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This Week's Double Feature
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Proposed SEC Rule Will Regulate Indexed Annuities as Securities
By Stephanie G. Techau, Nyemaster, Goode P.C.
On June 26, 2008, the Securities and Exchange Commission published proposed Rule 151A under the Securities Act of 1933. The proposed rule seeks to expand the SEC’s regulatory authority to include “indexed annuity” products. Under the proposal, annuities would be regulated as securities if the annuity makes reference to securities or a securities index and is “likely to generate performance greater than the guaranteed amount under the contract.” The SEC seeks to have agents or producers who sell equity indexed annuities brought under the supervision of the Financial Industry Regulatory Authority (FINRA). The full text of the proposed rule can be found at http://www.sec.gov/rules/proposed/2008/33-8933.pdf. Under present rules, if an indexed annuity is issued by a state-regulated insurance company and is not marketed primarily as an investment vehicle, it is considered to be an insurance product and not a security.
[FULL STORY]
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National Foundation for Judicial Excellence Hosts Annual Judicial Symposium
“Timely topics”—“Intellectually stimulating”—“High-caliber”*
The National Foundation for Judicial Excellence (NFJE) successfully produced its Fourth Annual Judicial Symposium, Justice in Jeopardy? The Search for Due Process, Statutory Construction and Ethics in New Age Litigation. More than one hundred state appellate court judges attended the one day seminar at Chicago's Drake Hotel in July. A sampling of the program included a keynote luncheon address by The Honorable Alexander M. Sanders, Jr., President Emeritus of the College of Charleston and the Chairman of the Board and a founder of the Charleston School of Law, and the following presentations:
[FULL STORY]
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Legal News
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Report on Hearing on Proposed Amendments to Civil Rules 26 and 56
By R. Matthew Cairns, Gallagher, Callahan & Gartrell, PC, Concord, New Hampshire
The Advisory Committee on Civil Rules is currently holding hearings across the country on proposed amendments to Federal Rules of Civil Procedure 26 and 56. See http://www.uscourts.gov/rules/2008-08-Memo_to_Bench_Bar_8_8_08.pdf. A hearing was held on November 17, 2008 in Washington, D.C. Future hearings are set for San Antonio on January 14, 2009 and San Francisco on February 2, 2009. The proposed amendments and the Advisory Committee’s comments can be found at http://www.uscourts.gov/rules/Reports/CV_Report.pdf. It is important for those interested in civil justice to become familiar with the proposed amendments as they seek to revise two very important rules relied upon by federal court attorneys – expert disclosure and summary judgment. To read Matt Cairns’ entire report, click here.
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DRI News
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It takes many leaders to assemble a successful annual meeting. DRI President Marc E. Williams of Huntington, West Virginia, and the 2008 Annual Meeting Steering Committee headed by J. Michael Weston of Cedar Rapids, Iowa, want to thank all of the volunteers for successfully marketing the 2008 meeting. Listed below are the Regional Marketing Chairs. Others will be listed in upcoming issues.
Atlantic Chair
Patrick J. Sweeney, Sweeney & Sheehan PC, Philadelphia, PA
Canada Chair
Leilah Edroos, Brown & Korte Barristers, Toronto, ON
Central Chair
James E. Lozier, Dickinson Wright PLLC, Lansing, MI
Mid Chair
Harold “Pete” Petersen, Petersen & Associates, Salt Lake City, UT
[FULL STORY]
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Congratulations to the following new DRI State Representatives:
R. Bruce Barze, Balch & Bingham LLP, Birmingham, AL
Robert L. Coleman, Reid Burge Prevallet & Coleman, Blytheville, AR
Robert L. Dietz, Zimmerman Kiser Sutcliffe, Orlando, FL
Lynn M. Roberson, Swift Currie McGhee & Hiers LLP, Atlanta, GA
Mary Kathleen Molloy, Arnzen Wentz Molloy Laber & Storm PSC, Covington, KY
Daniel P. Moylan, Venable LLP, Towson, MD
Christopher A. Kenney, Kenney & Sams PC, Boston, MA
Todd W. Millar, Smith Haughey Rice & Roegge, Traverse City, MI
Natalie S. Watson, McCarter & English LLP, Newark, NJ
Adam R. Mordecai, Wiggin & Nourie PA, Manchester, NH
Kathleen M. Wilson, Keleher & McLeod PA, Albuquerque, NM
Joseph A. Macerelli, Grogan Graffam PC, Pittsburgh, PA
James H. Tucker, Jr., Manier & Herod, Nashville, TN
Gregory A. Weimer, Hoff Curtis, Burlington, VT
Powell M. Leitch, III, LeClairRyan, Roanoke, VA
Jeffrey G. Frank, Foster Pepper PLLC, Seattle, WA
Daniel I. Reisler, Reisler Franklin LLP, Toronto, ON
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Hotel Registration Deadline Extended to November 26!
