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Article 26/05/2023
On March 24, 2023, Florida passed a sweeping tort reform bill into law, making major changes to civil litigation in the state. In anticipation of the Governor signing the bill into law, the number of new cases initiated throughout the state in March 2023 was 280,122. Of that amount, 71,000 came from Miami-Dade County (Miami) and 53,000 from Hillsborough County (Tampa). These numbers are staggering.
Article 26/05/2023
In the wake of COVID-19, litigators all across the United States are noticing an old, yet infrequently utilized, evidentiary tool emerge to address unexpected trial witness unavailability: the de bene esse deposition. A Latin legal term literally translated to “of well being,” the phrase refers to various acts which are conditional, provisional or anticipatory. De bene esse proceedings have been used in traditional English law (and in the London market) for hundreds of years; as far back as in the 1744 publication Equity Cases Abridged, the phrase was used to describe the deposition of a witness before trial in the Court of Chancery. In the context of American law, a proceeding de bene esse is one "which [is] taken ex parte or provisionally and [is] allowed to stand as well done for the present." See Black's Law Dictionary, 5th edition.
Article 21/02/2023
On February 14, 2023, Florida’s Governor, the President of the Florida Senate and the Speaker of the Florida House of Representatives jointly appeared at a press conference to express their dissatisfaction with the state of certain aspects of Florida’s civil justice system and to announce a pre-filed bill for the upcoming legislative session, HB 837. The bill’s proposed changes are likely to benefit small businesses, large corporations and insurers alike, and would represent a substantial shift in the landscape for insurance coverage, third-party bad faith, and insurance defense law in Florida.
Article 02/02/2023
Covenants restricting competitive activity often appear in employment contracts or in agreements related to the sale of a business. At their heart, these covenants are intended to protect the business goodwill of an enterprise. Too frequently, however, covenants are overly broad and restrict persons who do not truly pose a risk of harm to the goodwill of the business. It is not surprising then that a growing number of jurisdictions are limiting or outright banning restrictive covenants. Indeed, there has even been a call for federal attention to curtail the use of restrictive covenants as a way to promote competition in the US economy.
Article 02/02/2023
On January 27, 2023, the SEC’s new Executive Compensation Clawback Rules became effective. The rules require listed companies to: (1) develop and implement a policy to recover erroneously awarded incentive-based compensation received by current or former executive officers; and (2) satisfy related disclosure obligations. With new rules, come new risks. At a minimum, companies will have to closely examine the new rules and establish protocol to ensure adequate compliance and disclosure.
Article 02/02/2023
The majority of publicly traded companies are incorporated in Delaware but have their principal place of business in another state. This can raise thorny issues of what state’s laws should apply to an insurance coverage dispute under the company’s directors and officers liability policy. In Stillwater Mining Company v. National Union Fire Insurance Company of Pittsburgh, PA et al., C.A. No. N20C-04-190 (Del. Jan. 12, 2023), the Delaware Supreme Court weighed in on choice of law principles under Delaware law as well as coverage under D&O policies for shareholder appraisal actions.
Article 06/01/2023
A new year inevitably brings changes to existing laws and “time-limited demands” are no exception. Parties and jurists use different names to refer to such demands, including “time limit demands,” “policy limit demands,” or “time-limited settlement offers.” They may also take the form of statutory “998 Offers to Compromise” pursuant to California Code of Civil Procedure § 998, which often seek a specific amount equal to the limits of an insurance policy.
Article 16/12/2022
During the current Florida Legislative session, residential and commercial property insurance reform has been a focal point of the Legislature. On December 13, 2022, the Florida Senate passed Senate Bill 2A (“SB 2A”), which was passed without amendment by the Florida House and presented to the Governor on December 14, and signed into law on December 16th.
Article 15/11/2022
In a recent decision, the United States District Court for the Southern District of New York, applying Colorado substantive law, ruled that a War Exclusion in a commercial general liability insurance policy (“CGL”) issued by Hartford Fire Insurance Company (“Hartford”) to Western Union Company and Western Union Financial Services (together, “Western Union”) barred coverage for an underlying lawsuit claiming that Western Union and other financial institutions provided financial support to the Donetsk People’s Republic (the “DPR”), a Russian-backed separatist group in eastern Ukraine.
Article 20/10/2022
The Oklahoma Supreme Court is the most recent state high court to hold that property insurance policies do not provide coverage for COVID-19 related business interruption losses. In Cherokee Nation v. Lexington Insurance Company, 2022 OK 71 (Sept. 13, 2022), the court reversed a trial court’s ruling that a Tribal Property Insurance Program (TPIP) policy provided coverage for the Cherokee Nation’s alleged business interruption losses resulting from its temporary closure of its properties in 2020 as a result of the COVID-19 Pandemic.
