This document is a memorandum in support of a motion in limine regarding the effect of Senate Bill 814 on the parties' agreement concerning defense counsel. It argues that SB 814's independent counsel provisions do not apply in this case for two reasons: 1) The insurance policies give Continental the right to control the defense, triggering the savings clause in SB 814, and 2) The parties previously agreed that Bingham would serve as defense counsel within the traditional tripartite relationship, not as independent counsel, so applying SB 814 would contradict this existing agreement. The memorandum also contends that even if SB 814 did apply, it does not allow Schnitzer to select counsel or pay out-of-forum rates that exceed what is
This letter requests a pre-motion conference regarding an anticipated motion to dismiss an amended complaint filed against Digicel Haiti. It summarizes that the amended complaint should be dismissed for failing to meet pleading standards under FRCP 8(a), 9(b), and 12(b)(6), and based on the act-of-state doctrine and forum non conveniens. Specifically, the letter argues that the amended complaint does not provide a short, plain statement of claims, engages in impermissible group pleading, lacks specific allegations of fraud, and requires invalidating acts of the Haitian government.
This case involves a dispute over entitlement to a partial refund of a special assessment paid into a fund to repair defects in a condominium building. The previous owners, who paid the special assessment, sold the property to the current owners. After the repairs were completed, there was a refund remaining in the fund. Both the previous and current owners claimed entitlement to the refund. The court found that the sale contract between the parties implicitly allocated the risk of any refund or future assessment to the purchasers. As such, the court ruled that the current owners were entitled to the refund as there was a valid contract between the parties providing a juristic reason for the enrichment.
This document is a bench ruling from a bankruptcy judge on a motion to compel arbitration related to a debtor's cash collateral motion. The judge analyzes applicable case law and determines that:
1) Whether a debtor has authority to use cash collateral is fundamentally a bankruptcy issue, not a contractual dispute.
2) The parties did not agree to arbitrate issues relating to a debtor's rights under the Bankruptcy Code, as those rights were created by Congress and differ from pre-bankruptcy contractual rights.
3) Therefore, the motion to compel arbitration of the debtor's cash collateral motion is denied, as use of cash collateral is a core bankruptcy issue not subject to the arbitration agreement.
Fall 2010 open memo assignment no doubt v. activision right of publicity cali...Lyn Goering
This document is a court order granting the plaintiff's application to remand a case back to state court from federal court. The plaintiff had filed a complaint against the defendant in state court for claims related to the use of the plaintiff's likeness in a video game. The defendant removed the case to federal court, arguing the claims were preempted by federal copyright law. The court analyzed the relevant legal standards for removal and copyright preemption. Applying a two-part test, the court determined the plaintiff's claims were not preempted as they involved misappropriation of the plaintiff's name and likeness beyond what was agreed to, rather than contesting the defendant's copyright. The court therefore granted the application to remand the case back to
King county-superior-court-order-on-rha-v-city-of-seattle-22421Roger Valdez
This order denies the plaintiffs' motion for summary judgment and grants the defendant's cross-motion for summary judgment. It finds that the three Seattle ordinances establishing defenses to eviction due to financial hardship during COVID-19 do not conflict with state law and are therefore not preempted. While the ordinance provision staying late fees is preempted, the rest can be harmonized with state eviction statutes as establishing substantive defenses rather than conflicting with the statutes' procedural framework. Controlling Washington precedent has established that the state eviction laws provide only procedures, not substantive rights, so local governments can permissibly provide additional defenses.
This document is a report and recommendation from a magistrate judge regarding a motion to dismiss for lack of personal jurisdiction filed by the defendant, Info Directions, Inc. The plaintiff, Transverse LLC, alleges that Info Directions interfered with its contract and misappropriated its trade secrets related to billing software. The magistrate judge provides background on the parties and claims, summarizes the legal standards for personal jurisdiction, and will make a recommendation to the district court judge on the motion to dismiss.
The decision by the U.S. District Court for the Southern District of Ohio. EQT had leased land from Alex Cooper, et al with an initial five-year term. The lease provided for a five-year extension. It also required EQT to drill at least one well on/under the property during the first five-year lease. EQT failed to drill a well in the first term but instead elected to extend the lease for an additional five years. The federal judge found that EQT has the right to extend the lease even if they didn't drill a well during the first term.
Doc723 motion to vacate claims & stay further proceedingmalp2009
The Chapter 11 Trustee filed a motion to vacate claims orders and stay further proceedings related to two claims filed against the bankruptcy estate. The claims, totaling $275,000 each, were based on promissory notes related to the debtor's purchase of a company called Premier. After the claims orders were entered allowing the claims in part, an indictment was filed describing how organized crime figures took control of the debtor and looted it for their personal benefit through fraudulent transactions like the one involving Premier. The indictment revealed that one of the claimants, Learned, was controlled by one of the crime figures and was used to defraud the debtor and launder money as part of the scheme.
This letter requests a pre-motion conference regarding an anticipated motion to dismiss an amended complaint filed against Digicel Haiti. It summarizes that the amended complaint should be dismissed for failing to meet pleading standards under FRCP 8(a), 9(b), and 12(b)(6), and based on the act-of-state doctrine and forum non conveniens. Specifically, the letter argues that the amended complaint does not provide a short, plain statement of claims, engages in impermissible group pleading, lacks specific allegations of fraud, and requires invalidating acts of the Haitian government.
This case involves a dispute over entitlement to a partial refund of a special assessment paid into a fund to repair defects in a condominium building. The previous owners, who paid the special assessment, sold the property to the current owners. After the repairs were completed, there was a refund remaining in the fund. Both the previous and current owners claimed entitlement to the refund. The court found that the sale contract between the parties implicitly allocated the risk of any refund or future assessment to the purchasers. As such, the court ruled that the current owners were entitled to the refund as there was a valid contract between the parties providing a juristic reason for the enrichment.
This document is a bench ruling from a bankruptcy judge on a motion to compel arbitration related to a debtor's cash collateral motion. The judge analyzes applicable case law and determines that:
1) Whether a debtor has authority to use cash collateral is fundamentally a bankruptcy issue, not a contractual dispute.
2) The parties did not agree to arbitrate issues relating to a debtor's rights under the Bankruptcy Code, as those rights were created by Congress and differ from pre-bankruptcy contractual rights.
3) Therefore, the motion to compel arbitration of the debtor's cash collateral motion is denied, as use of cash collateral is a core bankruptcy issue not subject to the arbitration agreement.
Fall 2010 open memo assignment no doubt v. activision right of publicity cali...Lyn Goering
This document is a court order granting the plaintiff's application to remand a case back to state court from federal court. The plaintiff had filed a complaint against the defendant in state court for claims related to the use of the plaintiff's likeness in a video game. The defendant removed the case to federal court, arguing the claims were preempted by federal copyright law. The court analyzed the relevant legal standards for removal and copyright preemption. Applying a two-part test, the court determined the plaintiff's claims were not preempted as they involved misappropriation of the plaintiff's name and likeness beyond what was agreed to, rather than contesting the defendant's copyright. The court therefore granted the application to remand the case back to
King county-superior-court-order-on-rha-v-city-of-seattle-22421Roger Valdez
This order denies the plaintiffs' motion for summary judgment and grants the defendant's cross-motion for summary judgment. It finds that the three Seattle ordinances establishing defenses to eviction due to financial hardship during COVID-19 do not conflict with state law and are therefore not preempted. While the ordinance provision staying late fees is preempted, the rest can be harmonized with state eviction statutes as establishing substantive defenses rather than conflicting with the statutes' procedural framework. Controlling Washington precedent has established that the state eviction laws provide only procedures, not substantive rights, so local governments can permissibly provide additional defenses.
This document is a report and recommendation from a magistrate judge regarding a motion to dismiss for lack of personal jurisdiction filed by the defendant, Info Directions, Inc. The plaintiff, Transverse LLC, alleges that Info Directions interfered with its contract and misappropriated its trade secrets related to billing software. The magistrate judge provides background on the parties and claims, summarizes the legal standards for personal jurisdiction, and will make a recommendation to the district court judge on the motion to dismiss.
The decision by the U.S. District Court for the Southern District of Ohio. EQT had leased land from Alex Cooper, et al with an initial five-year term. The lease provided for a five-year extension. It also required EQT to drill at least one well on/under the property during the first five-year lease. EQT failed to drill a well in the first term but instead elected to extend the lease for an additional five years. The federal judge found that EQT has the right to extend the lease even if they didn't drill a well during the first term.
Doc723 motion to vacate claims & stay further proceedingmalp2009
The Chapter 11 Trustee filed a motion to vacate claims orders and stay further proceedings related to two claims filed against the bankruptcy estate. The claims, totaling $275,000 each, were based on promissory notes related to the debtor's purchase of a company called Premier. After the claims orders were entered allowing the claims in part, an indictment was filed describing how organized crime figures took control of the debtor and looted it for their personal benefit through fraudulent transactions like the one involving Premier. The indictment revealed that one of the claimants, Learned, was controlled by one of the crime figures and was used to defraud the debtor and launder money as part of the scheme.
This document is an opinion and order from a court case between Ash Grove Cement Company and several insurance companies regarding insurance coverage. It discusses that Ash Grove received a request for information from the EPA under CERCLA regarding a Superfund site, and whether this triggers the insurers' duty to defend. The court provides background on the Superfund site, the insurance policies, and communications between the parties. It will determine whether an EPA information request constitutes a "suit" that triggers the duty to defend under the terms of the insurance policies.
The plaintiff Southeastern Pennsylvania Transportation Authority (SEPTA) filed a class action lawsuit against The Bank of New York Mellon Corporation (BNY Mellon) on behalf of itself and other similarly situated clients of BNY Mellon. The lawsuit alleges that from at least 2000, BNY Mellon manipulated foreign currency exchange transactions to maximize profits for itself by charging inflated exchange rates when clients bought foreign currency and deflated rates when clients sold foreign currency. The lawsuit seeks to recover unlawful profits obtained through these practices and obtain injunctive relief. Jurisdiction and venue are proper as BNY Mellon is headquartered in New York.
This document provides instructions for a legal research and writing assignment requiring the student to locate and summarize various legal authorities, including federal and state statutes and case law. It includes directions to find and summarize the content of 28 U.S.C. §§ 1331, 1332, and 1333, and to locate two federal cases and two state cases, summarizing the main issue in each case. The document also provides partial citations and requires the student to complete them. Finally, it instructs the student to locate Miranda v. Arizona in an unofficial reporter and quote portions of the opinion.
Doc1037 robert oneil paul ballard_todd hickman_seeking approval_settlement & ...malp2009
This document is a Trustee's Motion to Approve Compromise and Settlement with Defendants Robert O'Neal, Paul Ballard and Todd Hickman in an Adversary proceeding. The Trustee is seeking the court's approval of a settlement agreement between the Trustee and the Defendants that would allow portions of the Defendants' claims against the Debtor's estate and resolve all claims between the parties. Key terms of the settlement include allowing 75% of O'Neal's claim, 60% of Ballard's claim, and 60% of Hickman's claim. The Trustee believes the settlement is in the best interest of the estate to avoid costly and uncertain litigation.