It’s not too late to book your room and register on-site for the Insurance Coverage and Practice Symposium, December 4-5 at the Sheraton New York Hotel and Towers. Participate in a discussion of super-nova legal developments, hear an experienced judge from the United States Court of Appeals for the Eighth Circuit, an executive from the London Market, and other stellar lawyers and insurance professionals give practical advice on how to navigate among the nebulosity of current issues. Bring your family and friends to experience the many holiday sights and sounds of New York City, including:
• The Christmas Tree at Rockefeller Center
• Radio City Christmas Spectacular
• The Holiday Lights Tour
• Ice Skating at Rockefeller Center
The hotel registration deadline has been extended to November 26. Book your room now and take advantage of the discounted rate by calling the Sheraton New York Hotel and Towers directly at 212.581.1000.
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And The Defense Wins!
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DRI board member Charles Cole of Schuyler Roche, P.C. in Chicago successfully defended an emergency medical physician in a wrongful death medical malpractice case in Cook County, Illinois. The plaintiff, the estate of a deceased 10-year-old girl, claimed that the emergency doctor was negligent in failing to assess and diagnose a chronic inflammatory bowel disease which eventually led to her death three months later. Two pediatricians were also defendants, having seen the child before and after the emergency department visit in question.
[FULL STORY]
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DRI member Richard A. Lind of Lind, Jensen, Sullivan & Peterson, P.A. in Minneapolis, Minnesota, was a member of the defense team that successfully defended a national restaurant chain (the bar) in a three week liquor liability trial in Minnesota state court. The allegedly intoxicated person (AIP), also a defendant in the case, had been drinking with co-workers at the bar the night before the accident. Bar tabs for the five individuals showed a total of approximately 70 drink-equivalents served to the group in less than three hours. Approximately 9.5 hours after leaving the bar, the AIP caused an accident that severely injured the plaintiff, who had been riding a motorcycle.
[FULL STORY]
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DRI member Christopher Duggan of Smith & Duggan LLP in Massachusetts successfully defended Stanley Access Technologies in a product liability suit challenging the design of automatic bifold doors at a drug store in Cambridge. The plaintiff, an elderly woman, claimed that the sensor package on the doors failed, allowing the doors to knock her down, resulting in severe injuries and consequential damages. The case was complicated by the fact that the drug store, which was also a defendant, had discarded a surveillance tape of the scene, despite having been given timely notice of the accident by the plaintiff's family and her lawyer. This resulted in a spoliation charge being given to the jury against the store.
[FULL STORY]
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On October 2, 2008, Walter E. Judge of Downs Rachlin Martin PLLC in Burlington, Vermont, obtained a defense verdict for his client Hannaford Bros. Co. supermarket in a slip and fall case. An elderly woman slipped and fell on a clean, dry floor inside the store, as she was coming out of the ladies restroom, and broke her shoulder. It was undisputed that the floor was dry and clean. So there was really no good reason for the plaintiff's fall, except that she was elderly and that she may have been in a bit of a hurry (she admitted that she was only in the store to use the bathroom and that her husband was waiting for her in the car), and she had to make an abrupt move on her right foot to avoid walking into a shopper with a cart as she exited the bathroom. Her right foot slippedthe same foot that had given her some trouble in the past.
