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- Tort Trial & Insurnace Practice-

Brief Winter 2009

Winter 2009 Vol. 38 No. 2



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Each issue of The Brief, the Section's quarterly magazine, includes an array of practical articles of interest to plaintiffs' and defense lawyers who practice tort or insurance law.  In addition, the popular "Practice TIPS" section provides practical, how-to advice on practice and litigation matters.

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The Brief
Winter 2009 Vol. 38 No. 2
Article Abstracts

" Framing the Government Contractor Defense: Origin, Extension, and Potential"
by Christopher R. Christensen and Anthony U. Battista
In Boyle v. United Technologies Corp. the Supreme Court established the government contractor defense, a power-ful weapon for military equipment manufacturers to defend product liability claims, which also is used to immunize manufacturers of nonmilitary products supplied to the government. Two litigators discuss the development of the defense, the Boyle progeny, and various efforts to expand or restrict Boyle’s reach. In the next government contrac-tor defense case it reviews, the Supreme Court may resolve the conflict in the circuits about the standard to apply in a failure-to-warn case and may define the defense’s limits outside the products liability context.

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" Punitive Damages Immunity of Federal Instrumentalities"
by Robert H. Wright
Federal instrumentalities are organizations that are not part of the federal government but nevertheless have a fed-eral charter and a public mission—such as Fannie Mae, Freddie Mac, and the American Red Cross—and have the authority to sue and be sued. Appellate courts have split on the question of whether this authority waives a federal instrumentality’s immunity from punitive damage claims. In light of the economic and societal importance of these instrumentalities and the disputes in which they are increasingly involved, their immunity from punitive damage claims has come into question and may be at the center of the next wave of punitive damage claims.

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" Allocating Coverage among Covered and Noncovered Claims: An Update on the Duty to Defend"
William E. McGrath Jr.
With the increasing complexity of civil litigation, insurers face actions against policyholders that present both cov-ered and noncovered claims. One complex coverage expert surveys national case law and raises issues that poli-cyholders and insurers should consider, including defending at the outset or later addressing an obligation to reimburse, apportioning expenses, controlling and directing the defense, and navigating conflicts between the insurer and policyholder.

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" Capitalizing on Intellectual Property: An Introduction to Licensing"
by Joel W. Mohrman
An intellectual property (IP) technology license must address the transfer of crucial information to the licensee while protecting the licensor from undue burdens in implementing the transfer. License agreements also may incorporate warranties, representations regarding the validity of ownership rights, and indemnification provisions. The author, an IP expert, discusses key issues to consider when drafting and negotiating an IP license agreement, focusing on patents, trademarks, and copyright.

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" Sexual Misconduct Claims: A Policyholder's Perspective of Key Coverage Issues"
by Barron L. Weinstein
Sexual abuse claims involve features distinguishing them from more common bodily injury claims, such as allega-tions of repeated abuse over a period of years and the effect that such sensitive claims have on organizations and employees. An insurance coverage expert examines coverage-related issues arising from the unique features of sexual abuse claims: lost policies, exclusions for expected or intended injury, trigger of coverage, number of occur-rences, and intercarrier disputes.

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" Understanding Current Trend Securities Class Actions"
by Perry S. Granof and Gary L. Gassman
Securities class action filings declined between 1998 and 2006 as a result of federal legislation, judicial decisions, enforcement, and increased corporate controls. Two corporate liability experts analyze reasons for the decline and note that the subprime mortgage crisis and credit market turmoil have put securities class action filings on the rise again. Recent court decisions and class certification rulings may make future securities actions even more expen-sive for directors, officers, and other defendants.

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" Practice Tip: The Importance of the Opening Session of Mediations"
by Peter F. Carello
The opening session of a mediation is often where the mediation is won or lost. So maintains one insurance expert who explains how the opening session allows adversaries to learn about one another, put context around negotia-tions, and make their first and best impressions. He advises that parties who invest time and energy in the opening session will be set apart from the crowd and rewarded with greater success at mediation.

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