Fighting Back Against the Insurance Industry's "Restitution"/"No Covered Loss" Defenses
By Joshua Gold, Esq. of Anderson Kill P.C.
Over the last several years, D&O and E&O insurance companies in particular have contested scores of insurance claims by arguing that the claims do not constitute "loss" as defined in the insurance policy. The insurance company arguments vary a bit but usually involve one or more assertions: 1) the amounts sought by the underlying plaintiffs supposedly seek the return of ill-gotten gains or "restitution," 2) the amounts sought supposedly seek a disgorgement or refund and 3) the amounts sought by the underlying plaintiffs supposedly seek breach-of-contract damages that will result in a windfall to the policyholder if it gets coverage for the contract performance it breached.
Drama in your company creates havoc and expensive employee problems. Workplace drama
- destroys productivity
- harms teamwork
- distracts coworkers
- damages work atmosphere
By Carl J. Pericone, Esq. of Wilson Elser Moskowitz Edelman & Dicker LLP
In its landmark 2011 decision in American Electric Power Co., Inc. v. Connecticut, et al., 131 S.Ct. 2527 (2011), the U.S. Supreme Court held that the Clean Air Act (CAA) and the actions by the U.S. Environmental Protection Agency (EPA) it authorized displace - that is, preempt - "any federal common law right to seek abatement of carbon-dioxide emissions from fossil-fuel fired plants." Significantly, however, the American Electric Court expressly declined to extend its preemption holding to state common law nuisance suits. To date, only four reported decisions have addressed the state law preemption issue. Three have rejected preemption and one has embraced it.
Protected Speech Does Not Include Extortion, California Appellate Court Rules
By Mitchell F. Boomer, Esq. of Jackson Lewis P. C.
An employee's e-mail threatening to report his employer to the U.S. Attorney and file an action under the federal False Claims Act unless the employer agreed to settle his defamation claim constituted extortion, as a matter of law, the California Court of Appeal has ruled. Stenehjem v. Sareen, No. H038342 (Cal. Ct. App. Jun. 13, 2014). Thus, the e-mail was not protected speech under California's anti-SLAPP statute, Cal. Code Civ. Proc. � 425.16. The Court reversed the dismissal of the employer's complaint for extortion. While the unusual allegations in this case do not arise often, the decision is a positive development for California employers.
Employer Liability for Conduct of Non-Employees
By Seth L. Laver, Esq., Michael P. Luongo, Esq. and Michael S. Saltzman, Esq. of Goldberg Segalla LLP
Part of running a successful professional practice involves fostering a work environment that is free from harassment. Federal law protects employees from harassment in the workplace, which becomes unlawful where the conduct is so pervasive as to create a work environment that a reasonable person would consider intimidating, hostile, or abusive. Many employers train employees about the consequences of harassment and have policies to handle employees who violate the rules. However, managing the conduct of employees is not necessarily sufficient to prevent liability.
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