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2017 June Newsletter - Section Updates
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Appellate Law


On the heels of the surprising general election in the U.K., and commensurate with the international flavor of the Annual Meeting in Montreux, our section and the Commercial Litigation and International Sections will present an international panel of attorneys who will address current issues of importance and interest. Among the topics: (1) the differences in litigating in Continental Europe, the U.K., and the U.S., with emphasis on pre-trial discovery, admission of evidence, and trials by jury vs. trials by the judge; (2) how judgments are enforced in E.U. member states; and (3) where does the U.K. now stand in terms of attempting to retain certain aspects of E.U. membership, including the application of critical E.U. laws and procedural rules pertinent to commercial litigation.

Our program will be on Thursday, July 27 at 7:45 a.m. Check your on-site brochure for location information. The moderator will be William Vita of Westerman Ball et al. in Uniondale, NY. The speakers include Jorge Angell of L.C. Rodrigo Abogados in Madrid, Spain, Stephen Carter of Carter Perry Bailey LLP in London, Stephen Brake of Nutter McClennan & Fish in Boston, and Charlie Frazier of Alexander Dubose et al. in Dallas.


Civil Rights

Nonconforming Ninth Circuit Rule on Excessive Force Overturned by SCOTUS


InCounty of Los Angeles v. Mendez, the United States Supreme Court overturned a Ninth Circuit doctrine called the “provocation rule” applied in police excessive force cases. This rule, favoring plaintiffs, held that a police officer’s otherwise reasonable force was unreasonable under the Fourth Amendment “where an officer intentionally or recklessly provokes a violent confrontation, if the provocation is an independent Fourth Amendment violation.”


InMendez, police sought an armed and dangerous parolee whom they believed was hiding in or around a residence. The police found a shack in the rear of the target residence and entered the shack without a warrant, did not knock and announce their presence, and confronted plaintiffs who were napping. Mendez rose from his bed holding a B.B. gun he used to kill vermin. Alarmed by the sight of a gun, the officers opened fire, hitting plaintiffs with multiple shots.


The trial court awarded nominal damages on the claims of warrantless search and the no-knock entry but held the officers’ use of force was objectively reasonable underGraham v. Connor, 490 U. S. 386 (1989). Nonetheless the trial court applied the provocation rule, finding the officers liable for use of excessive force. On appeal, the Ninth Circuit afforded the officers qualified immunity on the no-knock entry claim, held the warrantless search violated clearly established law, and upheld application of the provocation rule.


The Supreme Court reversed application of the provocation rule, holding the Fourth Amendment provides no basis for the rule because it is inconsistent with the settled and exclusive analysis used to determine whether force complies with the Fourth Amendment. UnderGraham, the court must examine “whether the totality of the circumstances justifie[s] a particular sort of seizure” from the perspective of a reasonable officer in possession of those facts at the time. The provocation rule essentially established an alternate Fourth Amendment analysis, first to determine if a separate constitutional violation created a situation that led to the use of force and, second, to determine whether the separate violation was committed by the officers intentionally or recklessly. The Court reasoned that every potential violation should be analyzed separately. Under the provocation rule, however, the courts would have to apply vague standards of causation and gauge the subjective intent of the officers by conflating all alleged Fourth Amendment violations into one transaction.


The hallmark of Fourth Amendment jurisprudence is objective reasonableness. An officer should not be held liable if his actions are objectively reasonable in light of the facts and circumstances of which he was aware at the time he acted. The provocation rule, according to the Supreme Court, was an unwarranted and illogical extension ofGraham. With its reliance on causative relationships of distinct acts, the rule converts Fourth Amendment jurisprudence into proximate cause tort law. The Supreme Court, in its unanimous decision, righted the Fourth Amendment ship in the Ninth Circuit.