Arbitration law update, Darren-Chaker, written by leading law firm, citing case law, statute and other legal resources about recent arbitration developments.
This document is a judgment from the High Court of Justice of England and Wales regarding a claim brought by PJSC Commercial Bank PrivatBank against eight defendants for approximately US$1.91 billion plus interest for an alleged fraud scheme. The judgment addresses issues including whether the bank has established a good arguable case against the defendants; jurisdiction over certain defendants; potential stays of proceedings due to related litigation in Ukraine; and forum non conveniens regarding some defendants. It provides background on the parties, the bank's claims, and the various applications before the court.
This order grants the defendant's motion for summary judgment in a housing discrimination lawsuit. The plaintiff, an African American man, applied to transfer to a new housing development but his application was denied due to alleged inability to verify his income met minimum requirements. However, the defendant failed to produce sufficient evidence that the plaintiff's application was denied for legitimate, non-discriminatory reasons or that the plaintiff's claim of pretextual discrimination lacked merit. Therefore, summary judgment was granted in favor of the defendant.
FLSA Litigation - Federal Court - MDFL Tampa - Fee Entitlement & MootnessPollard PLLC
Lawyers in FLSA cases and particularly on the defense side should view this as a cautionary tale: Tendering a check for the wages at issue does not moot the plaintiff's claim. FLSA claims are live until there is a judgment or a settlement approved by the court. And plaintiffs DO get their fees for litigating over the issue of attorneys' fees.
Simply put: A legitimate FLSA case, a skilled attorney on the plaintiff side, and defense counsel who do not understand the applicable legal framework make for disastrous results.
The document discusses whether the High Court ruling in Kirk v Industrial Relations Commission (NSW), which prevented state legislatures from altering the defining characteristics of state supreme courts, also applies to territory supreme courts. It argues that the ruling does not directly apply to territories because: 1) Territory supreme courts are not mentioned in the constitution and did not exist at federation, so they have no defining characteristics enshrined in the constitution. 2) Territory courts are created under the territories power in s122, not under Ch III, so the same restrictions do not apply. However, it suggests a modified version of the Kirk reasoning could prevent territory legislatures from altering any supervisory powers territory supreme courts had when first established.
The petitioning creditors filed a motion requesting permission to file redacted versions of confidential pleadings and exhibits under seal in bankruptcy proceedings against Allied Systems Holdings, Inc. and Allied Systems, Ltd. The pleadings and exhibits contain confidential commercial information from credit agreements. The motion argues that public disclosure of this confidential information would violate the credit agreements.
1) Plaintiff Global Merchant filed a complaint and application for pre-arbitral attachment and stay of proceedings pending arbitration against Defendant Agri Feed for breach of contract and fraud related to the sale and delivery of hay.
2) The contract between the parties contained an arbitration clause requiring the use of CIETAC for dispute resolution. It is alleged that Defendant Agri Feed forged laboratory test results to receive payment under the letter of credit for substandard hay.
3) Plaintiff argues that California law allows for pre-arbitral attachment to prevent assets from being hidden or dissipated during arbitration proceedings. The remaining issue is whether CIETAC rules providing temporary relief would supersede California law.
This document is an order from a United States District Court regarding motions to dismiss filed by defendants Darren Chaker and Nicole Chaker in a civil RICO lawsuit brought by plaintiffs Scott McMillan and The McMillan Law Firm. The order summarizes the allegations in the plaintiffs' amended complaint, which claims the defendants engaged in a pattern of extortion, harassment, and other unlawful acts as part of a RICO enterprise. The order analyzes the defendants' motions to dismiss under Rule 12(b)(6), considering whether the plaintiffs have adequately alleged predicate acts of racketeering, cognizable damages, and other elements of RICO and state law claims.
This document provides notice of Patriot Coal Corporation's motion seeking court approval to conduct rights offerings as part of its chapter 11 reorganization plan. Specifically, the motion seeks authorization to enter into a backstop purchase agreement with certain funds to ensure sufficient proceeds are raised in the rights offerings. The rights offerings will allow eligible creditors to purchase new senior secured notes and warrants. The motion also seeks approval of the proposed rights offerings procedures. Objections to the motion are due by October 30, with a hearing scheduled for November 6.
Omni Hauling Services Inc. et. al. versus Bernardo Bon et. al.. G.R. No. 1993...PoL Sangalang
Omni Hauling Services Inc. et. al. versus Bernardo Bon et. al.. G.R. No. 199388. September 3, 2014. Supreme Court of the Philippines. Uploaded by Atty. Apollo X.C.S. Sangalang in connection with his lecture on "The Essentials of HR and Labor Law" on October 15, 2014 at the Asian Institute of Management, Makati City, Philippines.
FORDHAM #2 of 3; Fordham v Dewsash PL t.as SP&W.Hobson [2012] NSWDC 109Alec Rendell [NBPR-2]
This document summarizes a District Court appeal from a decision of the Consumer, Trader and Tenancy Tribunal regarding a building dispute. The Tribunal found that there was an agreement for the plaintiff to pay $36,000 upon completion of the slab, but the District Court found there was no evidence to support this finding. The District Court allowed the appeal, set aside the Tribunal's orders, and remitted the matter to the Tribunal for a rehearing in accordance with the District Court's reasons.
A court case in which a landowner in Ohio sued to cancel a lease because the driller and the company that owns the lease have not paid any royalties since drilling. The Fifth Appellate District Court of Ohio found that because a specific provision in the original lease does not provide for cancellation due to non-payment of royalties, the landowners will have to continue to get screwed.
Mark swhwartz gets_40k_for_client_vs_peter_mallonihatehassard
This order approves the settlement of a personal injury claim brought on behalf of a minor, Joseph Michael Hernandez. It approves attorney fees of $10,096, reimbursement of medical expenses of $11,279, and a total settlement of $41,667. The remaining $30,291 will be deposited in a blocked account for the minor until he turns 18. The guardian is authorized to sign settlement documents and a full release of claims.
Libor Lawsuit - In Re _ LIBOR Antitrust Litigation vs. Bank of America, JPMor...Umesh Heendeniya
This document discusses several lawsuits brought against banks for their alleged manipulation of the London Interbank Offered Rate (LIBOR) between August 2007 and May 2010. LIBOR is a benchmark interest rate compiled by the British Bankers' Association based on rates submitted by major banks and used globally in contracts, derivatives, and loans worth trillions of dollars. The lawsuits allege that the banks conspired to artificially suppress the LIBOR rate to portray themselves as financially healthier and pay lower interest rates on LIBOR-linked financial products. The document provides background on LIBOR and outlines the plaintiffs' allegations while noting factual disputes remain. It then evaluates the defendants' motions to dismiss aspects of the plaintiffs' antitrust, RICO, and
The Court of Appeals affirms the lower court's granting of summary judgment to CitiMortgage in a foreclosure action. Maria Potvin argued she was entitled to relief under the Home Affordable Modification Program and that foreclosure was inequitable, but the court found the mediation was non-binding and she did not sign the modification agreement or make payments. The court also found the affidavit from CitiMortgage in support of summary judgment met evidentiary rules for records of regularly conducted business activities. Therefore, the appeals court denied all of Potvin's assignments of error and upheld the foreclosure.
Court's duty to ascertain jurisdictionCameron Ford
The court has a duty to ascertain its own jurisdiction, even if the parties do not raise any objections. According to past cases, the court's "first duty" is to determine if it has jurisdiction over the matter before it. This duty exists whether or not a party challenges jurisdiction - the court must still consider the question. Jurisdiction cannot be conferred by party consent alone. The court is responsible for being satisfied that the conditions for its jurisdiction have been met.
Based on the experience of conducting interviews in four different sectors in Pakistan, New York, Dubai and Kabul, there is a strong need to develop skills of professionals on writing resumes and giving effective resume.
This Presentation is designed by the Trainer, Mr Annan Waffi Sohail Qureshi based on his Global HR experience with four different sectors.
The document provides tips for writing effective resumes and cover letters, and preparing for interviews. It discusses highlighting achievements and skills in resumes, researching companies for cover letters and interviews, and having examples prepared to answer behavioral questions in interviews. Resumes should focus on skills and accomplishments rather than just job descriptions. Cover letters should convey interest in the company and position while interviews require researching the employer and practicing common questions.
This document is an opinion and order from a court case between Ash Grove Cement Company and several insurance companies regarding insurance coverage. It discusses that Ash Grove received a request for information from the EPA under CERCLA regarding a Superfund site, and whether this triggers the insurers' duty to defend. The court provides background on the Superfund site, the insurance policies, and communications between the parties. It will determine whether an EPA information request constitutes a "suit" that triggers the duty to defend under the terms of the insurance policies.
The plaintiff Southeastern Pennsylvania Transportation Authority (SEPTA) filed a class action lawsuit against The Bank of New York Mellon Corporation (BNY Mellon) on behalf of itself and other similarly situated clients of BNY Mellon. The lawsuit alleges that from at least 2000, BNY Mellon manipulated foreign currency exchange transactions to maximize profits for itself by charging inflated exchange rates when clients bought foreign currency and deflated rates when clients sold foreign currency. The lawsuit seeks to recover unlawful profits obtained through these practices and obtain injunctive relief. Jurisdiction and venue are proper as BNY Mellon is headquartered in New York.
This document provides instructions for a legal research and writing assignment requiring the student to locate and summarize various legal authorities, including federal and state statutes and case law. It includes directions to find and summarize the content of 28 U.S.C. §§ 1331, 1332, and 1333, and to locate two federal cases and two state cases, summarizing the main issue in each case. The document also provides partial citations and requires the student to complete them. Finally, it instructs the student to locate Miranda v. Arizona in an unofficial reporter and quote portions of the opinion.
Doc1037 robert oneil paul ballard_todd hickman_seeking approval_settlement & ...malp2009
This document is a Trustee's Motion to Approve Compromise and Settlement with Defendants Robert O'Neal, Paul Ballard and Todd Hickman in an Adversary proceeding. The Trustee is seeking the court's approval of a settlement agreement between the Trustee and the Defendants that would allow portions of the Defendants' claims against the Debtor's estate and resolve all claims between the parties. Key terms of the settlement include allowing 75% of O'Neal's claim, 60% of Ballard's claim, and 60% of Hickman's claim. The Trustee believes the settlement is in the best interest of the estate to avoid costly and uncertain litigation.
Arbitration law update, Darren-Chaker, written by leading law firm, citing case law, statute and other legal resources about recent arbitration developments.
This document is a judgment from the High Court of Justice of England and Wales regarding a claim brought by PJSC Commercial Bank PrivatBank against eight defendants for approximately US$1.91 billion plus interest for an alleged fraud scheme. The judgment addresses issues including whether the bank has established a good arguable case against the defendants; jurisdiction over certain defendants; potential stays of proceedings due to related litigation in Ukraine; and forum non conveniens regarding some defendants. It provides background on the parties, the bank's claims, and the various applications before the court.
