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This Week's Double Feature
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Fiduciary Duties in the Zone of Insolvency
By Elizabeth H. Getches and Scott R. Bauer, Moye White LLP
During these challenging economic times, as companies face cash-flow problems or even decide to cease operations, creditors will likely attempt to push the envelope with respect to claims against directors of insolvent corporations and managers of insolvent limited liability companies. It is commonly understood that once an entity is insolvent, a director’s fiduciary duties shift from the corporation’s shareholders to its creditors. Whether, and to whom, duties are owed immediately prior to a company’s insolvency, in the so-called “zone of insolvency,” involves important considerations for corporate counsel and anyone serving as a director.
[FULL STORY]
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Orphan Works: Finding a Home for a Copyrighted Work that Has “Lost” Its Author, or Theft in the Night?
By Bernie Klosowski[1]
Your blue ribbon business client recently purchased a historic estate with an imposing manor house and a number of old out-buildings. In fact, you referred the matter to your no-mistakes real estate partner who helped close the deal for the client. A few weeks after the closing, as you’re wrapping up a meeting with your client about an employee issue, he mentions that his wife discovered some old photographs in one of their “new” out-buildings. The client is thinking about getting the photographs “touched up” to use them in a marketing campaign. As he settles back in his chair to stay awhile, you see the question coming. “What do you think?” he asks. “Can I use the photographs to market my business?”
[FULL STORY]
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DRI News
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Last issue for 2008! The Voice will resume on January 7, 2009. DRI wishes everyone a safe and happy holiday!
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Congratulations to Shook, Hardy & Bacon LLP (SHB) for being named the World's Leading Product Liability Law Firm by Legal Media Group. SHB partner Harvey Kaplan was named the World's Leading Product Liability Lawyer for 2009 in its Expert Guides: Guide to the World's Leading Product Liability Lawyers. The following DRI members were among the SHB partners who were also recognized in the biennial directory: Robert Adams (Kansas City), Simon Castley (London), Walter Cofer (Kansas City), Timothy Congrove (Kansas City), Sarah Croft (London), Gregory Fowler (Kansas City), Laurel Harbour (Kansas City), Gary Long (Kansas City), Craig Proctor (Geneva), Frank Rothrock (Orange County) and former DRI President William R. Sampson (Kansas City).
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2009 State Representatives and Executive Directors Meeting
State Representatives, Executive Directors and DRI officers will meet March 12-13 at the JW Marriott New Orleans. For more information, contact Cheryl Palombizio at 312.698.6207 or by email (cpalombizio@dri.org).
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National Foundation for Judicial Excellence
From the beginning, NFJE was envisioned as an effort of the defense bar. NFJE is the only organization of its kind providing judicial education that is governed by defense lawyers. Established in 2004, its mission is to address important legal policy issues that affect the law and the civil justice system by providing meaningful education for the judiciary, publishing scholarly works and engaging in other efforts to enhance judicial excellence and fairness for all engaged in the judicial process. NFJE is important and effective in promoting a balanced evaluation of issues by the judiciary.
[FULL STORY]
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Start the New Year with the Best of Civil Rights CLE
Civil rights and governmental liability litigation continues to grow at an astounding rate. DRI’s 2009 Civil Rights and Governmental Tort Liability Seminar on January 28-30 in New Orleans will assemble leading experts, trial attorneys and professors to present a variety of substantive and practical topics:
• An e-discovery program that focuses on the litigation hold process as it relates to governmental entities
• A session exploring underutilized doctrines and defenses
• The latest updates in the areas of First Amendment retaliation, conspiracy, Fourth Amendment and substantive due process claims
[FULL STORY]
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DRI Is Moving — Please Update Your Records
New address as of December 29, 2008:
DRI Headquarters
55 West Monroe Street
Suite 2000
Chicago, IL 60603
Phone: 312.795.1101
Fax: 312.795.0749
Email: dri@dri.org
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And The Defense Wins!
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In granting Penn-America Insurance Company’s motion for summary judgment, the Court of Common Pleas of Allegheny County, Pennsylvania decided a case of first impression in Pennsylvania and struck a blow for time honored principles of grammatical construction and usage. Representing the defendant was Joseph J. Bosick, a partner in the Pittsburgh office of Pietragallo Gordon Alfano Bosick & Raspanti, LLP.
[FULL STORY]
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Rick Quinlivan of Quinlivan Wexler LLP in Santa Ana, California, successfully represented Cincinnati Incorporated in a product liability case recently. The product involved was a press brake, a machine used primarily for bending metal. The plaintiff suffered the amputation of three fingers on his left hand. The plaintiff submitted evidence of several accidents of a similar nature that had occurred prior to the date of manufacture of the machine in question. It was claimed that the defendant failed to guard the point of operation and failed to adequately warn and instruct.
[FULL STORY]
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DRI member Bill Berk of Berk, Merchant & Sims, PLC, Coral Gables, Florida, along with a partner and associate, obtained a defense verdict on October 24, 2008, in Monaco Beach Club, Inc. vs. QBE Insurance Corporation, Case No. 06-2066-CA (Collier County, Florida Circuit Court).
[FULL STORY]
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DRI members David M. Davis and Hollis Hudson Gaston of Davis & Wilkerson, P.C. in Austin, Texas, recently obtained a dismissal of a pediatric surgeon in a medical malpractice case originally filed in August 2002 in Travis County District Court in Austin. After six days of the jury trial, the plaintiff voluntarily dismissed his case against the pediatric surgeon and continued the case against the remaining defendants.
