It is far too easy for an at-will employee who is terminated for poor performance to file a suit and claim discrimination without a shred of credible evidence of discrimination, says Amy L. Bess, a leader in Sonnenschein Nath & Rosenthal LLP's litigation and labor & employment practice groups.
The U.S. Department of Justice has undergone significant changes since 9/11, but several areas still need significant attention — most notably, in bringing uniformity to investigations, pleas and deferred prosecution or nonprosecution agreements, says Scott L. Fredericksen, chair of Foley & Lardner LLP's securities litigation & white collar practice.
Policyholders and insurance companies could benefit from a higher level of uniform regulation of insurance, as state regulation often results in a 50-state patchwork of requirements, policy language and enforcement, says Doug Cameron, leader of Reed Smith LLP 's insurance recovery group.
There's an unacceptable rate of reversal on claim construction rulings, but interlocutory appeals aren't the way to address this. A better answer is legislation that would require the Federal Circuit to give deference to fact findings of a trial court that underlie a claim construction ruling, says Brian C. Riopelle, chair of McGuireWoods LLP’s intellectual property litigation/patents department.
Some form of legislative or administrative solution has long seemed the right approach to reducing the enormous burden and cost of asbestos litigation, but politics have for just as long gotten in the way, says Daniel L. Ring, action group leader of Mayer Brown LLP's product liability and mass torts practice.
When creditor committees become overly confrontational, costs are unnecessarily increased and creditors’ returns unduly diminished. I think the solution would come in the form of increased oversight over committee practice, and through a revived spirit of professional “self-regulation," says Douglas M. Foley, chair of McGuireWoods LLP's restructuring and insolvency department.
When one government entity decides to pursue a matter, then that entity alone should be required to go forward with that matter, as oftentimes there are multiple parties going after the same company for the same issue but with a different motive, says Gordon R. Alphonso, chairman of McGuireWoods LLP's land use and environmental department.
In terms of future mass torts, aside from an increase in labor and employment claims stemming from reductions in work force, there now seems to be a push to reinvigorate asbestos litigation through junk science by expanding the definition of what constitutes an asbestos-like disease, says David Craig Landin, chair of Hunton & Williams LLP's product liability practice.
The environmental permitting process needs streamlining — it's replete with redundancies and overlapping jurisdictions, and costly without commensurate environmental benefits, says Kerri L. Barsh, co-chair of Greenberg Traurig’s global environmental and land development practice.
In the area of environmental permitting, we need to level the playing field. With no significant detriment to appealing a permit through every possible stage provided by law, it's very difficult to have meaningful settlement discussions that might allow a project to go forward with agreeable modifications, says Patricia T. Barmeyer, head of King & Spalding LLP's environmental practice group.
Environmental law has become so extensive and complex that regulations, like enabling legislation, may be written without necessary precision in order to defer tough decisions. We need greater clarity in how environmental regulations are written, interpreted and enforced, says F. William Brownell, chair of Hunton & Williams LLP's environmental practice group.
Globalization is now a reality and the standards of business conduct for firms operating worldwide need to have some consistency and predictability. The Justice Department, the Federal Trade Commission and the European Commission need to reconcile their differences over the rules governing single firm conduct, says James H. Walsh, chair of McGuireWoods LLP's antitrust and trade regulation department.
Courts need to find a judicial approach that gives teeth to the already-recognized grounds for vacatur — particularly where arbitrations claims are now large enough to threaten the continued operation of some securities businesses, says Brad Kaufman, chair of Greenberg Traurig LLP's national securities litigation group.
Insurance carriers are forced to do business against a backdrop of complex, evolving and sometimes idiosyncratic state regulatory regimes, not to mention federal — of which the recent rule regulating equity indexed annuities as securities is just the latest example. It would be nice to get to a place with uniform standards, says Andrea J. Robinson, vice-chair of WilmerHale's securities department.
Still on the rise, consumer fraud cases are often based on 40-year-old state statutes that contain statements of such generality that lawyers can apply them to virtually any set of facts against a business entity, says Michael Pope, head of McDermott Will & Emery LLP's international product liability practice group.
The future may hold new frontiers in the area of drug litigation. We are already seeing surges in cases tied to drugs that treat problems of our increasingly overweight (and diabetic) population, says Rich Goetz, head of O’Melveny & Myers LLP’s product liability practice.