This order grants the defendant's motion for summary judgment in a housing discrimination lawsuit. The plaintiff, an African American man, applied to transfer to a new housing development but his application was denied due to alleged inability to verify his income met minimum requirements. However, the defendant failed to produce sufficient evidence that the plaintiff's application was denied for legitimate, non-discriminatory reasons or that the plaintiff's claim of pretextual discrimination lacked merit. Therefore, summary judgment was granted in favor of the defendant.
FLSA Litigation - Federal Court - MDFL Tampa - Fee Entitlement & MootnessPollard PLLC
Lawyers in FLSA cases and particularly on the defense side should view this as a cautionary tale: Tendering a check for the wages at issue does not moot the plaintiff's claim. FLSA claims are live until there is a judgment or a settlement approved by the court. And plaintiffs DO get their fees for litigating over the issue of attorneys' fees.
Simply put: A legitimate FLSA case, a skilled attorney on the plaintiff side, and defense counsel who do not understand the applicable legal framework make for disastrous results.
The document discusses whether the High Court ruling in Kirk v Industrial Relations Commission (NSW), which prevented state legislatures from altering the defining characteristics of state supreme courts, also applies to territory supreme courts. It argues that the ruling does not directly apply to territories because: 1) Territory supreme courts are not mentioned in the constitution and did not exist at federation, so they have no defining characteristics enshrined in the constitution. 2) Territory courts are created under the territories power in s122, not under Ch III, so the same restrictions do not apply. However, it suggests a modified version of the Kirk reasoning could prevent territory legislatures from altering any supervisory powers territory supreme courts had when first established.
The petitioning creditors filed a motion requesting permission to file redacted versions of confidential pleadings and exhibits under seal in bankruptcy proceedings against Allied Systems Holdings, Inc. and Allied Systems, Ltd. The pleadings and exhibits contain confidential commercial information from credit agreements. The motion argues that public disclosure of this confidential information would violate the credit agreements.
1) Plaintiff Global Merchant filed a complaint and application for pre-arbitral attachment and stay of proceedings pending arbitration against Defendant Agri Feed for breach of contract and fraud related to the sale and delivery of hay.
2) The contract between the parties contained an arbitration clause requiring the use of CIETAC for dispute resolution. It is alleged that Defendant Agri Feed forged laboratory test results to receive payment under the letter of credit for substandard hay.
3) Plaintiff argues that California law allows for pre-arbitral attachment to prevent assets from being hidden or dissipated during arbitration proceedings. The remaining issue is whether CIETAC rules providing temporary relief would supersede California law.
This document is an order from a United States District Court regarding motions to dismiss filed by defendants Darren Chaker and Nicole Chaker in a civil RICO lawsuit brought by plaintiffs Scott McMillan and The McMillan Law Firm. The order summarizes the allegations in the plaintiffs' amended complaint, which claims the defendants engaged in a pattern of extortion, harassment, and other unlawful acts as part of a RICO enterprise. The order analyzes the defendants' motions to dismiss under Rule 12(b)(6), considering whether the plaintiffs have adequately alleged predicate acts of racketeering, cognizable damages, and other elements of RICO and state law claims.
This document provides notice of Patriot Coal Corporation's motion seeking court approval to conduct rights offerings as part of its chapter 11 reorganization plan. Specifically, the motion seeks authorization to enter into a backstop purchase agreement with certain funds to ensure sufficient proceeds are raised in the rights offerings. The rights offerings will allow eligible creditors to purchase new senior secured notes and warrants. The motion also seeks approval of the proposed rights offerings procedures. Objections to the motion are due by October 30, with a hearing scheduled for November 6.
Omni Hauling Services Inc. et. al. versus Bernardo Bon et. al.. G.R. No. 1993...PoL Sangalang
Omni Hauling Services Inc. et. al. versus Bernardo Bon et. al.. G.R. No. 199388. September 3, 2014. Supreme Court of the Philippines. Uploaded by Atty. Apollo X.C.S. Sangalang in connection with his lecture on "The Essentials of HR and Labor Law" on October 15, 2014 at the Asian Institute of Management, Makati City, Philippines.
FORDHAM #2 of 3; Fordham v Dewsash PL t.as SP&W.Hobson [2012] NSWDC 109Alec Rendell [NBPR-2]
This document summarizes a District Court appeal from a decision of the Consumer, Trader and Tenancy Tribunal regarding a building dispute. The Tribunal found that there was an agreement for the plaintiff to pay $36,000 upon completion of the slab, but the District Court found there was no evidence to support this finding. The District Court allowed the appeal, set aside the Tribunal's orders, and remitted the matter to the Tribunal for a rehearing in accordance with the District Court's reasons.
A court case in which a landowner in Ohio sued to cancel a lease because the driller and the company that owns the lease have not paid any royalties since drilling. The Fifth Appellate District Court of Ohio found that because a specific provision in the original lease does not provide for cancellation due to non-payment of royalties, the landowners will have to continue to get screwed.
Mark swhwartz gets_40k_for_client_vs_peter_mallonihatehassard
This order approves the settlement of a personal injury claim brought on behalf of a minor, Joseph Michael Hernandez. It approves attorney fees of $10,096, reimbursement of medical expenses of $11,279, and a total settlement of $41,667. The remaining $30,291 will be deposited in a blocked account for the minor until he turns 18. The guardian is authorized to sign settlement documents and a full release of claims.
Libor Lawsuit - In Re _ LIBOR Antitrust Litigation vs. Bank of America, JPMor...Umesh Heendeniya
This document discusses several lawsuits brought against banks for their alleged manipulation of the London Interbank Offered Rate (LIBOR) between August 2007 and May 2010. LIBOR is a benchmark interest rate compiled by the British Bankers' Association based on rates submitted by major banks and used globally in contracts, derivatives, and loans worth trillions of dollars. The lawsuits allege that the banks conspired to artificially suppress the LIBOR rate to portray themselves as financially healthier and pay lower interest rates on LIBOR-linked financial products. The document provides background on LIBOR and outlines the plaintiffs' allegations while noting factual disputes remain. It then evaluates the defendants' motions to dismiss aspects of the plaintiffs' antitrust, RICO, and
The Court of Appeals affirms the lower court's granting of summary judgment to CitiMortgage in a foreclosure action. Maria Potvin argued she was entitled to relief under the Home Affordable Modification Program and that foreclosure was inequitable, but the court found the mediation was non-binding and she did not sign the modification agreement or make payments. The court also found the affidavit from CitiMortgage in support of summary judgment met evidentiary rules for records of regularly conducted business activities. Therefore, the appeals court denied all of Potvin's assignments of error and upheld the foreclosure.
Court's duty to ascertain jurisdictionCameron Ford
The court has a duty to ascertain its own jurisdiction, even if the parties do not raise any objections. According to past cases, the court's "first duty" is to determine if it has jurisdiction over the matter before it. This duty exists whether or not a party challenges jurisdiction - the court must still consider the question. Jurisdiction cannot be conferred by party consent alone. The court is responsible for being satisfied that the conditions for its jurisdiction have been met.
Based on the experience of conducting interviews in four different sectors in Pakistan, New York, Dubai and Kabul, there is a strong need to develop skills of professionals on writing resumes and giving effective resume.
This Presentation is designed by the Trainer, Mr Annan Waffi Sohail Qureshi based on his Global HR experience with four different sectors.
The document provides tips for writing effective resumes and cover letters, and preparing for interviews. It discusses highlighting achievements and skills in resumes, researching companies for cover letters and interviews, and having examples prepared to answer behavioral questions in interviews. Resumes should focus on skills and accomplishments rather than just job descriptions. Cover letters should convey interest in the company and position while interviews require researching the employer and practicing common questions.
This document provides a quick guide to different letter formats including full block and modified block styles. It shows examples of each format with and without letterhead, noting the indentations used in modified block style and how enclosures or a shorter name are indicated. The document ends by thanking the reader and providing contact information for feedback.
This document provides information on formatting business letters and personal letters. It discusses the different parts of a letter including the return address, dateline, salutation, body, complimentary close, and signature. It explains the differences between a personal-business letter and a business letter. A personal-business letter uses a home address as the return address while a business letter uses letterhead. It also describes the block style format for letters and includes examples of letters formatted with open and mixed punctuation. Special notations that can be included are typist initials, enclosure notations, attachment notations, and copy notations.
The document discusses different types of comprehension questions that may be asked about a passage. It describes direct questions that can be answered explicitly in the text, as well as inferential questions that require readers to think deeper about clues in the passage and use context to deduce the answer. Rephrasing questions involve restating a phrase or sentence from the passage in your own words. Vocabulary questions require defining or explaining the meaning of a word used in the passage. The document also covers interpreting text and making intelligent guesses or inferences, including logical inferences based on definitions and empirical inferences based on observations.
There are many types of letters for different subjects, from personal to formal. This document focuses on two common business letter formats: block style and modified block style. Block style aligns all text along the left margin for a formal, organized appearance. Modified block style is less formal, with the return address, closing, and signature right-aligned for variation from block style. Companies may have their own letter standards, so check specific guidelines before writing.
This document discusses the parts and formats of business letters. It identifies the three main components as the blocked, semi-blocked, and unblocked/indented formats. The blocked format lines up all text along the left margin. The semi-blocked centers some text in the middle of the page. And the unblocked/indented format indents the first line of paragraphs and centers the subject line. The document also lists the typical parts of a business letter as the sender's address, date, recipient's information, subject, salutation, message body, closing, signature, and designation.
This document provides information on various types of internal written communications used in offices including memorandums, memo reports, office orders, office circulars, and office notes. It describes the purpose and structure of memos and how to effectively write memos. It also explains the differences between memos, letters, office orders, and office circulars. Key details include that memos are used to convey information, instructions, policies, suggestions within an organization and have a standard structure of to, from, date, subject, introduction, discussion, conclusion, and signature. Office orders contain instructions that must be followed while office circulars provide useful information to all departments in a company.
This document provides guidelines for writing memos within a business or organization. It explains that memos differ from letters in that they are used internally, are short and direct in style, lack salutations and complimentary closings, and have a specific format. The document outlines the typical sections of a memo, including the TO, FROM, DATE, SUBJECT, BODY, and special parts like references and copies. It recommends double spacing and 1-inch margins. Templates and sample memos are available to demonstrate the proper memo format.
This document provides information on writing formal letters, including their typical characteristics, layout, and structure. Formal letters are addressed to someone you don't know personally and discuss work, business, or official topics. The document outlines the key components of a formal letter, including the address, salutation, body, complimentary close, and provides examples of different types of formal letters.
The document summarizes key aspects of facial expressions. It discusses the basic structure of facial expressions involving the eyes and full face. It then examines specific facial expressions for happiness, sadness, anger and fear by describing the characteristics of the mouth and eyes for each. The document also covers facial expressions in animation, individual differences in expressions, and tips for facial expressions when giving presentations, such as smiling with the eyes and using expressions to engage an audience.
The document provides guidance on writing a formal letter, outlining the standard format and elements that should be included. The format recommends including the sender's address and date in the top right corner, the recipient's address in the center, and greetings, multiple paragraphs of details, and a closing. Key elements are an introductory paragraph stating the reason for writing, additional paragraphs with more information, and a concluding paragraph with solutions or requests.