Construction Law

Quote of The Month

If you are going through hell, keep going! Winston Churchill


Featured Member – Marc Young
Marc Young is a co-founder of Cokinos | Young and is at the helm of the firm’s newest office in Austin. Marc handles a wide variety of claims, such as product liability, construction defects, premises liability, commercial disputes and trucking accidents. Marc is Board Certified in Personal Injury Trial Law by the Texas Board of Legal Specialization and has tried well over 100 cases in both state and federal courts. He continues to try a significant number of cases each year. Marc is knowledgeable and well-versed in matters relating to products liability, trucking and transportation law, including many lawsuits involving death or other serious injuries. Marc heads up the firm’s Tort Litigation Section, which deals primarily with the defense of corporations and individuals sued for claims involving personal injury and property damage. Marc also remains active within the defense bar by writing, speaking and chairing important committees and subcommittees.


Upcoming Events

During the week of July 27, 2017 at the Fairmont Le Montreux Palace, Derek Lick, Matt Cairns, and Robert Moore will address “Contractual Risk Transfer – The Changing World of Indemnification and Insurance in Construction Contracts and Litigation.”


Wouldn’t it be nice if others would contractually agree to take responsibility for your errors?  The panel will first discuss how general contractors attempt to transfer risk to subcontractors and require subcontractors provide them with insurance coverage.  Then they will focus on how some states have begun to prohibit or limit such requirements either through legislative action or as the result of case law.  These risk-transfer provisions can have a significant impact on our clients, as they can require indemnification for all risk and liability, sometimes regardless of fault.  Similarly, the insurance coverage provisions can require a subcontractor to obtain insurance for the general contractor for the general contractor’s own fault – sometimes in an attempt to circumvent anti-risk-shifting law.  The panel is expected to highlight the changing landscape of risk shifting so that FDCC members can quickly assess the impact and enforceability of such provisions. Please plan to attend!


For the Winter meeting at Amelia Island, we are planning for the following:

“Reversing the Reptile Through Voir Dire”

Stuart Simon of AJC and Marc Young of Cokinos | Young and who is Chair of Trial Tactics, and Marc Harwell of Leitner, Williams, Dooley & Napolitan, PLLC and perhaps a few others will explore novel methods of questioning during voir dire to reveal the jurors who are most susceptible to reptile tactics by plaintiff’s counsel, to rehabilitate the venire panel, and to reveal to the panel the manipulation that counsel for the plaintiff has employed and in so doing use the reptile theory to bite the real reptile.


News and Noteworthy

On behalf of a very large and solvent GC, Marc Young just settled a 22 story defective Condo case with claimed damages of 36 million, before suit was ever filed. Texas has statutory requirements that require the plaintiff to provide a detailed report and opportunity to inspect as a condition precedent to filing suit. Due to the size of the structure and breadth of the alleged defects, Marc convinced the HOA to give him an extra sixty days before they filed suit. They agreed, on the condition that we mediate the last week of the deadline and try to resolve it. In the meantime, Marc’s client got its subs out and started looking at fixes. The Condo Association allowed us to do mock ups of the proposed repairs so they and their experts could be convinced the repairs would work, and it also allowed our subs to get real lean on their bids because they knew exactly what it would take to do the work. His client had a wrap policy that had a diminishing limits primary and a large excess. Only the excess came to the mediation, and the case settled. Nobody thought it could happen. But it did! Way to go Marc!


Please send to Marc Harwell atmarc.harwell@leitnerfirm.comnotice of new noteworthy verdicts, settlements, decisions; awards, honors, or achievements; and articles for publication to the Construction Section.


Blog Post

Be on the lookout for our section’s blog this month. 


And each quarter thereafter, the Construction Section will continue to post an informative blog that provides practical advice and information that can only help you in your practice. If you have addressed through brief or otherwise a topic that is particularly relevant and insightful for the Construction Industry, please send to Marc Harwell for consideration.



If you know of an attorney who you think is worthy of the FDCC, please mention him or her to Marc, and he will assist with the admissions proposal process.


Sign up for Switzerland!



Data Breach, Privacy & Cyber Insurance Law


WannaCry: An Aptly Named Beginning to Large-Scale Ransomware Attacks?