The standards applicable to merger cases in federal courts are in need of reform, and the FTC ought not to be able to shut down a merger without showing a likelihood of success at the administrative trial, says Richard Parker, head of the antitrust and competition practice group at O'Melveny & Myers LLP.
Litigation against financial institutions and investment advisers will likely increase as investors look to recoup their losses in the down economy, raising many questions about how and whether current insurance policies can cover such claims, according to Douglas Cameron, head of Reed Smith LLP’s Insurance Recovery Group.
The tight credit market and the diversity of the assets being poured into projects are increasing the complexity of financing energy deals – and upping the demand for experienced lawyers in the field, according to Joseph A. Tato, chair of Dewey & LeBoeuf LLP’s global project and infrastructure finance group.
Although the Sierra Club's legal department focuses on a variety of environmental issues, from mountaintop removal mining to logging of old-growth forests, it has saved the largest portion of its resources to combat global warming.
Parties looking to arbitrate disputes involving Latin America in South Florida will be well-served by a convenient and welcoming environment, a thriving community of world-class practitioners and a favorable legal framework that is supportive of international dispute resolution, says Jose Ferrer of Bilzin Sumberg Baena Price & Axelrod LLP.
What makes the Fifth Circuit's opinion in Johnson v. Arkema Inc. noteworthy is the takedown of plaintiff's attempt to use differential diagnosis to "rule in" a substance as a cause of pulmonary fibrosis when no scientific study has ever shown the substance to produce the malady in humans, says David Oliver of Vorys Sater Seymour and Pease LLP.
Georgia's recently passed "merchant acquirer limited purpose bank" charter appears to offer a new avenue to participate in payment card networks without enduring the lengthy and uncertain process of attempting to charter a de novo depository institution and obtain FDIC approval for federal deposit insurance coverage. However, the framework of the new MALP Bank charter raises numerous issues and questions, say attorneys with Paul Hastings LLP.
The Eleventh Circuit's wrestling with the issues in Federal Trade Commission v. Watson Pharmaceuticals illustrates the fundamental difficulties inherent in assessing the competitive effects of reverse-payment settlements, says Ankur Kapoor of Constantine Cannon LLP.
In Cook v. MillerCoors LLC, a Florida district court has found that the well-known dangers of alcohol consumption preclude a duty to warn. By not shifting responsibility from the person who over-consumes a caffeinated alcoholic beverage and then drives impaired, the court has avoided sending the wrong policy message, says Sean Wajert of Shook Hardy & Bacon LLP.
In American Empire v. Hathaway, the Georgia Supreme Court has provided clear direction on an issue that had resulted in prior inconsistent decisions by lower Georgia courts. The opinion, which broadens coverage under a CGL policy, was based solely on the definitions of "accident" and "occurrence," says John Hinton of Baker Donelson Bearman Caldwell & Berkowitz PC.
Hospital consolidation is a hot topic these days, with the government urging providers to come up with ways to deliver services more effectively and challenging them to avoid combinations that have the potential to raise prices or diminish service. Given three recent Federal Trade Commission actions, it appears that antitrust scrutiny of these combinations is likely to increase, says Mary Marks of Greenberg Traurig LLP.
To handle the Georgia Supreme Court’s expansion of the ruling in State Farm Mutual Auto. Ins. Co. v. Mabry, insurers should consider amending or refilling insurance policy forms to include exclusions from coverage for diminished value claims. Alternatively, the property industry could petition the Georgia Insurance Department for a regulation providing standards for the determination of the amount of diminished value loss claims, say attorneys with Locke Lord LLP.
The nightmare began about three weeks into the five-week term of our client's sweepstakes. The client’s in-house lawyer reviewed the ads for the promotion and discovered that the prize had been increased and the approximate retail value was now above the threshold for registration. There are ways to prevent this, says Dale Joerling of Thompson Coburn LLP.
A decision of the United States District Court for the Eastern District of North Carolina has demonstrated more than that there are successful defenses to claims for violation of the warranty of merchantability — even in a case where a defendant’s logo is found in an unusual place, such as on a piece of plastic found in the plaintiff's lung, says Richard Goldfarb of Stoel Rives LLP.