The document discusses comprehension strategies for students in grades K-3. It defines comprehension as the interaction between reader and text to extract meaning. Research shows explicitly teaching comprehension strategies one at a time with modeling, practice, and guidance is effective. Comprehension is important for learning from text and performing well on tests. Good readers use strategies like activating prior knowledge and drawing inferences. Teachers should incorporate direct instruction of strategies like answering questions and summarizing.
Letters can be personal or formal.
Formal Letters are business letters and constitute business thank you letter,sales letter,order letter,application letter,etc.
Birthday letter,Sorry letter,etc are Personal Letters .
The document discusses different types of memos used in business communication. It defines memos and explains they are typically used to inform readers within a company. The main types of memos covered include directive memos to communicate policies/procedures, trip reports to summarize business ventures, response memos to provide requested information, and field reports to outline inspection findings. Examples of each memo type are provided to illustrate their common structure and purpose.
National union v. redbox order on msj august 7 2014 wd waSeth Row
This order addresses National Union Fire Insurance Company's motion for summary judgment regarding its duties to defend and indemnify Redbox Automated Retail in various lawsuits. The court grants in part and denies in part the motion. Specifically, the court finds that National Union has a duty to defend Redbox in the Cain lawsuit, which alleges violations of Michigan's video rental privacy law, but not in the Mehrens lawsuit, which alleges violations of California's credit card receipt law. The court also finds that while National Union may issue reservations of rights and set reasonable rate caps when defending insureds, it must do so reasonably and in good faith.
The document summarizes two cases where courts recognized a promissory estoppel claim against an employer - Roberts v. Geosource Drilling Services, Inc. and Hernandez v. UPS Supply Chain Solutions, Inc. In Roberts, the employee quit his job and prepared to work for Geosource in reliance on oral promises and a written contract, but Geosource rescinded the job offer. In Hernandez, the employee had actually moved from Illinois to Texas based on a job promise. Both courts found promissory estoppel claims based on the employees' detrimental reliance on the employers' promises.
Beneficial Motion to Dismiss Based on SB 814Seth Row
Beneficial moves to dismiss the plaintiffs' amended complaint based on Oregon's recently enacted Senate Bill 814. SB 814 amended ORS 465.480 to eliminate contribution claims against insurers like Beneficial that entered into a good faith settlement with their insured, Zidell, regarding environmental claims related to Zidell's Moody Avenue site. The legislation applies retroactively to this case. Zidell and Beneficial negotiated and reached a settlement in good faith to resolve Zidell's claims for insurance coverage relating to the Moody Avenue site. As a result, under the new law, the court lacks jurisdiction over the plaintiffs' contribution claim against Beneficial regarding that settlement. Therefore, Beneficial argues the amended complaint
Overturning an Arbitration Award: Are the FAA’s Grounds ExclusiveStuartBoyarsky
The document discusses the history and development of the 'manifest disregard of the law' standard for vacating arbitration awards. It traces how the standard originated in the Supreme Court's Wilko v. Swan decision and was later developed by various circuit courts. However, in Hall Street Associates v. Mattel, the Supreme Court ruled that the statutory grounds under the Federal Arbitration Act are exclusive for vacating an award. This created uncertainty over whether manifest disregard remains a valid standard, leading to a circuit split that the Supreme Court has so far declined to resolve by denying certiorari in four relevant cases."
547 2018 03 01 edmonton (city) v can-west corporate air charters ltdPaul Barrette
The Alberta Land Compensation Board was considering an application by the City of Edmonton to dismiss a claim by Can-West Corporate Air Charters Ltd. for compensation relating to an expropriation by the City. Can-West was a lessee of the land at the time it received notice that the City intended to expropriate, but was no longer a lessee when the certificate of approval was registered. The Board had to determine if these facts alone prevented Can-West's claim, except for potential costs under sections 35 or 39 of the Expropriation Act. The Board also considered whether expropriation should be viewed as a process rather than just the moment title transfers, and what compensation may be owed if the expropri
Federal Judge Rules Against Small Haulers in Waste Management DisputeThis Is Reno
Reno's small waste haulers were dealt a blow this week in their ongoing dispute against the City of Reno and Waste Management. Green Solutions Recycling filed suit against the city and Reno Disposal (Waste Management) over the city's enforcement of its franchise agreement with Waste Management.
Judge Mosman avoided directly ruling on the application of SB 814 to the defense costs being sought by Schnitzer, instead holding that Schnitzer was judicially estopped from arguing that its defense counsel was "independent counsel" subject to SB 814.
WEST SHELL, JR.; and ANDREW C. HAUCK, III, Plaintiffs-Appellants.docxphilipnelson29183
WEST SHELL, JR.; and ANDREW C. HAUCK, III, Plaintiffs-Appellants, HERBERT A. MIDDENDORFF, Plaintiff, v. R.W. STURGE, LTD.; THE COUNCIL OF LLOYD'S; THE SOCIETY OF LLOYD'S; and THE CORPORATION OF LLOYD'S, Defendants-Appellees.
No. 94-3119
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
55 F.3d 1227; 1995 U.S. App. LEXIS 13911; 1995 FED App. 0176P;
63 USLW 2804; Blue Sky L. Rep. P 74,044 (6th Cir.)
May 1, 1995, Argued
June 8, 1995, Decided
June 8, 1995, Filed
PRIOR HISTORY: [**1] ON APPEAL from the United States District Court for the Southern District of Ohio. District No. 93-00802. Herman J. Weber, District Judge.
COUNSEL: For WEST SHELL, JR., ANDREW C. HAUCK, III, Plaintiffs - Appellants: John L. Campbell, ARGUED, BRIEFED, Kohnen, Patton & Hunt, Cincinnati, OH. Virginia C. Whitman, White, Getgey & Meyer, Cincinnati, OH. For R.W. STURGE, LTD., formerly A.L. Sturge (Management) LTD dba R.W. Sturge & Company, THE CORPORATION OF LLOYD'S, THE SOCIETY OF LLOYD’s THE COUNCIL OF LLOYD'S, Defendants - Appellees: Charles J. Faruki, ARGUED, BRIEFED, Faruki, Gilliam & Ireland, Dayton, OH.
JUDGES: Before: KENNEDY and SUHRHEINRICH, Circuit Judges; HILLMAN, District Judge. * * The Honorable Douglas W. Hillman, United States District Judge for the Western District of Michigan, sitting by designation.
OPINIONBY: KENNEDY
OPINION: [***2]
[*1228] KENNEDY, Circuit Judge. Plaintiffs, investors in the Society of Lloyd's, brought this diversity action against defendants R. W. Sturge, Ltd., the Society of Lloyd’s, the Council of Lloyd’s and the Corporation of Lloyd’s seeking to rescind their investment contracts under Ohio securities law. Defendants filed a motion to dismiss for improper venue under Rule 12(b)(3) of the Federal Rules of Civil Procedure on the grounds that forum selection clauses in the investment contracts gave exclusive jurisdiction to the English courts. The District Court granted the motion to dismiss and plaintiffs now appeal, arguing that the forum selection clauses deprive them of their substantive rights under the Ohio securities laws and that Ohio public policy outweighs the policies served by enforcing the forum selection clauses. For the following reasons, we affirm.
I.
The Society [**2] of Lloyd's, or Lloyd’s of London, (“Lloyd's”) is not an insurance company, but rather is an insurance marketplace in which individual Underwriting Members, or Names, join together in syndicates to underwrite a particular type of business. The Corporation of Lloyd’s (“Corporation”), which was created by an Act of Parliament, regulates the Lloyd’s insurance market. The Corporation itself does not underwrite any insurance, but provides facilities and services to assist underwriters. The Corporation is managed by the Council of Lloyd’s (“Council”) which controls the admission and discipline of Names, sets the Names’ reserve requirements and establishes standards for Lloyd’s policies.
To become a Name, one must apply and be sponsore.
The document is a court opinion from the Minnesota Court of Appeals regarding a challenge to a municipal ordinance in Red Wing, Minnesota that allows for warrantless inspections of rental properties to check for code violations. The court affirms the lower court's decision granting summary judgment for the city. The court finds that the U.S. Supreme Court's decision in Camara v. Municipal Court established that reasonable inspections of rental properties pursuant to warrants do not require individualized probable cause of a code violation and do not violate the Fourth Amendment. The court also determines that the Minnesota Constitution should be interpreted consistently with the Fourth Amendment in this context, and that the plaintiffs have not provided sufficient justification to interpret the Minnesota Constitution differently. Therefore, the rental
This document is an appellant's opening brief for a case in the California Court of Appeal regarding a trust. Robert Quick (the appellant) alleges that Andrea Pearson (the respondent), as trustee, breached the trust by concealing its existence from him and failing to provide him distributions as a beneficiary. The brief argues that Quick sufficiently alleged facts to state a cause of action and overcome defenses of statute of limitations and laches. It maintains the trial court erred in sustaining Pearson's demurrer without leave to amend.
This case involves a dispute over insurance proceeds from an automobile accident settlement. Plaintiff Glenn Cody received $25,000 from the insurer of the at-fault driver, but had over $29,500 in medical expenses. Defendant MILA paid $17,632.18 of Plaintiff's medical expenses and asserts an equitable lien over the settlement funds. Plaintiff disputes the validity of MILA's lien. Plaintiff was also insured by Defendant Farm Bureau, which provided $25,000 in UM coverage, but disputes its applicability. The Court must determine the validity of MILA's lien to then address potential liability of Farm Bureau.
When Is The Surety Liable For Attorneys Feesmcarruthers
This paper examines both attorneys’-fees and interest awards against sureties on Miller Act payment-bond claims. It also suggests several policy arguments against imposing attorneys’ fees and interest awards on sureties.
By: Daniel R. Hansen and William H. Sturges
This document provides a list of case citations to be studied for the LEGT 5512 LEGAL FOUNDATIONS FOR ACCOUNTANTS SESSION 2, 2010 course. It includes 50 cases related to legal topics like federal and state powers, contract law principles, misrepresentation, causation, remoteness, contributory negligence, and duty of care. The list is not exhaustive but provides a handy reference for students with brief descriptions to help identify the key cases. It cannot be used during the Final Examination.
This document is a letter from Plaintiffs' counsel opposing a motion to dismiss from Defendant Unigestion Holding. The letter argues that the complaint provides sufficient details about Unigestion's involvement in an alleged conspiracy to illegally impose fees on phone calls and money transfers to Haiti in violation of antitrust laws. The letter cites evidence from a New York Times article and videos showing an agreement was made between Unigestion and other defendants to fix prices. The letter also argues the complaint meets pleading standards and that dismissal would be improper at this stage.
This case involves a dispute over whether a nonconforming hotel use was abandoned under the city's zoning ordinance. The owners wanted to convert the hotel into offices. A neighbor argued the hotel use was abandoned due to years of non-use. The board found no abandonment since the owners tried to sell the property as a hotel. The court reversed, finding the record showed an intent to discontinue the hotel use based on years of non-use and no explanation for it. The appellate court affirmed, as the record did not show efforts to continue the hotel use or find an acceptable substitute use during the long period of non-use.