On Friday, May 12, 2017, the ransomware attack known as WannaCry began.[1] Within a day, the malware infected more than 230,000 computers in over 150 countries.[2] Thankfully, on May 15, 2017, a web security researcher discovered a mistake in the malware’s code.[3] The web security researcher was then able to disable the further spread of the malware by exploiting the coding mistake. But future cyberattackers may not make the same mistake that WannaCry’s coders did.


WannaCry is classified as a ransomware attack. It was unique in that it spread in a devastating fashion. All ransomware attacks target vulnerabilities in a victim computer’s software. Through those vulnerabilities, attackers then spread malware that scrambles and encrypts the victim’s computer. The attackers then offer to unscramble and decrypt the victim’s computer for a fee/ransom. Many ransomware attacks are limited in scope because when software developers become aware of vulnerabilities in their programs, they issue patches that eliminate those weaknesses. However, every so often, cyberattackers discover a vulnerability in software that had never been found before so when the cyberattackers target that vulnerability, everyone who uses that software is at risk. These vulnerabilities are known as zero-day vulnerabilities because there is no time to patch the vulnerability prior to an attack. The WannaCry attack targeted a zero-day vulnerability in Microsoft’s software. Therefore, all computers that ran Microsoft were at risk until Microsoft could issue a patch.


Usually ransomware spreads through phishing—fraudulently sending emails with infected attachments which when opened target a software vulnerability and thus encrypt the computer. WannaCry, however, was so effective because the vulnerability it targeted was Microsoft’s Server Message Block (SMB) protocol.[4] The SMB is an application-layer network protocol, meaning that it is the mechanism by which networked computers share access to files, printers, etc.[5] Thus, WannaCry was not dependent on phishing in order to spread, but rather spread automatically to all computers in a network. In other words, the vulnerability WannaCry targeted made it spread quickly, and uncontrollably.


Fortunately, WannaCry was not as devastating as it could have been. However, there is no reason to believe that similar cyberattacks will fail like WannaCry. There are many ways that law firms and businesses can reduce the likelihood of being the victims of cyberattacks, ranging from buying cyberattack insurance to hiring outside firms to supply security. In the meantime, it’s important to update your computers’ software when available, because those patches can prevent you from being the next ransomware WannaCry victim.


[1] Bill Brenner, “WannaCry: the ransomware worm that didn’t arrive on a phishing hook,” Naked Security by Sophos, May 17, 2017.

[2] “Unprecedented” cyberattack hits 200,000 in at least 150 countries, and the threat is escalating,” CNBC, May 14, 2017.

[3] Elizabeth Weise, “How a 22-year-old inadvertently stopped a worldwide cyberattack,” USA Today, May 13, 2017.

[4] Bill Brenner, “WannaCry: the ransomware worm that didn’t arrive on a phishing hook,” Naked Security by Sophos, May 17, 2017.

[5] “Microsoft SMB Protocol and CIFS Protocol Overview,” Microsoft, October 22, 2009.

Drug, Device and Biotechnology

  • Welcome Jessica Davis! Jessica recently joined the FDCC ranks and is the newest member of the Drug Device and Biotechnology section.  Even before she joined our section she has been engaged in some issues we are working on and we look forward to her insight and active participation. Jessica’s practice includes defense of medical malpractice, professional negligence, products liability, breach of fiduciary duty, fraud, and premises liability. Her bio is hereWe asked Jessica if she would share additional information and, as you might expect from a fellow FDCC lawyer she said “I would also share with the group that we live in Westerville, Ohio and I am married to my wonderful husband, Scott, and we have 3 beautiful children ages 11, 9 and 7.”

  • Montreux Summer 2017:  On Wednesday, July 26, 2017 at 7:45 a.m. we will hold the joint DD&B/Transportation/Class Action program entitled: From Farm to Table or Felon to Table:FSMA - What is it and what it means for foreign suppliers. An Update on Implementation, Compliance, Litigation and Enforcement.  This will be a dynamic panel addressing compliance requirements, risk reduction strategies and current enforcement and litigation trends under the new rules.  With a new administration at the helm, it is unclear how the agencies will enforce the new requirements but what is clear is that over 4,000 pages of new rules provide a lot for this multi-section panel to cover.

