction in force. Yet the WARN Act’s reduction in force provisions apply only to “single sites of employment,” which has been traditionally understood to mean a physical building or a group of buildings in contiguous locations. This single site of employment definition makes the WARN Act ill-suited to address the emerging (but ubiquitous) issue of workers who are dispersed, e.g. Remote and Hybrid Workplaces.

With that in mind, this article seeks to highlight the issues with the WARN Act and Remote and Hybrid Workplaces and package them into a guide for employers. The article begins by summarizing the WARN Act and the regulations for single sites of employment. It then shifts to a recent district court case analyzing the issue of Remote Work under the WARN Act for purposes of Rule 23(b)(3)’s predominance requirement for class certification. The article concludes by offering some suggestions to help prevent WARN Act liability.

Download the article now!

September 6, 2022
The Role of Litigation and Regulation in Making the Web More Accessible with Guests Ken Nakata and Hiram Kuykendall

According to the International Agency for the Prevention of Blindness there are 43 million people around the world living with blindness, and 300 million living with moderate to severe visual impairment. Put those statistics next to these: There are nearly 2 billion websites, and 550,000 created every day.

Shouldn’t sight-impaired people have the same access to these sites as sighted people? Of course they should. There is good news. After previously announcing guidance, the DOJ says new regulations are on the way under Title II of the Americans with Disabilities Act, which describes the obligations for state and local governments. My guests say there are many reasons to be excited about this.

My guests say there are many reasons to be excited about this.

Ken Nakata is Co-Founder and Principal at Converge Accessibility, whose solutions help make sure websites and other technologies are accessible to people with disabilities. Ken is former Senior Trial Attorney with the DOJ Disability Rights Section where he developed nationwide ADA policies for the internet. Joining Ken is Hiram Kuykendall, Chief Technology Officer at Microassist, an Austin-based learning and development consulting. Hiram is a technical leader with hands-on experience in instructional design and digital accessibility.

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.

(actual size)

Tom Hagy
Host
Emerging Litigation Podcast

P.S. Anytime I make a self-effacing remark about my ignorance concerning this or any subject, it’s strictly for entertainment value, a story I will cling to with every fiber of my being.

Ken NakataConverge Accessibility

Ken Nakata is Co-Founder and Principal at Converge Accessibility, whose solutions help make sure websites and other technologies are accessible to people with disabilities. Ken is former Senior Trial Attorney with the DOJ Disability Rights Section where he developed nationwide ADA policies for the internet.

Hiram Kuykendall Microassist

Hiram Kuykendall is Chief Technology Officer at Microassist, an Austin-based learning and development consulting. Hiram is a technical leader with hands-on experience in instructional design and digital accessibility. He has more than 25 years’ experience developing and managing custom applications on a variety of platforms and public and private sectors, supporting training and training related services.

September 2, 2022
Insurance Coverage for Digital Assets: Mitigating Losses in Cryptocurrency and Non‐Fungible Token Markets by Scott DeVries, Jessica Cohen-Nowak and Adriana Perez of Hunton Andrews Kurth

Companies and individuals are riding the ups and downs of cryptocurrency and NFTs—with losses and swings in the billions of dollars—but digital assets are not going away.

Abstract: The risk of loss in certain categories may be mitigated by insurance, whether provided by tailored policies and/or under policies designed specifically for digital asset owners. Those with exposure to the digital asset sector should be attuned to the emerging marketplace for such insurance products. While it is early days for NFT-specific coverage, the rise of cryptocurrency has created a substantial marketplace for crypto coverage. Insurers are becoming increasingly able to model and assess risk, so more products are coming to market. That said, digital asset holders need to be able to select coverage that best suits their needs. In this article, the authors discuss the history and status of coverage for digital assets to assist readers in exploring how they might use insurance to mitigate risk in this emerging and rocky sector of global finance.

“Over the course of a decade, the marketplace for cryptocurrency has increased from zero to an estimated $250 billion. However, only $6 billion in insurance coverage is currently available. It would be a gross understatement to say that there is a truly remarkable imbalance between market value and insurance capacity.”

Introduction

Crypto markets are experiencing the greatest crash in their history to date. The value of a Bitcoin (BTC) has plummeted 70% from its peak and Ethereum (ETH) has fallen 77%. Since last November, the value of cryptocurrency tokens has lost $2 billion in value. As noted financial publication Barron’s put it: “Crypto is having a ‘Lehman moment,’ a shattering of confidence triggered by plunging asset prices, liquidity freezing up, and billions of dollars wiped out in a few scary weeks.” Cryptocurrency companies are halting withdrawals and transfers, platforms are seizing up, and regulators are circling.