This case involves a dispute over whether a hotel property's nonconforming use status under zoning laws had been abandoned. The local board of adjustments found that the long-disused hotel's nonconforming use as a hotel had not been abandoned because the owners had attempted to sell the property as a hotel. However, the circuit court reversed, finding abandonment had occurred. The appellate court affirmed, finding that while the sale attempt rebutted the presumption of abandonment from the long disuse, the overall record compelled a finding that the owners intended to abandon the nonconforming use.
Copy of Order issued by U.S. District Court suspending AB 219, a new statute which made deliveries of ready-mix concrete subject to California Prevailing Wage Law.
The Alleged Debtors filed a motion requesting the court's permission to file an unredacted version of their Motion to Transfer Venue under seal. They argue the unredacted version contains sensitive commercial information regarding their financial condition and restructuring negotiations that could harm their business if disclosed publicly. The Alleged Debtors state they have publicly filed a redacted version, and the unredacted version would only be available to the court and specific receiving parties subject to confidentiality restrictions. They believe this balancing of interests appropriately protects their sensitive information while still allowing for consideration of the merits of their transfer motion.
This document summarizes a court case between First American Title Insurance Company, Winnebago County Title Company, and TCF Bank regarding a mortgage on a property owned by Patricia Bartholomew. TCF Bank held the first mortgage on the property as a revolving line of credit. Winnebago acted as an agent in a second mortgage taken out by Bartholomew. Winnebago paid off the TCF Bank mortgage but TCF did not release its lien. Bartholomew then took out more funds through the revolving credit and defaulted. The court found that TCF Bank was not legally required to release the lien until the revolving credit was cancelled by Bartholomew. However
This document establishes rules for interpreting business property insurance policies in Oregon relating to business interruption claims from events like pandemics. It prohibits certain insurer conduct like failing to timely investigate or pay claims. Insureds can sue for actual damages if insurers violate these rules. The act takes effect immediately.
PPT for ABA SAC 2018 of ICLC Tucson Conference 2018Seth Row
The document discusses the benefits of exercise for mental health. Regular physical activity can help reduce anxiety and depression and improve mood and cognitive functioning. Exercise causes chemical changes in the brain that may help protect against mental illness and improve symptoms.
Opinion granting plaintiffs' msj 17-02-10 reliance is required spending on ...Seth Row
US District Court, District of Oregon, order holding that insurer did not "rely" on insured's alleged misrepresentation by incurring expenses to investigate insured's loss
2014 09-12 plaintiff's reply brief re application of all-sums rule v. time-on...Seth Row
The document discusses the benefits of exercise for mental health. Regular physical activity can help reduce anxiety and depression and improve mood and cognitive functioning. Exercise causes chemical changes in the brain that may help protect against mental illness and improve symptoms.
This document is an opinion and order from a United States District Court case between Siltronic Corporation and various insurance companies including Employers Insurance Company of Wausau regarding insurance coverage and payment of defense costs for environmental claims arising from contamination at the Portland Harbor Superfund site. The court considers Siltronic's motion for partial summary judgment that Wausau has a continuing duty to defend Siltronic under its 1978-79 insurance policy and must reimburse unpaid defense costs. The court provides background on the insurance policies and contamination issues before analyzing the relevant policy provisions and ruling on the motions.
Judge Stewart - Siltronic Order on Allocation of Environmental Response Costs...Seth Row
Judge Stewart's order goes behind the labels applied to various environmental response costs, to the purpose for which the work was done, to determine for insurance purposes whether a cost was "defense" or "indemnity."
1) The attorney, Seth Row, wrote a letter to Senator Shields to express concerns about bill HB 4051, which would allow insurers to provide policy documents via website rather than paper copies. 2) Row believes the bill lacks important protections for policyholders by not ensuring they consent to electronic delivery or have a choice in delivery method. 3) The bill's 10-year retention period for policy documents is also insufficient, as insurance claims often arise decades after a policy is issued, placing policyholders at a disadvantage in "lost policy" disputes.
The Ninth Circuit Court of Appeals ruled that a letter from the EPA under section 104(e) of CERCLA, requesting information from a landowner at a Superfund site, constitutes a "suit" and therefore triggers an insurer's duty to defend. This decision, along with previous trial court rulings in Oregon, establishes that insurers must defend policyholders who receive such information request letters. The court's interpretation of Oregon's environmental insurance claims statute, the OECAA, broadened the definition of "suit" and rejected arguments that the statute impaired contracts. This ruling may impact many involved at the Portland Harbor Superfund Site and other contaminated sites in Oregon.
Multi care health system v. lexington ins. co.Seth Row
This document is a memorandum from a United States Court of Appeals summarizing a case between Multicare Health System and Lexington Insurance Company. The court dismissed Multicare's claims against Lexington with prejudice, finding that Lexington did not have a duty to disclose the self-insured retention amount on the certificate of insurance provided to Multicare. The certificate stated the insurance policy limits but not the retention amount. The court determined that Lexington and USI did not make any affirmative misrepresentations, and they did not have a fiduciary or other special relationship that would create a duty to disclose the retention amount to Multicare. Therefore, Multicare failed to state a claim for misrepresentation or other causes of action.
Anderson Bros v. Travelers 9th Cir Decision August 30 2013Seth Row
This document summarizes an appeals court case regarding whether an insurer had a duty to defend its insured. The insured received two letters from the EPA identifying it as potentially responsible for environmental contamination at a Superfund site. The insurer refused to defend, arguing the letters were not "suits." The court affirmed the lower court's ruling that the letters triggered the duty to defend under the policy. Both letters alleged facts that could establish the insured's liability under CERCLA and Oregon law considers such letters a "suit" in the context of comprehensive general liability policies.
Findings and Conclusions awarding damages to Ash Grove against Travelers and Liberty Mutual for breach of duty to defend in connection with Portland Harbor Superfund Site.
Charter oak v. interstate mechanical usdc oregon july 2013 mosman papakSeth Row
This document is a court opinion and order regarding various motions for summary judgment in an insurance coverage dispute. The judge adopts the findings and recommendation of the magistrate judge, who recommended granting in part and denying in part several motions for summary judgment. Specifically, the judge agrees that Glacier failed to properly assert a claim for bad faith breach of contract. The judge also finds that Glacier breached its duty to cooperate under the insurance policies by confessing judgment in a related case without notice to the insurers.
Bad Faith Insurance Law Overview, Oregon Alaska Idaho MontanaSeth Row
This document summarizes bad faith law in the Pacific Northwest states of Oregon, Alaska, Idaho, and Montana. It outlines the requirements to bring a bad faith claim in each state, such as needing a special relationship in Oregon or the claim not being fairly debatable in Idaho. The standard of care expected of insurers is also discussed for each state, for example, acting as an ordinarily prudent insurer would in Oregon. Potential remedies like damages, attorney fees, and estoppel are mentioned for the different states. Contact information is provided for the authors at the end.
Letter to Senator Johnson (Oregon) Supporting HB3160/SB414Seth Row
This letter summarizes a legal case involving an insurance company, St. Paul Fire & Marine, refusing to defend its policyholder Anderson Brothers in a Superfund cleanup case, in violation of Oregon law. It asks the senator to support a bill that would complement recent amendments to the Oregon Environmental Cleanup Assistance Act, as the current law does not apply to most coverage disputes small businesses face. The letter explains that without this legislation, insurance companies have little incentive to defend policyholders as required by their contracts.
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The Key Summaries of Forum Gas 2024.pptxSampe Purba
The Gas Forum 2024 organized by SKKMIGAS, get latest insights From Government, Gas Producers, Infrastructures and Transportation Operator, Buyers, End Users and Gas Analyst
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Empowering Excellence Gala Night/Education awareness Dubaiibedark
The primary goal is to raise funds for our cause, which is to help support educational programs for underprivileged children in Dubai. The gala also aims to increase awareness of our mission and foster a sense of community among attendees
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AskXX Pitch Deck Course: A Comprehensive Guide
Introduction
Welcome to the Pitch Deck Course by AskXX, designed to equip you with the essential knowledge and skills required to create a compelling pitch deck that will captivate investors and propel your business to new heights. This course is meticulously structured to cover all aspects of pitch deck creation, from understanding its purpose to designing, presenting, and promoting it effectively.
Course Overview
The course is divided into five main sections:
Introduction to Pitch Decks
Definition and importance of a pitch deck.
Key elements of a successful pitch deck.
Content of a Pitch Deck
Detailed exploration of the key elements, including problem statement, value proposition, market analysis, and financial projections.
Designing a Pitch Deck
Best practices for visual design, including the use of images, charts, and graphs.
Presenting a Pitch Deck
Techniques for engaging the audience, managing time, and handling questions effectively.
Resources
Additional tools and templates for creating and presenting pitch decks.
Introduction to Pitch Decks
What is a Pitch Deck?
A pitch deck is a visual presentation that provides an overview of your business idea or product. It is used to persuade investors, partners, and customers to take action. It is a concise communication tool that helps to clearly and effectively present your business concept.
Why are Pitch Decks Important?
Concise Communication: A pitch deck allows you to communicate your business idea succinctly, making it easier for your audience to understand and remember your message.
Value Proposition: It helps in clearly articulating the unique value of your product or service and how it addresses the problems of your target audience.
Market Opportunity: It showcases the size and growth potential of the market you are targeting and how your business will capture a share of it.
Key Elements of a Successful Pitch Deck
A successful pitch deck should include the following elements:
Problem: Clearly articulate the pain point or challenge that your business solves.
Solution: Showcase your product or service and how it addresses the identified problem.
Market Opportunity: Describe the size, growth potential, and target audience of your market.
Business Model: Explain how your business will generate revenue and achieve profitability.
Team: Introduce key team members and their relevant experience.
Traction: Highlight the progress your business has made, such as customer acquisitions, partnerships, or revenue.
Ask: Clearly state what you are asking for, whether it’s investment, partnership, or advisory support.
Content of a Pitch Deck
Pitch Deck Structure
A pitch deck should have a clear and structured flow to ensure that your audience can follow the presentation.
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Lawrence Gottlieb, OSB #070869
Igottlieb@bpmlaw.com
Betts, Patterson & Mines, P.S.
701 Pike Street, Suite 1400
Seattle, WA 98101-3927
Telephone: 206-292-9988
Facsimile: 206-343-7053
Attorneys for Defendants
Continental Casualty Company and
Transportation Insurance Company
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
SCHNITZER STEEL INDUSTRIES, INC., an
Oregon corporation; and MMGL CORP., a
Washington corporation, NO. 3:1 0-cv-0 1174-MO
Plaintiffs, MEMORANDUM IN SUPPORT OF
DEFENDANTS’ MOTION IN LIMINE
VS. RE EFFECT OF THE SB 814
INDEPENDENT COUNSEL RULES
CONTINENTAL CASUALTY COMPANY,
an Illinois corporation; and
TRANSPORTATION INSURANCE
COMPANY, an Illinois corporation,
Defendants.