  • A First for the FDA: On June 8, 2017 the FDA requested removal of a prescription opioid. According to the FDA, “[t]his is the first time the agency has taken steps to remove a currently marketed opioid pain medication from sale due to the public health consequences of abuse.” DD&B Opioid Webcast We expect to have our webcast scheduled for early September 2017.  Liability issues surrounding this class of products continue to evolve involving claims by states, cities, municipalities and Tribal Nations against multiple industry sectors.  Our panel will outline where we are today, how we got here and what to expect going forward. The so-called “opioid epidemic” has unique enforcement and litigation risks throughout the vertical supply chain.

  • Winter 2018 The DD&B Section is working on a program topic for the Winter 2018 program.  We don’t want to steal any thunder from the Winter program planning folks by announcing anything prematurely but, if you are interested in working on a topic that is certain to change at least a few lives, please let one of the section leadership know and we will get you involved.


Energy Utilities Law

Energy Section Member Michael O’Connor co-presenter in Montreaux!


Following last month’s update about Federation member Bruce Parkerson, the Energy Utilities section wanted to focus on Bruce’s co-presenter, section member Michael J. O’Connor.  Michael is the Associate General Manager/Chief Legal Executive for Salt River Project, the country’s third largest public power entity with nearly 6,000 employees.  SRP provides power and water to a large portion of the Phoenix metropolitan area.  Michael joined SRP in 2011 and is responsible for the company’s Legal, Human Resources, Land, and Risk Management Departments.  He was previously a partner Jennings Strouss in Phoenix, and is a member of the American College of Trial Lawyers as well as FDCC.  Michael and his wife, Michelle, have four adult children.

Michael and Bruce will be co-presenters for a fascinating look at the difficulties of defending a company embroiled in litigation on multiple fronts arising out of the same incident.  On September 9, 2010, a 30-inch high pressure natural gas pipeline owned and operated by Pacific Gas & Electric ruptured and exploded in San Bruno, California, about 11 miles from San Francisco.  As explained more fully in the presentation and associated white paper, the pipeline rupture immediately released pressurized natural gas into a residential area and was instantly ignited.  The resulting conflagration was devastating.  38 nearby homes were destroyed and 70 others damaged; 600 firefighting personnel responded to the scene; and 300 homes were evacuated.  Eight people were killed from the blast or fire, and 58 others were injured.  In all, 47.6 million cubic feet of gas was released from the ruptured pipe before gas flow was cut off. 


“Walking the Tightrope: Balancing the Defense in a War on Multiple Fronts” explores the conflicts and complex challenges PG&E dealt with as it was forced to defend hundreds of civil lawsuits and claims, while at the same time being the subject of intense inquiries by several regulatory agencies at the state and federal level. Federal criminal charges were brought against PG&E in the Northern District of California, which ultimately resulted in the company’s conviction on several counts. The presentation and paper also examine the difficulties inherent in fighting multiple battles on multiple fronts, arising from the same set of circumstances, where each action in any context is likely to affect the defense in the others.


Please join Michael and Bruce in Montreaux for this exciting discussion! 



Extra Contractual


South Carolina Federal Court Compels Cedent to Produce All Communications With Its Reinsurer In Bad Faith Action 

Most courts hold that communications and other documents between an insurer (the “cedent”) and its reinsurer are generally not relevant and not discoverable in a coverage action with a policyholder. Courts often note that reinsurance information reflects a business decision by the primary insurer to spread risk or to satisfy statutory reserve requirements, neither of which are typically relevant to coverages issues raised by a specific claim under the policy. However, a bad faith claim can present an exception to the rule. 

