Expert Analysis

• Key Risk Assessment Gaps To Note From NY Cyber Guidance

  

  Covered entities should take a fresh look at the compliance gaps flagged in recent New York State Department of Financial Services guidance on "deficient cybersecurity programs," particularly around scope, asset inventories and documentation, say attorneys at Mayer Brown.

• NFL Coverage Ruling Sets Limits on Long-Tail Claim Defenses

  

  A New York appellate court's recent decision — holding that National Football League players who sustained neurological injuries had suffered multiple occurrences for insurance coverage purposes — may also be used to limit insurers' efforts to declaim coverage for other long-tail injury cases, including sexual abuse claims, say attorneys at SDV Fenchurch.

• 2nd Circ. EFAA Ruling Shifts Employer Litigation Strategy

  

  In Diaz-Roa v. Hermes Law, the Second Circuit recently held that, under the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, employers can't carve out nonharassment claims and send them to arbitration, which has implications for discovery, litigation costs and resolution strategy in EFAA-covered disputes, say attorneys at Krevolin Horst.

• PFAS Ruling Extinguishes A Policyholder Path To Coverage

  

  Following an Ohio federal court's recent ruling in Fire-Dex v. Admiral Insurance, policyholders whose PFAS exposure is concentrated in workplace products will see bids for coverage fail under the occupational-disease exclusion, giving insurers a defense well suited for the category of claims that has been most resistant to pollution exclusions, say attorneys at Benesch.

• When Insurer Insolvency Won't Trigger Excess Coverage

  

  With its recent decision in A.R. Wilfley v. National Union Fire Insurance, the Colorado Supreme Court joins a growing national consensus enforcing clear and unambiguous anti-drop-down policy language in umbrella and excess policies, says Michael Kotula at Rivkin Radler.

• Series

  Being In The Peace Corps Made Me A Better Lawyer

  

  When I served in the Peace Corps, the people of the West African village where I was stationed helped me acclimate to my new surroundings and enabled me to develop problem-solving, teamwork and empathy skills that have bolstered my legal practice far beyond the ability to offer technical advice, says Brian Bewley at McGuireWoods.

• 5 Ways Trial Attys Can Build Mental Health Counseling Skills

  

  Studies demonstrate that many attorneys are not equipped to respond adequately to trauma exposure, but trial lawyers can build several key skills drawn from mental health counseling into their interactions with clients and colleagues, from cognitive reappraisal to boundary setting, says Alexandra Echsner-Rasmussen at Aylstock Witkin.

• How Rule 45 Update May Change Remote Trial Subpoenas

  

  The Committee on Rules of Practice and Procedure's recently recommended update to Rule 45 of the Federal Rules of Civil Procedure would expand trial courts’ subpoena power for remote testimony, but it would not alter the standard for authorizing remote testimony and may prompt unresolved questions for foreign witnesses, say attorneys at WilmerHale.

• What Colo. High Court Will Weigh In Insurer Disclosure Case

  

  In Bohanan v. Esurance, the Colorado Supreme Court will decide whether an insurance policy must be produced to a claimant notwithstanding the insurer's coverage position, and the court's interpretation of what "may be relevant to the claim," in the statute, will be paramount, say attorneys at Burg Simpson.

• Reel Justice: 'The Odyssey' And Making Tough Trial Choices

  

  In “The Odyssey,” Odysseus succeeds because he abandons the search for a perfect answer, highlighting for litigators why successful advocacy is about making thoughtful choices that circumvent cognitive biases and mental shortcuts, says Veronica Finkelstein at Widener-Delaware Law.

• When Indemnity, Purchase Price Adjustment Claims Overlap

  

  The Delaware Court of Chancery's recent decision in WSP v. Versar highlights that courts are willing to enable a buyer to select either indemnity or purchase price adjustment mechanisms, even if the parties did not envision that when negotiating the purchase agreement, says Claire Frost at Arnold & Porter.

• Rebuttal

  North Carolina's Funding Ban Is An Outlier, Not A Model

  

  A recent Law360 guest article argues that North Carolina's litigation funding ban should be adopted by other states, but that analysis overstates what North Carolina did and misjudges how the law will travel, says Dai Wai Chin Feman at the International Legal Finance Association.

• Planning For D&O Exclusions As Risks Mount For Banks

  

  Banks should scrutinize directors and officers exclusions for artificial intelligence, disclosure and cybersecurity risks during policy renewal negotiations to preserve coverage amid the current uptick in insurer scrutiny and related shareholder litigation, say attorneys at Jones Walker.

• What Lawyers Should Know Before Accepting Crypto Payment

  

  As clients increasingly request to pay legal fees, retainers and escrow funds using cryptocurrency, lawyers should consider how only a handful of state bar authorities have addressed the issue with varying ethics opinions, as well as the related questions that no authority has yet answered, says attorney Felix Shipkevich.

• Conn. Insurers Should Prepare To Explain Premium Hikes

  

  As of Jan. 1, Connecticut insurers must provide a reasonable explanation for personal risk insurance premium increases upon policyholder request, and thus should familiarize themselves with a recent bulletin that prescribes the details, say attorneys at Troutman.