I. INTRODUCTION
Defendants Continental Casualty Company and Transportation Insurance Company
(collectively "Continental") submit this Motion in Limine to address the purported effect of
Senate Bill 814, amending ORS §465-480, on Plaintiffs Schnitzer Steel Industries, Inc. and
Schnitzer Investment Corp.’s (now MMGL) (collectively "Schnitzer") claimed right to select
MEMORANDUM IN SUPPORT OF
DEFENDANTS’ MOTION IN LIMINE
[Cause No. 2:10-cv-01 174-MO]
6374391/081613 1314/80360002
1 - Betts
Patterson
Mines
One Convention Place
Suite 1400
701 Pike Street
Seattle, Washington 98101-3927
(206) 292-9988
Case 3:10-cv-01174-MO Document 216 Filed 08/16/13 Page 1 of 19 Page ID#: 2903
2. 1 Bingham McCutchen as independent counsel and demand full payment of Bingham’s fees at
2 exorbitant Los Angeles rates.
3 The key issues related to SB 814’s independent counsel rule are very simple. The act
4 contains a "savings" clause specifying that the rules of construction established by the act,
5 including those applicable to independent counsel, do not control when inconsistent with the
6 intent of the parties. The "savings" clause applies here because the Continental policies grant
7 Continental the absolute right to control the defense, which includes selection of defense
8 counsel. Further, as found by the Court, there is an agreement between Continental and
9 Schnitzer as to defense counsel rates.
10 In addition to being contrary to the intent of the parties, applying the independent
11 counsel rules as requested by Schnitzer would impermissibly negate the tripartite relationship
12 that has existed between Continental, Schnitzer, and Bingham since Bingham was first retained
13 as defense counsel many years ago. The attorney-client relationship and associated ethical
14 rules are outside the province of the legislature and cannot be modified, or otherwise
15 disregarded by statute.
16 Even assuming that SB 814 were held to be applicable here, it does not (1) deprive
17 Continental of the right to select independent counsel; (2) impose more than a good faith
18 standard on the insurer’s selection of counsel; or (3) require the payment of excessive out-of-
19 forum rates. Taken together, Continental’s main points demonstrate that SB 814’s independent
20 counsel rules do not materially impact the issues in this case.
21 II. RELEVANT FACTS
22 Schnitzer’s claims arise from alleged contamination at certain upland sites in the
23 vicinity of the Portland Harbor Superfund Site ("PHSS") with which Schnitzer is or has been
24 associated as an owner and/or operator and also from its potential liability in connection with
25
MEMORANDUM IN SUPPORT OF
DEFENDANTS’ MOTION IN LIMINE
[Cause No, 2:10-cv-01 174-MO]
6374391/081613 1314/80360002
-2- Betts
Patterson
Mines
One Convention Place
Suite 1400
701 Pike Street
Seattle, Washington 98101-3927
(206) 292-9988
Case 3:10-cv-01174-MO Document 216 Filed 08/16/13 Page 2 of 19 Page ID#: 2904
3. 1 the PHSS. (Complaint, ¶ 19.) In 2001, Continental agreed to defend Schnitzer with respect to
2 the Portland Harbor matter, subject to a full reservation of rights. (Declaration of Lawrence
3 Gottlieb in Support of Defendants’ Motion for Partial Summary Judgment Re: Attorney Fees
4 and Prejudgment Interest (Docket # 79) ("Gottlieb SJ Dccl.") ¶ 2.)
5 When Continental accepted the defense, Schnitzer was employing Stoel Rives as
6 defense counsel. (Exhibit B (Excerpts from deposition transcript of Mathew Cusma) to
7 Gottlieb SJ Decl., p.31: 11.10-16; p.36: 11.10-20).) After identifying a conflict of interest that
8 prevented Stoel Rives’ continued participation as defense counsel, Continental proposed two
9 highly qualified Portland attorneys as potential replacement counsel. (Exhibit C (Exhibit 4 to
10 Cusma deposition) to Gottlieb SJ Decl.) Following a pro forma effort at evaluating these local
11 attorneys, Schnitzer rejected Continental’s proffered counsel in favor of the Bingham firm in
12 Los Angeles. (Exhibit A (Excerpts from deposition transcript of Thomas Zelenka) to Gottlieb
13 SJ Decl., at p.158: 1.16 p.159: 1.7; p.140: 11.8-14).) Bingham charged rates far in excess of
14 forum rates and significantly higher than Continental paid to defense counsel in similar matters.
15 (Exhibit E (Schnitzer: Portland Harbor Hours and Rates 2002-2011) to Gottlieb SJ Decl.)
16 While emphasizing, and reserving, its right to select defense counsel, Continental agreed to the
17 retention of Bingham in return for Schruitzer’ s acceptance of fee reimbursements at the lower
18 rates requested by Continental - rates in line with the local forum, including those paid by
19 Continental in similar matters. (Exhibit F (November 10, 2003, Letter from David Prange) to
20 Gottlieb SJ Deci.)
21 Following a round of cross-motions for summary judgment in this coverage action, the
22 Court found that the parties had entered into an agreement under which Schnitzer assented to
23 partial reimbursement of Bingham’s fees at the rates requested by Continental. (March 9, 2012
24 Findings & Recommendations ("March 9 F&R") (Docket # 124), at 28.) Nevertheless, the
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4. 1 Court further found that Schnitzer reserved its right in the agreement to later seek full
2 reimbursement, while declining to reach the issue on summary judgment of whether Schnitzer
3 had a right, in the first instance, to select independent counsel. (Id.)
4 In ruling upon Continental’s alternative argument that Schnitzer was limited to forum
5 rates, the Court concluded that the insurer fulfills its defense obligation if it proffers defense
6 counsel in the forum (or the cheapest counsel available outside the forum) that "can reasonably
7 be expected to provide competent representation as of the time the selection is made." (Id. at
8 31.) In accord with the "forum rule" advocated by Continental, the Court also found that
9 Schnitzer did not "enjoy unfettered discretion to select [defense] counsel [outside the forum]
10 without regard to expense." (Id. at 32.) Instead, Schnitzer had to prove that counsel "expected
11 to provide competent representation" was not available in the forum. (Id. at 33.)
12 While the parties were awaiting the Court’s ruling on a discovery matter and the official
13 reassignment of the case for trial, the Oregon legislature, at the prompting of counsel for local
14 industry groups involved in the PHSS, passed SB 814. This act purports, among other things,
15 to establish additional environmental claims handling rules, the right to independent counsel
16 under certain circumstances, and standards applicable to the retention and payment of such
17 counsel.
18 On July 19, 2013, Schnitzer’s outside coverage counsel wrote to Continental’s counsel
19 making various demands under SB 814. (Exhibit A (July 19, 2013 letter from Kristin Sterling)
20 to Declaration of Lawrence Gottlieb ("Gottlieb Deci."), at 3.) In its letter, Schnitzer contended
21 that SB 814 entitled it to select independent counsel and that it has selected Bingham. On this
22 basis, Schnitzer demanded full payment of alleged past due attorney fees at Bingham’s full,
23 exorbitant Los Angeles rates. By letter dated August 2, 2013, Continental responded to the
24 July 19 correspondence, rejecting Schnitzer’s unreasonable demands. (Exhibit B (August 2,
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5. in
2013 letter from Larry Gottlieb) to Gottlieb Deci.) With regard to independent counsel,
Continental denied that (1) SB 814 provided Schnitzer with the asserted right to select Bingham
and (2) required payment of fees for counsel "outside the insured’s community" at rates
exceeding the "regular and customary rates" in the "community where the underlying claim
arose or is being defended." (Id. at 2.)
III. ARGUMENT
Section 7 of SB 814 governs an insured’s right to select independent counsel. Schnitzer
contends that, following the Oregon legislature’s enactment of SB 814 on June 10, 2013, it has
selected Bingham as "independent counsel" and may now recover Bingham’s full rates despite
the fact that those rates far exceed reasonable rates in the forum, including the rates typically
paid by Continental to defense counsel in similar matters. (Exhibit A to Gottlieb Decl.)
Section 7 sets forth the general independent counsel rule as follows:
If the provisions of a general liability insurance policy impose a duty to defend
upon an insurer, and the insurer has undertaken the defense of an environmental
claim on behalf of an insured under a reservation of rights, or if the insured has
potential liability for the environmental claim in excess of the limits of the general
liability insurance policy, the insurer shall provide independent counsel to
defend the insured who shall represent only the insured and not the insurer.
Laws 2013, Ch. 350, § 7(1) (emphasis added). Section 7 then describes the standards
applicable to the selection and payment of independent counsel. However, taken together, and
in light of the specific facts at issue, these provisions do not support Schnitzer’s position. To
find otherwise would be contrary to the terms of the Continental policies and would require the
Court to read language into SB 814 that Schnitzer may have hoped for, but failed to secure, in
seeking passage of the act.
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6. 1 A. Allowing Schnitzer to Select Bingham As Independent Counsel Under SB 814 Is
2
Contrary to the Intent of the Parties to the Continental Policies
Of significance here, Section 7 is one of the three provisions of the act that are subject
3
to the "savings" clause - "The rules of construction set forth in [Section 7] do not apply if the
4
application of the rule results in an interpretation contrary to the intent of the parties to the
5
general liability insurance policy." Id., § 4(8). This is an important circumstance with regard
6
to the independent counsel rule when, as here, there is policy language granting the insurer the
7
right to control the defense.
8
The language in the Continental policies at issue in this case triggers the "savings"
9
clause because it clearly provides that the insurer "shall have the right and duty to defend any
10
suit against the insured." The emphasized language has been held to afford "an insurer the
11
right to control the defense," which also necessarily includes the right to select defense counsel.
12
Carolina Cas. Ins. Co. v. Boiling, Walter & Gawthrop, 2005 WL 1367096 (E.D.Cal. May 31,
13
2005) (citing cases); Travelers Property Cas. Co. ofAmerica v. Centex Homes, 2013 WL
14
1411135, at *6 (N.D.Cal. April 8, 2013). Thus, the independent counsel rule in Section 7 is
15
inconsistent with the intent of the parties. Pursuant to the "savings" provision, the language of
16
the policies controls, and Section 7 does not apply. Consequently, Schnitzer does not have the
17
right to now select Bingham as independent counsel under SB 814. Bingham, therefore,
18
continues to operate within the tripartite relationship that exists under existing Oregon
19
insurance law when an insurer, like Continental, provides a defense.
20
Even if the policies did not grant Continental the right to control the defense, this Court
21
has found that the parties entered into an "agreement" concerning the retention of Bingham as
22
defense counsel and the fee structure under which Bingham was to be paid. Although the
23
Court further found that the fee arrangement was subject to a reservation of rights, that
24
circumstance does not undercut the fact that there is an existing agreement governing
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7. 1 Bingham’s retention as defense counsel. Notably, this agreement did not establish Bingham as
2 Schnitzer’s "independent counsel." Rather, Bingham simply assumed Stoel Rives’ role as
3 defense counsel within the traditional tripartite insurance defense relationship and has operated
4 in that role to date. In keeping with this agreement, Bingham has treated both Schnitzer and
5 Continental as its clients, informing Continental, among other things, of its defense strategy in
6 the underlying action and negotiating billing questions directly with Continental.
