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Many property insurance policies contain or incorporate one-year statute of limitations provisions. Such provisions typically provide that 'a claim or suit brought pursuant to the policy must be brought within 12 months of the date on which the direct physical loss or damage occurred.' These contractual limitations provisions may adversely impact the ability of a policyholder to obtain a recovery for a loss. Depending on the type of loss suffered, 12 months may be an insufficient period of time to investigate the loss and to resolve any coverage issues that might arise. In the case of a sizeable loss, it is not unusual for the insurer's appraisers and/or experts to take many months to investigate and/or to make a coverage determination. As such, unless a policyholder is vigilant about resolving the claim within 12 months or tolling the limitations period, the policyholder may face an argument that the claim is barred by the statute of limitations.
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In the fall of 2006, the Second Circuit ruled on appeals from the jury trials in two huge insurance cases: <i>SR International Business Insurance Co., Ltd. v. World Trade Center Properties, LLC</i>, 467 F.3d 107 (2d Cir. 2006) ('<i>Swiss Re</i>'), and <i>Olin Corp. v. Certain Underwriters at Lloyd's London</i>, 468 F.3d 120 (2d Cir. 2006). Both cases went to a jury verdict in 2005 against fairly overwhelming odds. Commentators have widely observed that jury trials are a disappearing breed. In 2002, only 1.8% of civil cases in federal courts and only 0.6% of civil cases in state courts went to jury trial. <i>See</i> Marc Galanter, The Vanishing Trial: An Examination of Trials and Related Matters in Federal and State Courts, <i>J. Empirical Legal Stud.</i> 1 (3), 459-570 (2004); Brian J. Ostrom, et al., Examining Trial Trends in State Courts: 1976'2002, <i>J. Empirical Legal Stud.</i> 1 (3), 755-782 (2004). Moreover, both cases define high stakes, mega-insurance litigation: complex fact patterns, major corporate policyholders and insurers, billions of dollars in insurance coverage, and disputes closely watched by the press and public. Given this context, it is fairly extraordinary that the parties in <i>Swiss Re</i> and <i>Olin</i> let a jury of 'peers' determine the outcome of their disputes. The trial proceedings and appellate review in these cases are worthy of study for insurance litigators hoping or planning for a jury trial of their own.
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In the recent decision of <i>First Niagara Ins. Brokers, Inc. v. First Niagara Fin. Group, Inc.</i> (Fed. Cir. 2007) (the 'Federal Circuit's decision'), the Federal Circuit overturned a ruling by the Trademark Trial and Appeal Board (the 'Board') dismissing an opposition by First Niagara Insurance Brokers ('FN-Canada'), a Canadian company, to registration of 'First Niagara' and related marks by First Niagara Financial Group ('FN-US'), a U.S. company. In rendering its holding, the Federal Circuit declared that, in some cases, what would seem to be purely foreign trademark activity may establish superior trademark rights in the United States.
Reverse engineering brings to mind one main question for the intellectual property practitioner: Is it legal? By looking at a few cases dealing with reverse engineering and intellectual property regimes, it is discovered that not only is reverse engineering legal, but it is a means of maintaining competition that is fair and healthy for the marketplace.
The use of investigations to uncover and evaluate potential infringement and unfair competition claims can be an extremely effective weapon for any trademark owner. Usually, a key to successful trademark investigations rests in having the mark owner's investigator pose as an ordinary consumer ' essentially misrepresenting his or her true identity or purpose to the potential infringer. This practice of attempting to gain information through the arguable use of deception or invented scenario is now commonly referred to as 'pretexting' and has led to controversy in the general corporate context. This article concludes that properly conducted and supervised pretext investigations remain in harmony with both the relevant case law and the policy goals of trademark and unfair competition law.
Law firm associate bonuses generally were flat in 2006 compared with the year before. Few would argue that year-end perks up to $65,000 for senior associates were skimpy, but with business brisk and law firms scrambling to attract and keep good associate help, the question is: 'Why?'
Features
On March 22'23 at the Washington Park Hyatt Hotel, Joel A. Rose & Associates, Inc., Management Consultants to Law Offices, will present its 20th Annual Conference & Workshops on Law Firm Management & Economics.