Nor has the devastation been limited to the coins themselves. Non-fungible token (NFT) sales have reduced by 90% since September 2021. The New York Times reported that Opensea.io (OpenSea) an NFT marketplace that receives 2.5% share of the proceeds for each NFT sale, has been plagued by “a surge of plagiarism, as sellers convert traditional artwork into NFTs and then list the images for sale without compensating the original creator.” For example, DeviantArt, an artist collective that scans OpenSea for copyright infringement of the work of its artists, found 290,000 instances of unauthorized NFTs copying its artists’ works. While infringing listings can be deleted in response to take down requests filed by the artist, buyers of counterfeit NFTs are rarely given a refund.

Against this backdrop, the issue of whether there may be claims associated with cryptocurrency and NFTs is far from a theoretical or esoteric thought exercise. It is very real. And when there are claims, businesses and investors doubtless will look to their insurers.

A business or home is devastated by a wildfire. Property insurance is available up to limits. A home is broken into, and art and jewelry are stolen. Crime/specie insurance is available.

But what about new age assets? What about cryptocurrency? What about NFTs? These obviously are not immune from theft by hackers. In 2021, hackers stole at least $3.2 billion in cryptocurrency with schemes short of outright theft accounting for another $7.8 billion. In the first four months of 2022, NFT hacks accounted for $52 million in losses, an almost eight-fold increase from 2021.

There typically is a significant time lag between the development of a product and the availability of product-specific insurance. This general proposition applies with equal force here. Over the course of a decade, the marketplace for cryptocurrency has increased from zero to an estimated $250 billion. However, only $6 billion in insurance coverage is currently available. It would be a gross understatement to say that there is a truly remarkable imbalance between market value and insurance capacity.

Although NFTs have been around for the better part of a decade, it was only during the last two years that the marketplace has grown to upwards of $41 billion. In addition to its newness, NFTs pose additional risks for insurers, including questions of ownership, authenticity and the valuation of a truly “unique” asset. Consequently, availability of insurance coverage for NFTs is even further behind.

Given the rapid rate at which the digital asset field is developing, and claims are emerging, and the insurance industry’s attempts to specifically address coverage for these losses and claims, anything written on this topic will, at least in part, be outdated by the time it is published. The objective of this article is to educate the reader on the history and status of the field, enabling them to ask the questions they need to ask, and to procure the coverage they need if available now or in coming months.

Download the article now!

Insurance Coverage for Digital Assets:

Mitigating Losses in Crypto and NFT Markets

Scott DeVriesHunton Andrews Kurth

Scott DeVries (sdevries@huntonak.com) is Special Counsel at Hunton Andrews Kurth and long-time insurance coverage attorney for policyholders in a range of complex disputes as well as mass torts, class action, product liability, and complex business litigation.

Jessica Cohen-NowakHunton Andrews Kurth

Jessica Cohen-Nowak (jcohen-nowak@huntonak.com) is an associate in Hunton Andrew Kurth LLP’s Intellectual Property group in the firm’s New York office. Jessica focuses her counseling and litigation practice on intellectual property matters in the fashion, fitness, entertainment, hospitality, and gaming industries as well as in technology and digital assets.

Adriana PerezHunton Andrews Kurth

Adriana Perez (pereza@huntonak.com) is an associate in the firm’s Miami office where she focuses on insurance, reinsurance, and other business litigation.

August 31, 2022
The Environmental, Social, and Governance Police Have Arrived: Is Your Insurance Ready? by Robert D. Chesler and Dennis J. Artese

The Authors

Robert CheslerAnderson Kill

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

Dennis ArteseAnderson Kill

Dennis J. Artese is a shareholder in Anderson Kill’s New York office and chairs the firm’s Climate Change and Disaster Recovery Group. Both are members of the Editorial Advisory Board of the Journal.

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 ESG Police Have Arrived:
Is Your Insurance Ready?

“ESG has become a major initiative for corporate America. In particular, the environmental prong of ESG calls for companies to institute sustainability goals and to invest in environmentally friendly companies. This emphasis has both economic and popular support. Environmental sustainability will make companies better able to compete and make their businesses less risky.”

Abstract: The environmental, social, and governance movement is a positive one, but like many well-intentioned efforts there is room for abuse and risk. As corporations endeavor to earn accolades and good will for “doing the right thing,” they must also be certain they truly are. In this article the authors discuss increased government scrutiny, the attendant risks of implementing and reporting on ESG initiatives, insurance coverage implications for directors and officers, the pollution and other exclusions, the potential civil fines and penalties, and what companies can expect in the era of ESG.

Download the article now!