7 SB 814 did not, by operation of law, undo this existing agreement. Accordingly,
8 applying Section 7 now to "transform" Bingham into independent counsel would be
9 inconsistent with this agreement - thereby also triggering the protections of the act’s "savings"
10 clause.
11 In sum, given the clear language of the policies concerning Continental’s control over
12 the defense and the separate agreement with Schnitzer regarding retention of Bingham as
13 defense counsel, the "rules of construction" set forth in Section 7 do not apply. Schnitzer,
14 therefore, does not have a right under this section (even assuming the section grants such a
15 right, discussed below) to force Continental to "provide" Bingham as independent counsel to
16 Schnitzer. Under these circumstances, Bingham owes, and continues to owe, a duty of loyalty
17 to both Schnitzer and Continental as current clients of the firm.
18 B. SB 814 Does Not Negate the Existing Tripartite Relationship Between Continental,
19
Schnitzer, and Bingham
Aside from the fact that SB 814 does not apply by virtue of the "savings" provision, it is
20
equally clear that, even absent this circumstance, SB 814 cannot negate the existing tripartite
21
relationship. During the course of this coverage action, Schnitzer has acknowledged that the
22
parties have been operating within a tripartite relationship. For example, in responding to
23
Continental’s motion in limine seeking unfettered access to interview the original defense
24
lawyers proffered by Continental (and allegedly found to be unqualified by Schnitzer) in the
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underlying action, Schnitzer admitted that both the insured and the defending insurer are clients
of the attorneys engaged in the defense of the insured. As stated by Schnitzer in its response:
Under Oregon law, when an insurer accepts the defense of an insured, lawyers
consulted on behalf of or otherwise acting for the insured dually represent both
the defending insurer and the insured. See OSB Formal Opinion No. 2005-121
("As a general proposition, a lawyer who represents an insured in an insurance
defense case has two clients: the insurer and the insured."). Although the insured
is the "primary client whose protection must be the lawyer’s ’dominant’ concern,"
the insurer and insured both qualify as clients of the consulted lawyer. Id.; see
also OSB Formal Opinion No. 2005-157.
(Plaintiffs’ Opposition to Defendants’ Motion in Limine (Docket #146) (emphasis added by
Schnitzer).) In granting Continental’s motion, this Court noted Schnitzer’s admission and
further found that it was consistent with the law governing the insurance defense context:
Indeed, because defendants are Schnitzer’ s insurers and are undertaking
Schnitzer’ s defense in connection with the Portland Harbor matter, and therefore
hold the lawyer-client privilege in common with Schnitzer in connection with that
matter, see United States v. Gonzalez, 669 F.3d 974, 977-978 (9th Cir. 2012), it is
difficult to see how Schnitzer could properly assert the lawyer-client privilege as
against the defendants in connection with any communications Schnitzer might
have had with any attorney regarding the Portland Harbor action.
(Opinion and Order (Docket #166), atlO n. 2.) In light of Schnitzer’s admission and this
Court’s express acknowledgment of the nature of the attorney-client relationship in this context,
there is no dispute that both Continental and Schnitzer are Bingham’ s clients. The existence of
this relationship is significant for two primary reasons.
First, SB 814 does not automatically convert any existing tripartite attorney-client
relationships into bipartite attorney-client relationships on the date of its enactment. 1 It does
’Additionally, Schnitzer’ s intent to use Bingham as independent counsel does not
alleviate Bingham’s duties to Continental. In re Conduct of Vaile, 300 Or. 91, 97, 707 P.2d 52
(1985) (attorney could not "by his subjective or secret analysis eliminate a current client and
decide that he was only representing another party on that particular transaction").
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9. not even purport to do so; rather, the plain language of SB 814 simply creates a duty on the part
of insurers who are defending under a reservation of rights to provide "independent counsel" to
their insureds. Continental has not "provided" Bingham to Schnitzer as independent counsel
for its defense. Similarly, in addition to defeating the intent of the parties, it would not be
permissible to now retroactively declare that Bingham has always been "independent" of
Continental merely because of the enactment of SB 814. Continental has been Bingham’s
client since Bingham first substituted in the underlying case for Stoel Rives. The parties have
operated under this arrangement for many years - sharing confidential information and
supporting a common interest. There is no authority for permitting the retroactive negation of
this attorney-client relationship by legislative fiat. Bingham’s relationship with Continental,
therefore, remains unchanged by the passage of SB 814.
Second, to the extent that Schnitzer now contends that SB 814 grants it the right to
select "independent counsel" (discussed below), it cannot select Bingham because this selection
would result in a conflict with its former client, Continental. In this regard, the Oregon Rules
of Professional Conduct ("RPC") govern Bingham’s relationship with Continental. With
respect to former clients, RPC 1.9 provides:
A lawyer who has formerly represented a client in a matter shall not thereafter
represent another person in the same or a substantially related matter in which that
Person’s interests are materially adverse to the interests of the former client unless
each affected client gives informed consent, confirmed in writing.
Or. R. Prof. Conduct 1.9. Here, Schnitzer essentially asserts a right to terminate the tripartite
relationship and to retain Bingham to represent it in the same matter in which Bingham
previously also represented Continental. RPC 1.9 prohibits this arrangement because it involves
the same matter and Schnitzer’ s interests are "materially adverse" to Continental’s with respect
to the exorbitant attorney fee rates that Schnitzer has agreed to pay Bingham and which it seeks
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[Cause No. 2:10-cv-01 174-MO]
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10. 1 to recover in full from Continental. Further, Continental will not give its consent to this
2 I representation.
3 ; The legislature simply does not have the power to alter the nature of attorney-client
4 relationships or the ethical rules that apply to those relationships. Attorneys admitted to
5 practice in Oregon are officers of the court. ORS § 9.010(1). It is the judiciary’s function to
6 regulate the practice of law, which it does through the Oregon Bar Association. Rules
7 regulating professional conduct of lawyers (disciplinary rules) are formulated by the Board of
8 Governors of the Oregon State Bar, approved by members of the Bar, and adopted by the
9 Supreme Court; they have the status of law. ORS § 9.490; Kidney Ass ’n of Oregon, Inc. v.
10 Ferguson, 315 Or. 135, 141, 843 P.2d 442 (1992). The purpose of the disciplinary rules is "to
11 govern the supervision and discipline of attorneys," and the Supreme Court and Oregon State
12 Bar have exclusive jurisdiction to enforce them. Brown v. Or. State Bar, 293 Or. 446, 451, 648
13 P.2d 1289 (1982); Vavrosky MacCoil Olson Busch & Pfeifer PC v. Employment Dep ’t, 212 Or.
14 App. 174,187, 157 P.3d 312 (2007); O.R.S. § 9.010(2) ("The Oregon State Bar is a public
15 corporation and an instrumentality of the Judicial Department of the government of the State of
16 Oregon").
17 As part of its core powers the Oregon Supreme Court has the constitutional authority to
18 discipline attorneys and judges. Ramsteadv. Morgan, 219 Or. 383, 399-400, 347 P.2d 594,
19 601-02 (1959). While the legislature may regulate the legal profession and the practice of law
20 to some extent, it may not do so if it unduly interferes with the exercise of these judicial
21 functions. State ex rel. Acocella v. Allen, 288 Or. 175, 604 P.2d 391 (1979). Under this same
22 analysis, many jurisdictions have held that rules of professional conduct for attorneys prevail
23 over state statutes to the extent that a potential inconsistency exists. 2
24 2
See, e.g., Opinion of the Justices to the Senate, 376 N.E.2d 810, 814 & n,15 (Mass.
25 1978) (if the judicial department promulgates a rule imposing on practicing attorneys standards
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To negate Continental’s status as Bingham’ s client and to allow Schnitzer to retain
Bingham as independent counsel, in violation of RPC 1.9, would contravene the above legal
principles - usurping the roles of the Oregon State Bar and the Supreme Court. Thus,
Continental was, and still is, Bingham’s client and Bingham cannot qualify as independent
counsel under SB 814.
C. Continental Has the Right To Select Independent Counsel
Even assuming Section 7 of SB 814 applies here, it does not bestow the right to select
independent counsel upon Schnitzer. 3 The provision only states that, under certain
higher than or in conflict with those imposed by legislation, the judicial rule prevails); Weems
v. Supreme Court Comm. on Prof Cond., 523 S.W.2d 900, 905-06 (Ark. 1975) (acts of
legislature with regard to regulating and defining practice of law are to be considered in aid of
judicial prerogative to regulate practice of law and not in derogation thereof); Howard v. State
Comm’n on Ethics, 421 So.2d 37, 38 (Fla. Ct. App. 1982) (statutes merely supplement Canons
of Professional Responsibility adopted by Supreme Court, and do not interfere with plenary
jurisdiction of Supreme Court to regulate practice of law under Constitution); Grecaa, Inc. v.
Omni Title Services, Inc., 588 S.E.2d 709, 710 (Ga. 2003) (No statute is controlling as to the
civil regulation of the practice of law; In re Succession of Parham, 755 So.2d 265, 270 (La. Ct.
App. 1999) (a statute may have no effect in so far as it is in conflict with rules governing
attorney’s conduct); Sharood v. Hatfield, 210 N.W.2d 275, 279-80 (Minn. 1973) (statute
purporting to regulate practice of law was unconstitutional as usurpation by the legislative
branch of the government of the judicial function of regulating the practice of law). As
numerous courts have found, legislative changes do not trump an attorney’s ethical
responsibilities. See, e.g., Miller v. Paul, 615 P.2d 615 (Alaska 1980) (attorneys must conform
to high ethical standards regardless of whether statutory rights permit contrary conduct); Matter
ofAungst, 467 N.E.2d 698 (Ind. 1984) (existence of legal duties, whether statutory or in
common law, cannot relieve lawyer from compliance with code of professional responsibility);
Pabst v. State, 192 P.3d 630 (Kan. 2008) (all attorneys are subject to the Kansas Rules of
Professional Conduct regardless of what legislative enactments might implicitly permit); Smith
County Educ. Assn v. Anderson, 676 S.W.2d 328 (Tenn. 1984) (legislature is without authority
to enact laws which impair the attorney’s ability to fulfill his ethical duties as an officer of the
court).
To the extent the Court finds that Section 7 of SB 814 applies here, it must still treat
the section as only furnishing rules of construction. As such, assuming arguendo that the right
to independent counsel is found to be implicated, the act does not trump the language in the
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12. circumstances, the insurer must "provide" the insured with independent counsel. It does not
state that the insured may, on its own initiative, "retain," "hire," or "select" such counsel.
Courts are not to read language into a statute that is not there and are instructed to apply a
statute as written. ORS. § 174.010 ("In the construction of a statute, the office of the judge is
simply to ascertain and declare what is, in terms or in substance, contained therein, not to insert
what has been omitted, or to omit what has been inserted. . ."). By comparison, the California
statute governing retention of independent counsel also indicates that the insurer must
"provide" such counsel under certain circumstances, but then repeatedly speaks in terms of the
insured’s "selection" of independent counsel. See Cal.Civ.Code § 2860.