One recent example is ContraVest Inc. v. Mt. Hawley Ins. Co., No. 9:15-cv-00304-DCN, 2017 U.S. Dist. LEXIS 48638 (D.S.C. Mar. 31, 2017). In that action, a claimant-assignee of a policyholder’s insurance claim brought a lawsuit against the insurer for declaratory judgment, bad faith, breach of contract, and unjust enrichment. The dispute concerned an owners association lawsuit against the policyholder (a developer) for construction defects. The insurer refused to defend and denied coverage for the claim. The policyholder settled the claims and assigned its rights and claims against the insurer to the owners association who filed the coverage action. During discovery the owners association sought production of all of the insurer/cedent’s communications with its reinsurers for all of the insured’s claims made under the pertinent policies. Despite this broad request not limited to the claim at issue, the magistrate judge issued a report and recommendation compelling the insurer/cedent to produce the communications. The district court affirmed the ruling, finding that communications with the reinsurer were relevant and probative of the insurer/cedent’s good faith to the extent the communications provided an explanation for granting or denying portions of the insured’s claims or otherwise described the handling of the insured’s claims. Because the owners association alleged that the insurer/cedent had changed its interpretation of the policies once it was evident that it would have to provide coverage, the insurer/cedent’s prior handling of claims under the same policies was relevant and, consequently, discoverable. 

ContraVest is a good example of how carefully crafted bad faith allegations can open doors to the discovery of reinsurance information usually found to be irrelevant. Insurers facing such claims should include in their litigation strategy a plan to limit the scope of their communications with reinsurers and avoid allowing the court to decide the issue. This may entail an agreement with the policyholder for a limited production or a search for communications regarding specific issues raised in the litigation. Developing such a strategy requires an early analysis of reinsurer communications to provide sufficient foundation as to what must be protected.



Healthcare Practice


CMS Lifts Prohibition on Nursing Home Arbitration Agreements After SCOTUS Decision

On Monday, June 6, 2017, the Centers for Medicare and Medicaid Services (CMS) proposed a rule rescinding a previous regulation that prohibited nursing homes and long-term care facilities from offering pre-suit arbitration agreements to incoming residents and their families as a condition of admittance.

The proposed revision represents a major change in course for CMS. In October of 2016, the regulation published by CMS prohibited nursing homes and long-term care facilities that participate in Medicare or Medicaid from requiring prospective residents to enter arbitration agreements. Soon after the regulation took effect, the American Health Care Association (AHCA) and several nursing homes in Mississippi brought suit in Federal Court, challenging the regulation and seeking a preliminary injunction to enjoin CMS from its enforcement. (See American Health Care Association vs. Burwell, District Court for the Northern District of Mississippi, Civil Action No. 3:16-Cv-00233). The suit alleged the regulation violated the Federal Arbitration Act and that CMS had exceeded its authority under the Medicare and Medicaid Acts, among other things. The District Court agreed, and issued a preliminary injunction enjoining CMS from enforcing the ban on arbitration. Thereafter, CMS appealed the ruling to the United States Circuit Court of Appeals for the Fifth Circuit. However, rather than submit their appellate brief in the case, CMS voluntarily withdrew its appeal and has now issued the proposed revision eliminating the prohibition on arbitration agreements.

The new proposed rule and CMS’s withdrawal of its appeal comes less than a month after the Supreme Court of the United States (SCOTUS) issued its decision in Kindred Nursing Centers LP vs. Clark. In Kindred, SCOTUS struck down a decision by the Kentucky Supreme Court which held arbitration agreements executed pursuant to a power of attorney were unenforceable unless they contained specific provisions giving the signor authority to waive a resident’s right to a trial by jury.  Accordingly, assuming the proposed revision is implemented, nursing homes and long-term care facilities will be able to offer pre-suit binding arbitration agreements to residents prior to admittance without any legal impediments. The deadline for public comment on the proposed revision is August 7, 2017.



Intellectual Property


On May 22, 2017, the Supreme Court issued its decision in TC Heartland LLC v. Kraft Food Group Brands LLC.  The case involved an interpretation of the venue provision for patent infringement lawsuits, 28 U.S.C. Section 1400(b).  The statute provides that patent infringement lawsuits “may be brought in the judicial district where the defendant resides, or where the defendant has committed acts of infringement and has a regular and established place of business.”  In 1957, in Fourco Glass Co. v. Transmirra Products Corp., the Supreme Court held that, for purposes of Section 1400(b), a domestic corporation resides only in its state of incorporation.  At issue in TC Heartland was whether amendments to the general venue statute, 28 U.S.C. Section 1391, necessitated a change in the Fourco decision, which several lower courts had endorsed.  Ultimately, the court decided that no change was needed and affirmed its earlier decision in Fourco.