Explore More from Anderson Kill!

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

Podcast 2 of 2 series: PFAS Insurance Coverage with Robert D. Chesler of Anderson Kill.

Sister article to podcast 1 of 2 series: Remediating, Insuring, and Litigating PFAS Claims. Authors: 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

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

Podcast: Violations of Biometric Privacy Laws: Policyholders’ Victories and the Implications Going Forward with John Leonard and Cort Malone

Journal on Emerging Issues, Editorial Board of Advisors: Dennis Artese, Robert D. Chesler

Asymmetrical Combat: Bad Faith Liability in Insurance Recovery Cases. By William Passannante

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

Litigation After Biometric Privacy Law Violations: Policyholder Victories and Their Implications. Authors: Cort T. Malone, Abigail Damsky

Protecting Policyholders as AI Is Developed for Insurance Claims Handling – Ensuring “Decency and Humanity” in the Digital Age. Authors: Marshall Gilinsky, Madison Marlow

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

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

The Promise and Peril of Quantum Computing and Its Implications for Cyber Insurance. By Cameron R. Argetsinger

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

Property Insurance Coverage for Emerging Risk: Underground Climate Change. Authors: Dennis J. Artese, Ethan W. Middlebrooks, Thomas Dupont

Autonomous Vehicles: The New Technology Driving the Litigation Conversation. Authors: Cort Malone, John Leonard, and Joshua Zelen

August 29, 2022
Telepsychiatry: Mitigating the Risks
REGISTER

Registration Includes
- Nearly 90 minutes of insights from experienced professionals.
- CLE credit: 1+ (subject to bar rules).
- For CLE questions: CLE@LitigationConference.com
- The complete Power Point presentation.
- Continued access to the complete recording for later use.
- Answers to your questions via email to the presenters or write to HB and we will be sure to contact the speakers.
Understand the risks associated with telepsychiatry and how to manage them.

Telemedicine has emerged as an important solution for healthcare in general and psychiatric medicine specifically during the current global pandemic. Remote access for sub-practices including addiction counseling have been commonly used. Our panel of psychiatric professionals who have served as expert witnesses and attorneys who counsel and represent physicians have prepared a 90-minute session to share insights with attorneys, physicians, healthcare providers, risk professionals, and more.

Agenda
- Examining procedures and best practices that exist for ensuring confidentiality in a telemedicine practice
- How do you draft a telepsychiatric consent form?
- What is the emerging standard of care for telemedicine?
- Will the standard of care for telemedicine become a national standard? (Should it?)
- Review the case law addressing telemedicine or telepsychiatry
- How do the HIPAA regulations and HITECH privacy laws impact telemedicine?
- How have the HIPAA regulations and HITECH privacy laws been relaxed during the pandemic?
- Will the relaxed HIPAA and HITECH regulations impacting telemedicine continue past the pandemic?
- Which technical platforms are preferred? Which ones to avoid?
Panelists
- Mark Levy, M.D., Medical Director at fpamed
- David Kan, M.D., UCSF Psychiatry Department and the California Society for Substance Abuse Medicine
- Ayesha Ashai, M.D., associated with fpamed
- Stephen M. Fatum, J.D., Partner, Barnes & Thornburg LLP
- Angela W. Russell, J.D., Partner, Wilson Elser Moskowitz Edelman & Dicker LLP
Meet our physician and attorney panelists.

Mark Levy MD
Medical Director
fpamed

Dr. Levy is a graduate of Columbia College (A.B. 1967) and the Columbia University College of Physicians and Surgeons (M.D. 1971) in New York. He is a Physician and Surgeon licensed since 1972 by the State of California and the State of Hawaii since 2004.

He is certified in Adult Psychiatry (1981) and Forensic Psychiatry (1999, 2009) by the American Board of Psychiatry and Neurology. In the past he has served as a Qualified Medical Examiner (“QME”) for the State of California (active status 1993-96, currently “inactive”). He is also a Psychoanalyst and a graduate of the San Francisco Psychoanalytic Institute.

He is Assistant Clinical Professor, Psychiatry, School of Medicine, University of California, San Francisco where has been on the faculty since 1977 and , among other teaching activities, he lectures in the Law and Psychiatry Fellowship. He is also on the Faculty of the San Francisco Psychoanalytic Institute and is the Founder and former Chairman and President of the San Francisco Foundation for Psychoanalysis, a community service outreach organization.

In January 2006 Dr. Levy established Forensic Psychiatric Associates Medical Corporation (fpamed.com) of which he is the medical director. In addition to consulting on a broad range of civil (and criminal) matters in which there are behavioral questions to be addressed by a forensic psychiatric expert, fpamed as a group specializes in assessing psychological injury claims of populations of litigants in mass tort or multi-plaintiff litigation.