[FULL STORY]
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DRI members William K. McVisk and Mary K. Cryar of Johnson & Bell, Ltd. in Chicago successfully defended an insurance company in a bad faith failure to settle case. A jury in the underlying medical malpractice case had awarded the plaintiff more than $3 million against a physician and the physician's employer, a clinic in Iowa and western Illinois.
[FULL STORY]
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Arguing on behalf of long-term firm client Deere & Company, Peter Daniel and Dan Cranshaw from Lathrop & Gage’s Kansas City, Missouri office delivered a jury verdict for the manufacturer of agricultural, construction and consumer products.
[FULL STORY]
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Keep those defense wins coming! Send a short summary and recent photo of yourself to Barb Lowery by e-mail (blowery@dri.org).
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Leader Spotlight
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DRI is pleased to shine the leader spotlight this week on Peter E. Strand, senior partner in Shook Hardy & Bacon LLP’s Washington, D.C. office. He specializes in intellectual property and complex commercial litigation, and he has successfully tried numerous multi-million-dollar cases in federal and state courts. Mr. Strand holds an LLM in intellectual property law, with an emphasis on IP damages. He is an active member of DRI’s Commercial Litigation Committee, serving as the committee’s Seminar Chair in 2006, and more recently as Chair of the Intellectual Property Substantive Law Group. Mr. Strand has recently been appointed to serve as Chair for DRI’s Research and Development standing committee.
[FULL STORY]
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Legislative Tracking
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Legislative Update — ASBESTOS
Ohio
OH SB 370: Trust claims.
• To enact sections 2307.951, 2307.952, 2307.953, and 2307.954 of the Revised Code to require claimants in asbestos tort actions to make certain disclosures pertaining to asbestos trust claims that have been submitted to asbestos trust entities for the purpose of compensating the claimant for asbestos exposure.
• 12/17/2008 – Passed by Senate; referred to House Judiciary Committee; reported out as amended.
COMMERCIAL LITIGATION
Nevada
NV HB 95: Unfair trade practices.
• An Act relating to unfair trade practices; revising the conduct to which the Nevada Unfair Trade Practice Act applies; revising the relief that the Attorney General may seek for violations of the Nevada Unfair Trade Practice Act; requiring that information received or shared in cooperation with the Federal Government or other states be kept confidential in certain circumstances; permitting the Attorney General to bring a civil action for violation of the Nevada Unfair Trade Practice Act or federal antitrust statutes on behalf of the State, its agencies, political subdivisions, districts or municipal corporations; increasing the amount of money that may be kept in the Attorney General’s Special Fund; and providing other matters properly relating thereto.
• 12/15/2008 – Prefiled; referred to Committee on Commerce and Labor.
EMPLOYMENT LAW
Missouri
• MO HB 104: Hiring an unauthorized alien.
An Act to repeal section 285.535, RSMo, and to enact in lieu thereof one new section relating to unauthorized aliens; modifies the sanctions for hiring an unauthorized alien.
• 12/07/2009 – Prefiled.
INSURANCE LAW
Oklahoma
OK HB 1021: Recovery limits.
• An Act relating to the Compulsory Insurance Law; limiting recovery for damages or claims against insurer for liability for motor vehicle accidents in certain circumstances; providing exceptions; providing for who may assert limitation; providing for codification; and providing an effective date.
• 12/09/2008 – Prefiled.
MEDICAL LIABILITY AND HEALTH CARE LAW
Michigan
MI SB 1622: False claims.
• A bill to amend sections 2, 7, 10a, 10c, 11, and 12 (MCL 400.602, 400.607, 400.610a, 400.610c, 400.611, and 400.612), sections 2 and 7 as amended by 1984 PA 333 and sections 10a and 10c as added and section 11 as amended by 2005 PA 337, and to add sections 14 and 15 of The Medicaid False Claim Act.
• 12/11/2008 – Passed house; returned to Senate.
Montana
MT LD 350: Medicaid third-party liability.
• An Act generally revising laws relating to recovery of Medicaid benefits for services paid on behalf of Medicaid recipients; removing the county from the recovery of Medicaid benefits process; providing definitions; and for related purposes.
• 12/16/2008 – Introduced.
PRODUCT LIABILITY
Ohio
OH HB 500: Ignition propensity standards.
• To amend sections 5703.21 and 5743.08 and to enact sections 3739.01 to 3739.18, 3739.99, 4112.31, and 4112.32 of the Revised Code to establish reduced ignition propensity standards for cigarettes, to authorize the State Fire Marshal to monitor and the Attorney General and the State Fire Marshal to enforce such standards, to establish penalties for violations of such standards, and to establish a New African Immigrants Commission to advocate for the development and implementation of policies and programs to address the needs of the State's sub-Saharan African population.
• 12/16/2008 – Reported out as amended by Committee on Insurance, Commerce and Labor.
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Quote of the Week
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Time is a dressmaker specializing in alterations.
—Faith Baldwin
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DRI Cares
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DLA Piper launched Access to Education, the signature pro bono project for the New York office, two years ago. The program aims to improve the educational outcomes of low-income children in New York City by working on several fronts. First, they represent Head Start programs as pro bono general counsel. Second, they provide direct representation to New York City public school students who are facing long-term suspensions or are involved in the special education system. Finally, they are undertaking several policy projects that seek to address the needs of low-income children in New York City.
[FULL STORY]
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DRI CLE Calendar
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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
Walt Disney World Dolphin, Lake Buena Vista, Florida
Damages
March 18-20, 2009
Bellagio, Las Vegas, Nevada
Toxic Torts and Environmental Law
March 19-20, 2009
Arizona Biltmore, Phoenix, Arizona
For all other seminars and webconferences, click here.
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Evidentiary Privileges for Corporate Counsel
DRI Defense Practice Form Book
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