Commentators discussing TC Heartland believe that it will limit the ability of so-called “patent trolls” to bring patent infringement lawsuits in what they perceive to be favorable venues instead of the defendant’s state of incorporation.



Law Practice Management


GO, GO, GO to MONTREUX, MONTREUX, MONTREUX!!!  At the FDCC Annual Meeting in Montreux, LPM Vice Chairs Mike Shahloub and John Quinn along with Sheryl Willert will be presenting In Advance of the Crisis: An Ounce of Prevention and Preparation.  Given the terrorist and internet hacking events in the last 30 days alone, that LPM is presenting a program designed to assist us all in designing a plan of action, including systems and procedures, to implement when (not if!) a crisis occurs could not be more opportune!  Expect this one to be standing-room only, because all of us, not just some, can bring back takeaways from what will be such a relevant presentation, Federation-wide. 


News and Noteworthy


FDCC Members - Law Practice Management is an area which touches and concerns ALL of us.  Thus, if something good comes to you or any FDCC Member as the result of hard work, or if you devise or implement a strategy or plan of action which really changes your practice or operation, I would love to share it with the FDCC.  Please send me, LPM Section Chair, Chris Steinmetz at notice of noteworthy verdicts, settlements, decisions, awards, honors, or achievements, and I will share it with all FDCC Members via the Newsletter.



Property Insurance


The New Jersey Supreme Court recently decided its first property insurance case arising from Storm Sandy in Oxford Realty Group v. Travelers Excess & Surplus Lines Co. The central issue was whether the debris removal coverage in the policy applied in addition to the policy’s endorsement sublimiting flood coverage for all losses “resulting from flood to buildings, structures or property in the open” in the policy’s flood zone.  In a 5 to 2 decision, the court held that the debris removal coverage did not apply in addition to the flood endorsement’s $1 million sublimit. If the Appellate Division’s decision had not been overturned, insureds may have used the same line of argument to assert that various other property coverages, including business interruption coverage arising from a flood, would not be limited to the flood sublimit. A similar line of argument also could have been made for other sublimits tied to a particular peril, such as earthquake. The decision also contains some significant holdings that contra proferentem and the reasonable expectations doctrine generally do not apply to benefit sophisticated commercial entities, and that both doctrines apply on if there are ambiguous or misleading policy terms. The court held that because the terms of the policy were not ambiguous, it did not need to address the insured’s arguments on contra proferetem or the reasonable expectations doctrine.


FDCC member Wystan Ackerman of Robinson & Cole LLP briefed and argued this case for the insurer. 



Toxic Tort and Environmental Law


The summer of 2017 is shaping up to be a busy and exciting time for FDCC members in general and our section in particular.

2017 Annual Meeting:  Our much-anticipated 2017 FDCC Annual Meeting, which will take place in Switzerland from July 24 through July 29, promises to be one of our most memorable events ever. This year’s meeting will begin in the international business center of Zurich, where the FDCC and AIDA Switzerland will jointly present the Bridging the Gap Insurance Summit.  This dynamic half-day conference will be packed with international speakers and attendees who will address the complexities that insurance companies face in global litigation, especially in the North American and European markets.  Speakers will address the litigation risks that foreign corporations and their insurers face in the U.S. marketplace, and our European colleagues will discuss the new transatlantic data transfer rules that U.S. companies will have to confront in the EU and beyond.  The Zurich summit will conclude with a networking luncheon cruise on Lake Zurich.