Mark Levy founded fpamed in 2006.

More about Dr. Levy here …

David Kan MD
UCSF Psychiatry Dept. &
Calif. Society for Substance Abuse Medicine

Dr. Kan graduated from Northwestern University Medical School. He finished his General Psychiatry Residency and Forensic Psychiatry Fellowship at the University of California, San Francisco (UCSF). He is Board-certified by the American Board of Psychiatry and Neurology in General and Forensic Psychiatry and he is Board-Certified by the American Board of Addiction Medicine in Addiction Medicine. He is a member of the faculty at the UCSF Department of Psychiatry.

Dr. Kan enjoys teaching, in addition to his direct work with patients. He has won multiple awards for teaching and clinical care delivery. Dr. Kan teaches and supervises psychiatrists-in-training in his role as faculty member at UCSF. Throughout the year, he speaks at professional conferences on topics including treatment of addictive disorder.

Dr. Kan offers forensic consulting services to courts and attorneys in civil, criminal, and administrative matters. He has testified in multiple states, counties and federal court as an expert witness. He is a member of the American Academy of Psychiatry and the Law.

Dr. Kan is an active member of the California Society of Addiction Medicine (CSAM). CSAM is a physician organization dedicated to improving the treatment of substance use disorders. Dr. Kan has planned conferences and spoken to many physician and non-physician groups. Dr. Kan is the current President of CSAM. Dr. Kan is a Distinguished Fellow of the American Society of Addiction Medicine (D.F.A.S.A.M.). Dr. Kan has testified numerous times before the California Assembly and Senate on addiction treatment. Dr. Kan has testified before Congress advocating for expanding access to addiction treatment.

More about Dr. Kan here …

Ayesha Ashai MD
Associated with
fpamed

Dr. Ayesha Ashai received her BA in Psychology and Spanish from University of Michigan in Ann Arbor. She went on to attend medical school at Wright State University Boonshoft School of Medicine in Dayton, Ohio. She completed her adult psychiatry residency at University of Maryland and Sheppard Enoch Pratt Hospital in Baltimore, Maryland, where she later served as the executive chief resident. After, she completed her forensic psychiatry fellowship under the leadership of Dr. Charles Scott at University of California, Davis in Sacramento, California.

She is certified by the American Board of Psychiatry and Neurology in Psychiatry with added qualifications in Forensic Psychiatry. She has years of experience in the diagnosis and treatment of a broad range of psychiatric disorders in various settings including civil and forensic hospitals, emergency rooms, outpatient clinics, and jails. She has specialized experience in working with patients who are Muslim, those with an Indian or Pakistani background, as well as Hispanic patients. She is licensed to practice medicine in California, Ohio, Pennsylvania, Illinois and Texas.

Currently, Dr. Ashai works as a telepsychiatrist in two outpatient mental health clinics in Ohio and Illinois. She also provides treatment for offenders incarcerated at the Winnebago County Jail and offenders with a serious mental illness that are released from incarceration as part of a therapeutic intervention program. In 2013, she was awarded the Dr. George U. Balis Award for Excellence in Medical Student Education for her work with medical students. She will soon be joining University of Illinois- Chicago as a volunteer clinical faculty member.

Dr. Ashai has been an independent contractor with fpamed since 2020.

More about Ayesha Ashai M.D. here …

Stephen M. Fatum
Partner
Barnes & Thornburg LLP

Stephen Fatum advises on healthcare industry-related matters for physicians, physician organizations and nonprofit entities. Stephen’s decade of in-house experience for large organizations helps him counsel clients about practical strategies to achieve their goals. His style of negotiation relies upon listening, understanding, respect, identifying common ground, appealing to collective self-interests, collaboration and creativity.

Stephen has counseled senior management and members of the boards of directors of medical groups, associations, hospitals, and health systems regarding governance structures, bylaws, operating agreements, mergers and acquisitions, reimbursement, compensation plans, joint ventures and federal and state regulatory compliance. Notably, Stephen is the former general counsel of Advocate Medical Group, S.C., which at the time was a multispecialty medical group of 270 physicians practicing in the suburbs of Chicago. Before holding this position, he served as general counsel of the Lutheran General Medical Group, S.C. He also acted as assistant general counsel of Lutheran General HealthSystem when it combined with another health system to form Advocate Health Care.

Having worked in-house as general counsel for healthcare organizations and volunteered for five years as the board chair of a large mental health agency, Stephen has worked closely with board chairs, CEOs, COOs, CFOs, CSOs, CMOs, and numerous other chief executives. He understands the business perspective and multidimensional challenges and financial pressures facing physicians and executives who lead health systems, medical groups, not for profit organizations and physician organizations.