[FULL STORY]
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DRI members Todd G. Smith and Linda S. Schmidt of Godfrey & Kahn, S.C. in Madison, Wisconsin, teamed with colleagues recently to prevail in an appeal before the U.S. Court of Appeals for the Seventh Circuit, affirming the dismissal of a purported class action suit brought under the Employee Retirement Income Security Act of 1974. The purported plaintiff class had challenged a lump sum distribution provision in the defendants' defined benefit pension plans that required participants to select the lump sum option within three months of their separation from service. If the participant did not elect to receive a lump sum distribution within the required time period, the participant could no longer select a lump sum and would receive his or her retirement benefits in annuity form.
[FULL STORY]
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Hugh B. Bright, Jr. and Michael J. King of Woolf, McClane, Bright, Allen & Carpenter, PLLC in Knoxville, Tennessee, and David C. Marshall and William T. Wood, III of Hawkins and Parnell, LLP in Atlanta, Georgia, obtained a defense verdict for their client, an insulation contractor and supplier, in an asbestos-related mesothelioma action tried in the Circuit Court of Hamilton County, Tennessee, from April 29 to May 9, 2008 (Evelyn Nye, Individually and as Surviving Spouse and Next of Kin of Hugh Todd Nye v. Bayer CropScience, Inc., et al., Case No. 06C760). Counsel from Motley Rice LLC in Mount Pleasant, South Carolina, and Summers & Wyatt, P.C. in Chattanooga, Tennessee, represented the plaintiff.
[FULL STORY]
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DRI wants to hear about your win! Send a short summary and recent photo of yourself to Barb Lowery by e-mail (blowery@dri.org).
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Legislative Tracking
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Legislative Update — EMPLOYMENT LAW
New Jersey
NJ HB 2292: Discrimination.
• An Act concerning the "Law Against Discrimination" and revising various sections of the statutory law.
• 11/13/2008 – Reported out of Judiciary Committee; to second reading.
NJ HB 3437: Contracts.
• An Act concerning employment contracts and amending P.L.1945, c.169; prohibiting certain provisions in employment contracts.
• 11/13/2008 – Introduced; referred to Labor Committee.
New York
NY SB 8793: Workplace bullying.
• Establishes a civil cause of action for employees who are subjected to an abusive work environment.
• 11/14/2008 – Introduced; referred to Rules Committee.
MISCELLANEOUS
Texas
TX HB 42: Personal injury liability.
• Relating to liability for injury arising from a motor vehicle accident; nonavailability of noneconomic or exemplary damages in certain circumstances.
• 11/10/2008 – Filed.
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Quote of the Week
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You’ll never get mixed up if you simply tell the truth. Then you don’t have to remember what you have said, and you never forget what you have said.
—Sam Rayburn
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DRI CLE Calendar
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Fire and Casualty
November 20-21, 2008
Marriott Chicago Downtown, Chicago, Illinois
Dissecting the Anatomy of a Trucking Case — The Beginning (webconference)
November 20, 2008
How to Manage Insurance Coverage in the Subprime Crisis (webconference)
December 2, 2008
Insurance Coverage and Practice
December 4-5, 2008
Sheraton New York Hotel and Towers, New York, New York
Dissecting the Anatomy of a Trucking Case — Suit Filed, Now What? (webconference)
December 18, 2008
Dissecting the Anatomy of a Trucking Case — The Trial and Beyond (webconference)
January 20, 2009
Civil Rights and Governmental Tort Liability
January 28-30, 2009
The Ritz-Carlton New Orleans, New Orleans, Louisiana
Sharing Success — A Seminar for Women Lawyers
March 5-6, 2009
Loews Santa Monica Beach Hotel, Santa Monica, California
Medical Liability and Health Care Law
March 11-13, 2009
Lake Buena Vista, Florida
Damages
March 18-20, 2009
Las Vegas, Nevada
For all other seminars and webconferences, click here.
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DRI Defense Practice Form Book
Evidentiary Privileges for Corporate Counsel
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