For the remainder of the conference, we will head south to the exquisite Fairmont Le Montreux Palace, nestled on the banks of Lake Geneva and surrounded by breathtaking Alpine views.  Nearby, fine dining, outdoor activities, historical sites, vineyards and other great attractions beckon.  Montreux is just twenty minutes from the French border and less than an hour from the Italian border, offering a truly multicultural getaway.  Less than an hour’s drive is Mount Blanc, Europe’s tallest mountain, which towers above the fairytale village of Chamonix, France. Just an hour east of Montreux is the famed Matterhorn, which straddles the Swiss and Italian borders.  Ned and Sue Currie, Montreux Convention Chairs, have created a program of fun-packed and illuminating events in this incredible setting, including a day in Old Town Bern, a picturesque medieval village and a UNESCO World Heritage site.  Don’t miss the conference’s distinguished keynote speaker, human rights advocate Nontombi Tutu, daughter of international social rights and spiritual leader Desmond Tutu.

Todd and Debbie Roberts, Program and Registration Chairs, have put together five days of educational programs with the theme “Practicing with Swiss Precision.” As usual, our section and members will be active contributors to the program. The Energy Utilities Section and Toxic Tort and Environmental Law Section are partnering on a program titled “Walking the Tightrope: Balancing the Defense in a War on Multiple Fronts.” The presentation will analyze aspects of the aftermath of the gas pipeline explosion in San Bruno, CA on September 9, 2010, which resulted in 8 deaths, multiple injuries and millions of dollars in property damage. Pacific Gas & Electric (PG&E) was forced to defend hundreds of civil lawsuits and claims while undergoing intense inquiries by several regulatory agencies at the state and federal levels. Federal criminal charges were brought against PG&E in the Northern District of California, which ultimately resulted in the company’s conviction on several counts. The presentation will explore the difficulties inherent in fighting multiple battles on multiple fronts, arising from the same set of circumstances, where each action in any context is likely to affect the defense in others.  The speakers are G. Bruce Parkerson, Plauche Maselli Parkerson, LLP, New Orleans, LA; J. Richard Caldwell, Jr., Rumberger Kirk & Caldwell, Tampa, FL; and Michael  J. O’Connor, Associate General Manager and Chief Legal Executive Law & Human Resources, Salt River Project, Phoenix, AZ. 

At the plenary session on the first day of the meeting, I will join Chris McCall, Fotokite CEO and Kate Browne, Senior Vice President at SwissRe to present “Commercial Uses and Liability Exposures Associated with Drones.”  The audience will gain insight on the emerging uses, regulatory issues and potential exposures of the commercial use of drones.  Drone and autonomous vehicles (air, land and sea) are reshaping our society as well as our law practices.  Find out where potential exposures lie and how to develop and implement effective strategies to handle a potential new and emerging wave of litigation. 

I look forward to seeing many of you in Switzerland in July for an illuminating professional, educational and recreational experience.

Other section news: Keep your eye out for an article by our section members, Kurtis B. Reeg, Paul Knobbe and Lynn Lehnert in FDCC Insights entitled “Can Biomarkers and Genetics Help Predict the Future of Malignant Mesothelioma?”  The field of genetic markers as a defense in toxic tort litigation is intriguing.  This article addresses the ever-changing defenses to medical causation in the field of toxic torts.  We all must keep abreast of the science and medicine which effects toxic torts, and this paper will illuminate a potential path to a new defense. 

By this point, everyone has probably heard about our Section Leader Beth A. Bauer’s defense verdict in the City of Saint Louis Circuit Court in a talc case.  I am just starting to immerse myself in talc litigation and will be tapping Beth as a resource to get insight on her successful strategies.  I mention this as a reminder to everyone that colleagues in our section can be a great resource to each other and that we should share our collective knowledge.  Our section members are a strength to us all. 

