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The Final Pieces of the Trigger and Allocation Puzzle in New York
With the flurry of major insurance decisions pertaining to long-tail tort claims in the early 1990s, practitioners appear to take New York law largely for granted when assessing trigger and allocation issues. True enough, the basics are now “well settled”: an “injury in fact” trigger (American Home Products Corp. v. Liberty Mut. Ins. Co., 748 F.2d 760 (2nd Cir. 1984) (“AHP“)); an emphatic rejection of the so-called “all sums” approach to allocation (Consolidated Edison Co. v. Allstate Ins. Co., 746 N.Y.S.2d 622 (N.Y. 2002)); and adoption of a pro rata methodology, (Stonewall Insurance Company v. Asbestos Claims Management Corporation 73 F.3d 1178, 1192 n.5 (2nd Cir. 1995) (citing Owens-Illinois v. United Ins. Co., 138 N.J. 437 (N.J. 1994)); Con Ed, 746 N.Y.S.2d 622). All that said, we expect to see highly significant elaborations or refinements of the real world meaning of “injury in fact,” and these open issues may have consequences for a wide range of major claims.
Injury in Fact and Allocation in Fact: From AHP to Con Ed
“Injury in fact” is an approach to trigger that has always stood outside the methodological spectrum from “unitary triggers” like “manifestation” on one end and “continuous triggers” on the other. Injury in fact is agnostic about that spectrum as a matter of law. It permits the facts to govern ' facts pertaining to exposure, epidemiology, symptomatology ' rather than some inflexible judicial rule. Thus, “injury in fact” was born with a problem: what is “injury?”
Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
The Article 8 Opt In
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
Strategy vs. Tactics: Two Sides of a Difficult Coin
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.
Legal Possession: What Does It Mean?
Possession of real property is a matter of physical fact. Having the right or legal entitlement to possession is not "possession," possession is "the fact of having or holding property in one's power." That power means having physical dominion and control over the property.
Removing Restrictive Covenants In New York
In Rockwell v. Despart, the New York Supreme Court, Third Department, recently revisited a recurring question: When may a landowner seek judicial removal of a covenant restricting use of her land?