Insurance

Expert Analysis

• A Likely Tipping Point For Nonlawyer Ownership Of Law Firms

  

  The Arizona Supreme Court's recent decision to eliminate prohibitions on nonlawyer ownership of law firms may show that the organized bar's long-standing rhetoric that such rules are essential to protecting the legal profession's core values is overblown, say Anthony Sebok at Cardozo School of Law and Bradley Wendel at Cornell Law School.

• The Challenges Facing Trump's Drug Pricing Order

  

  President Donald Trump's executive order on international reference pricing for Medicare drugs is likely to either languish in Congress or die in court, but more modest drug pricing reform measures may be viable in the coming year, say attorneys at Ropes & Gray.

• Amazon Cases Show E-Tailer Product Liability Varies By State

  

  The law around online marketplaces' exposure to litigation over products sold by third-party vendors is in flux — but a review of recent cases involving Amazon shows that a company's risk in these situations ultimately depends on state statutes, says Derek Rajavuori at Butler Snow.

• A Road Map For Drafting Persuasive Discovery Motions

  

  Best practices that can help litigators write convincing discovery motions include thinking about the audience, addressing a few key questions, and leaving out boilerplate from supporting briefs, says Tom Connally at Hogan Lovells.

• How Congress Can Depoliticize The Supreme Court

  

  Congress has multiple means to take the politics out of federal judicial nominations and restore the independence of the U.S. Supreme Court — three of which can be implemented without a constitutional amendment, says Franklin Amanat at DiCello Levitt.

• When Do Insureds' Legal Fees Constitute Defense Expenses?

  

  An Oklahoma federal court's surprising decision in Turner v. XL Specialty Insurance — now on appeal before the Tenth Circuit — found that a named defendant's legal costs did not qualify as defense expenses, highlighting ambiguities in how "defense" is defined for insurance purposes, say David Kroeger and Catherine Doyle at Jenner & Block.

• 5 Ways Retailers Can Mitigate Product Liability Litigation Risk

  

  While courts sometimes hold retailers liable for injuries caused by products they sold but did not manufacture — as a California appeals court did recently in Bolger v. Amazon — retailers can implement a number of strategies to reduce product liability litigation risk, say Alexandra Cunningham and Elizabeth Reese at Hunton.

• Opinion

  1st Circ. ERISA Benefit Ruling Misapplies Review Standard

  

  The First Circuit’s recent decision in Doe v. Harvard Pilgrim Health Care — affirming denial of health insurance coverage based on the de novo review standard under the Employee Retirement Income Security Act — is dubious because it deviates markedly from civil procedure requirements and conflicts with U.S. Supreme Court jurisprudence, says Mark DeBofsky at DeBofsky Sherman.

• Opinion

  The Case For A Nonpolitical Federal Judiciary

  

  For the last 20 years, at the insistence of both parties, U.S. Supreme Court nominations have been fierce ideological battles — which is bad for the country and bad for the public's perception of the legitimacy of the court, say Judge Eric Moyé, Judge Craig Smith and Winston & Strawn partner Tom Melsheimer.

• Trump's Drug Pricing Order Is More Bark Than Bite

  

  President Donald Trump's new executive order addressing pricing for drugs covered by Medicare Parts B and D glosses over enormous difficulties in restructuring Medicare operations and is unlikely to lead to any imminent changes, say attorneys at Debevoise.

• Anthem-Cigna Merger Ruling Highlights Post-Deal Issues

  

  The Delaware Chancery Court's recent decision to halt the Anthem-Cigna merger on antitrust grounds is most notable for not holding Cigna liable for breaching its obligation to support the transaction, and underscores the vulnerability of merger-of-equals transactions to post-signing issues, say attorneys at Fried Frank.

• The Keys To A Better Privilege Logging Paradigm

  

  Current privilege logging practices to identify what information is being withheld from discovery often lead to costly disputes, so practitioners should adopt a system based on trust and good faith, similar to the presumptions embedded in the business judgment rule for corporate directors and officers, say Kevin Brady at Volkswagen and Charles Ragan and Ted Hiser at Redgrave.

• Class Arbitration May Meet Its Demise At High Court This Term

  

  While the Second Circuit’s 2019 opinion in Jock v. Sterling Jewelers and the Ninth Circuit’s recent decision in Shivkov v. Artex exemplify how two interrelated inquiries have rescued class arbitration, the U.S. Supreme Court will likely address the issues this term and extinguish the practice, say attorneys at McGuireWoods.

• White House Due Process Memo Could Reform Enforcement

  

  A little-noticed memo recently issued by the Trump administration in response to the pandemic, directing federal agencies to provide greater due process to individuals and companies under regulatory investigation, represents a long-overdue sea change in the way justice is carried out in enforcement proceedings, say Joan Meyer and Norman Bloch at Thompson Hine.

• Law Firm Hiring Considerations In A COVID-19 Economy

  

  Financially robust law firms are entering the recruiting market aggressively knowing that dislocations like the COVID-19 crisis present rare competitive opportunities, and firms that remain on the sidelines when it comes to strategic hiring will be especially vulnerable to having their best talent poached, says Brian Burlant at Major Lindsey.