The emerging area of toxic talc tort litigation seems to be moving at a fast pace with major developments occurring monthly.  For those about to just enter into this litigation, I highly recommend reviewing Judge Nelson C. Johnson’s decision in the Carl and Balderrama cases out of the Superior Court of New Jersey, Atlantic County. This decision provides a good primer on general and specific medical causation issues in these types of cases.  I also recommend that you become familiar with the science and the medicine that is set forth in this decision, in which two of the plaintiffs’ main experts, Dr. Graham A. Colditz and Dr. Daniel W. Cramer were excluded from testifying and the case was ultimately dismissed.  As a side note, Judge Nelson is also the author of the book that was the basis of the popular HBO television series, Boardwalk Empire.  New Jersey also happens to be the venue for the talc MDL litigation, which is being administered by Hon. Freda L. Wolfson, U.S.D.J. and Hon. Louis H. Goodman, U.S.M.J.

Mark your calendars for the Corporate Counsel Symposium, which will be held in Philadelphia, September 17 through September 19, 2017, and the I3, which will be in New York November 9 through November 10, 2017.  Both of these events will be amazing educational and networking opportunities for our members.  The Corporate Counsel Symposium in Philadelphia will talk about the Trump administration’s effect on general counsel’s role in the regulatory and compliance environment; trade and international relations; crisis management; and best practices for in-house counsel in effectively marshaling and managing their in-house and outside legal teams in a global economy.  As always, it will address some of the hot issues and trends that in-house counsel confront on a daily basis and the best practices on how to address them.

As always, our section is looking for members to participate and volunteer in FDCC activities, and there is always a plethora of opportunities to do so.  We welcome your suggestions on ways of making our group a shining gem within the FDCC, and on giving you each an opportunity to shine.  You can have that opportunity at the 2018 FDCC Winter Meeting in Amelia Island, Florida, a popular return location that has proven to be an oasis in the heart of winter for our members.  The section is seeking ideas for presentation topics and papers, and you are encouraged to participate and get involved.  If you are interested, please contact our Section Leader, Beth A. Bauer (

This truly looks to be a fun and enriching summer for us, leading into an amazing fall.  I look forward to seeing you at upcoming FDCC events, maybe lakeside in Montreux, or in a Swiss vineyard while we share a glass of wine.





Drone Registration—What's Next?

By Terrence L. Graves


The United States Circuit Court of Appeals for the District of Columbia recently upheld a verdict on behalf of a drone enthusiast that found that the Federal Aviation Administration's (FAA) rule requiring that individual recreational users of drones register the unmanned aerial vehicles (UAV) and pay a $5 fee.  The registration was good for 3 years and would need to be renewed as long as the UAV was still in use.  Failure to register could result in fines and/or jail sentences.


The FAA's registration rule was initially implemented in December 2015.  The D.C. Circuit Court of Appeals found that the rule in question conflicted with an unambiguous policy first expressed in the FAA Modernization and Reform Act of 2012.  Congress noted in that legislation that the FAA "may not promulgate any rule or regulation regarding model aircraft."  The D.C. Circuit found that drones operated for recreational purposes were "model aircraft" and that the registration rule was in fact a regulation of "model aircraft". 


This ruling does not apply to the operators of UAV's that are operated in the commercial sphere.  The wording in the opinion that states that it applies only to registration of any UAV's  flown while keeping the UAV within actual sight of the operator and if the UAV is also "flown for hobby or recreational purposes" appears to make it inapplicable to most commercial applications of UAVs. 


This leads to the natural question of what's next.  The answer to that question is not really clear.  Congress can amend it's 2012 legislation in such a way that it applies to "model aircraft".  In the alternative, it could stand pat and allow the D.C. Circuit's ruling to stand and apply to regulation of any "model aircraft" moving forward.  I anticipate that there will be a lot of involvement by interested industry groups that will seek to craft legislation that will benefit the various players in this game, including hobbyists, commercial operators, and those responsible for national security. 


If you are a client and you are reading this and operate or plan to operate UAVs for commercial purposes, then you should make sure that your UAVs are registered with the FAA.  If you are a hobbyist, like me, then you don't have to worry about registering your UAV or re-registering it when your current registration expires, unless of course Congress steps in or the U.S. Supreme Court is asked to weigh in.  If you are counsel to commercial operators of UAVs, be prepared to advise your clients about the ins and outs of this ruling.



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2019 FDCC Winter Meeting - Austin, Texas

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