Read more about Stephen Fatum here …

On Demand Registration

Angela W. Russell
Partner
Wilson Elser Moskowitz Edelman & Dicker LLP

Angela Russell is the regional managing partner of the Baltimore office and chair of the firm’s Diversity Committee. She has significant trial experience and has tried cases in the District of Columbia and across the state of Maryland. Her practice encompasses the defense of professional liability matters, including medical malpractice and legal malpractice actions in addition to claims against agents, brokers and other professionals. Angela regularly handles and supervises general casualty matters for insurers and self-insured entities on premises liability claims, security matters, hospitality cases and recreational defense claims. Angela is also frequently called on to handle toxic tort matters.

Angela possesses an innate ability to connect with her clients, identify their needs and communicate effectively throughout the litigation cycle. Her rapport in the courtroom is equally impressive. An aggressive litigator, Angela is adept at tapping the persistence, preparation and training she gained early on in a variety of public speaking engagements and tackling two marathons. Angela worked at prominent defense firms in Minnesota and Washington, DC, prior to joining Wilson Elser.

Professional Distinctions
Angela is the former co-chairperson of the Civil Jury Instructions Committee for the Bar Association for the District of Columbia as well as a former adjunct professor at William Mitchell College of Law in St. Paul, MN.

Read more about Angela Russell here …
August 18, 2022
Litigation’s Role in Gun Safety Advocacy with Adam Skaggs

We’re closing in on 400 million guns in America, weapons that have been used to kill 1.5 million Americans between 1968 and 2017. Can litigation be an effective tool in curbing this loss of life?

In 2020 alone there were more than 45,000 gun deaths. The beyond tragic and senseless mass shootings at schools has become all too routine. Most Americans want stricter gun laws which they believe will reduce the senseless killing in our country, which leads the world in both the number of privately owned firearms and gun-related deaths.

The Supreme Court, of course, didn’t take public opinion into account when it struck down a more than century old New York City ban on concealed firearms. Politicians do, however, pay close attention to polls. At the federal level, President Joe Biden signed a bipartisan law designed to make Americans safer in our gun-toting nation. Hailed as a “great start” and a rare but welcome exercise in reaching across the aisle, the law will result in safer citizens, but didn’t include much of what gun advocates say is really needed to effect meaningful change. In California, Governor Gavin Newsom signed a new law that gives citizens incentives to pursue gun manufacturers and dealers who sell illegal firearms. In New York, Democratic leaders, undaunted by the Supreme Court, have pushed through new gun restrictions at vulnerable locations like schools, malls, and stadiums.

But what can lawyers and lawsuits do about it? Plenty. What reasonable measurers can be put into place that will not infringe on Second Amendment rights? Several. Are we seeing litigation over these issues? You bet.

For more specifics, listen to my interview with Adam Skaggs, chief counsel and policy director at leading gun safety advocacy group Giffords Law Center, co-founded by former Congresswoman Gabby Giffords. Prior to Giffords Law Center Adam was senior counsel at Everytown for Gun Safety and at the Brennan Center for Justice, where he worked on election law issues. Adam’s commentary has been published in Slate, Politico, the Atlantic, and the New York Times, among other publications, and he has been widely quoted by media ranging from the Wall Street Journal and Fox News to the New York Times and MSNBC. Adam graduated summa cum laude from Brooklyn Law School, received an MS in Urban Affairs from Hunter College of the City University of New York, and holds a BA, awarded with distinction, from Swarthmore College.

If you would like to learn more about Giffords Law Center and how you can get engaged, please reach out to to them. You may also email Adam directly.

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.

Gun Safety: The Role of Litigation in Advocacy

Adam SkaggsChief Counsel & Policy Director

Adam Skaggs serves as Giffords Law Center’s chief counsel and policy director. Previously, he was senior counsel at Everytown for Gun Safety and at the Brennan Center for Justice, where he worked on election law issues. Adam was also a litigation associate at Paul, Weiss, Rifkind, Wharton & Garrison and a law clerk at the Eleventh Circuit and the US District Court for the Eastern District of New York.

Adam’s commentary has been published in Slate, Politico, the Atlantic, and the New York Times, among other publications, and he has been widely quoted by media ranging from the Wall Street Journal and Fox News to the New York Times and MSNBC.

Adam graduated summa cum laude from Brooklyn Law School, received an MS in Urban Affairs from Hunter College of the City University of New York, and holds a BA, awarded with distinction, from Swarthmore College.

August 3, 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