Absent a specific directive in the statute granting the right to select independent counsel
to the insured, the Court should follow the substantial authority that bestows this right upon the
insurer. For example, in Federal Ins. Co. v. X-Rite, Inc., 748 F.Supp. 1223 (W.D. Mich. 1990),
the court rejected the insured’s contention that a conflict of interest gave it the absolute right to
select counsel. On this point, the court held:
Unless "right to defend" is to be deemed mere surplusage, which has not been
argued, it must be viewed as conferring upon Federal some prerogative with
respect to the defense beyond simply paying expenses. This prerogative cannot, in
a conflict of interest situation, include an absolute right to control the litigation.
On the other hand, XRite’s apparent presumption that the conflict of interest,
posing a potential of prejudice to its interests, automatically and completely
negated all prerogative, is not reasonable.
Id. at 1228 -1229.
The X-Rite court then went on to hold that "the ’right to defend’ can hardly be deemed
to contemplate anything less than participation in selection of counsel, which contractual right
ought to be enforced unless contrary to public policy." Id. Finally, focusing on public policy,
Continental policies granting it the right to select defense counsel in this case, independent,
defense counsel.
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13. I the court concluded that Michigan public policy required the insurer to "act with the utmost
I good faith." Id. Thus, to find that the insurer’s participation in selecting independent counsel
I somehow breached that good faith duty led to the unwarranted presumption that insurer-
I selected counsel could not adequately represent the insured. Id, (further observing: "The Court
is unable to conclude that Michigan law professes so little confidence in the integrity of the bar
of this state.,,).4
The Oregon Supreme Court has similarly found that there is minimal danger of a
I potential conflict of interest between the insurer and the insured in the insurance defense
context. See Ferguson v, Birmingham Fire Ins. Co., 254 Or. 496, 490 P.2d 342 (1969). It is, in
fact, the concern over the conflict of interest that has motivated some jurisdictions to require
the insured to make the selection. Not only has the Oregon Supreme Court declined to find
such a conflict in this arena, but SB 814 itself, unlike the California statute, stops short of
stating that a conflict of interest justifies retention of independent counsel. Instead, Section 7
only details two triggering circumstances: (1) defense under a reservation of rights or (2) if the
insured faces excess exposure for an environmental claim under a general liability policy. By
not predicating the independent counsel requirement upon a conflict of interest, SB 814 does
not implicate the conflict of interest principles that some courts use to justify granting the right
of selection to the insured. See, e.g., Previews, Inc. v. California Union Ins, Co., 640 F.2d
1026, 1028 (9th Cir.1981).
See also, Cay Divers, Inc. v. Raven, 812 F.2d 866, 870 (3rd Cir. 1987); New York
State Urban Development Corp. v. VSL Corp., 738 F.2d 61, 65-66 (2nd Cir. 1984); Howard v.
Russell Stover Candies Inc., 649 F.2d 620, 625 (8th Cir. 1981); US. Fidelity & Guaranty Co. v.
Louis A. Rosen Co., 585 F.2d 932, 937-39 (8th Cir. 1978).
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14. 1 There is, thus, no basis in SB 814 or Oregon case law for granting the right to select
2 independent counsel to Schnitzer. Continental retains this right commensurate with its
3 continuing right to control the defense.
4 D. SB 814 Does Not Impose Anything Beyond a Good Faith Standard in the Selection
5 of Qualified Independent Counsel
6
Assuming, again, that Section 7 of SB 814 is applicable, the act does not impose any
7
special criteria upon the selection of independent counsel. Rather, Section 7 speaks broadly in
8
requiring the retention of counsel "experienced in the type and complexity of the environmental
9
claim at issue." Laws 2013, Ch. 350, § 7(2)(a)(A). This section further defines "experienced,"
10
somewhat redundantly, as "an established environmental practice that includes substantial
11
defense experience in the type and complexity of the environmental claim at issue." The act
12
does not define any of the other qualifying terms, such as "established" or "substantial." Id., §
13
7(2)(c).
14
Although the above-quoted language appears to be unique, other statutory schemes that
15
expressly grant the right to select counsel upon the insured impose similar duties upon the
16
insured in making that selection. For example, under the California Cumis statute, the insured
17
has the right to select counsel but is required to ensure that selected counsel "possess certain
18
minimum qualifications which may include that the selected counsel have. . . at least five years
19
of civil litigation practice which includes substantial defense experience in the subject at issue
20
in the litigation." Cal.Civ.Code § 2860. The insured has been held to a "good faith" standard
21
in selecting appropriate counsel, both in terms of experience and billing practices. See, e.g.,
22
Center Foundation v. Chicago Ins. Co., 227 Cal. App. 3d 547, 560, 278 Cal. Rptr. 13, 21
23
(1991). The Center Foundation court found that the insured’s reciprocal good faith duty to the
24
insurer mandated that it "act reasonably in selecting as independent counsel an experienced
25
MEMORANDUM IN SUPPORT OF
DEFENDANTS’ MOTION IN LIMINE
[Cause No. 2:10-cv-01 174-MO]
637439.1/081613 1302/80360002
14 - Betts
Patterson
Mines
One Convention Place
Suite 1400
701 Pike Street
Seattle, Washington 98101-3927
(206) 292-9988
Case 3:10-cv-01174-MO Document 216 Filed 08/16/13 Page 14 of 19 Page ID#: 2916
15. attorney qualified to present a meaningful defense and willing to engage in ethical billing
I practices." Id.
Similarly here, in ruling on the parties’ motions for summary judgment, this Court held
that the "hallmark of the duty of care an insurer owes to its insured thus appears to be the
reasonableness of the insurer’s arrangements in behalf of its insured. (See March 9, 2012 F&R
at 30-3 1.) In this vein, the Court further held:
[A]n insurer is compliant with the duty of care it owes to its insured when, in the
duty to defend context, it selects counsel to defend its insured that, under all of the
circumstances, can reasonably be expected to provide competent representation as
of the time the selection is made.
(Id. at 31.)
Section 7 is not inconsistent with this ruling. It merely places sidebars on the general
reasonableness standard, specifying "substantial" experience with similar types of
environmental claims. Significantly, these general standards, interpreted in accord with a
reasonableness standard, do not impose a special, high standard on the selection of independent
counsel based upon the insured’s allegation that the case involves particularly complex issues.
As long as the insurer makes a reasonable selection, the court should find that it acted in good
faith in making that selection in conformance with the statute.
E. SB 814 Applies a Single Local Forum Standard to the Rates of Independent
Counsel
To the extent it is found applicable here, Section 7 does not leave the insured the option
of paying any exorbitant billing rate that happens to be charged by independent counsel.
Instead, Section 7 provides that "[t]he obligation of the insurer to pay fees to independent
counsel and environmental consultants is based on the regular and customary rates for the type
and complexity of environmental claim at issue in the community where the underlying claim
MEMORANDUM IN SUPPORT OF
DEFENDANTS’ MOTION IN LIMINE
[Cause No. 2:10-cv-01 174-MO]
637439.1/081613 1302/80360002
- 15 - Betts
Patterson
Mines
One Convention Place
Suite 1400
701 Pike Street
Seattle, Washington 98101-3927
(206) 292-9988
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16. 1
arose or is being defended." Laws 2013, Ch. 350, § 7(3)(a). This provision appears to be a
2 hybrid of Oregon law concerning the recovery of attorney fees (see Or. Rev. Stat. §
3 20.075(2)(c) (in determining the amount of an award of attorney fees, a court shall consider the
4 "fee customarily charged in the locality for similar services.")) and the forum rule (creating a
5 strong presumption in favor of selecting the locality where the district court sits as the relevant
6
community) (see Blumv. Stenson, 465 U.S. 886, 895 (1984); Schwarz v. Secretary of Health &
7
Human Servs., 73 F.3d 895, 906 (9th Cir. 1995)). As applied to this action, the statute
8
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unequivocally requires that Portland rates apply - not the far higher rates charged by Bingham
10 in Los Angeles.
11 Continental anticipates that Schnitzer will argue that Section 7 merely sets a floor and
12 not a ceiling on fees. To accept this interpretation would be to read something into the statute
13
that simply does not exist. Such a reading is contrary to Oregon law requiring that statutes be
14
construed as written, not as a party would prefer them to have been written. ORS § 174.010.
15
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Section 7 sets a single standard for determining the reasonableness of independent counsel fees
17
that must be applied in all circumstances involving an environmental claim.
18 Of particular reliance to this coverage action, Section 7 does not specify a different
19 standard for out-of-forum counsel. The act only states that "[i]f independent counsel who meet
20 the requirements specified in this paragraph are not available within the insured’s community,
21
then independent counsel from outside the insured’s community who meet the requirements of
22
this paragraph must be considered." Laws 2013, Ch. 350, § 7(2)(a)(B). Notably, this provision
23
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does not mandate the retention of out-of-forum counsel - it only states that such counsel must
25 be "considered." Further, the act fails to define the meaning of" not available."
MEMORANDUM IN SUPPORT OF
DEFENDANTS’ MOTION IN LIMINE
[Cause No. 2:10-cv-01 174-MO]
6374391/081613 1302/80360002
- 16 - Betts
Patterson
Mines
One Convention Place
Suite 1400
701 Pike Street
Seattle, Washington 98101-3927
(206) 292-9988
Case 3:10-cv-01174-MO Document 216 Filed 08/16/13 Page 16 of 19 Page ID#: 2918
17. 1
Given SB 814’s incorporation of the "forum rule," the standards articulated in Section 7
2 as to out-of-forum counsel must be interpreted in accord with "forum rule" case law. See
3 Halley v. Stafford, 284 Or. 523, 527, 588 P.2d 603 (Or. 1978) (holding that "statutes codifying
4 the common law are to be construed in a manner consistent with the common law"). Applying
5 that case law here, the insured must prove by, substantial evidence, that qualified, in-forum
6
counsel were unavailable. See Gates v, Deukmejian, 987 F.2d 1392, 1397 (9th Cir. 1992)
7
(meeting this burden with "numerous" declarations from in-town and out-of-town lawyers
8
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attesting to both the complexity of the litigation at issue and the unavailability of in-town
10 lawyers with the necessary experience to handle the representation). Accordingly, Section 7
11 does not in any way undercut the insurer’s right to insist upon the retention of reasonably
12 qualified defense counsel in the forum while demanding a high degree of proof (substantial
13
evidence) that such counsel was "not available."
14
If the insured is able to satisfy this heavy burden, it may retain out-of-forum counsel,
15
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but at rates decided in accord with the single standard specified in Section 7(3)(a) - which is
17
limited to forum rates. There is no support in SB 814, or under other Oregon law, for
18 interpreting the reasonable rate in the forum as only a "floor," allowing the insured to hire
19 counsel outside the forum at substantially higher rates.
20 IV. CONCLUSION
21
Continental respectfully requests that the Court find that the passage of SB 814 does not
22
bestow upon Schnitzer the rights to the retention and payment of independent counsel that
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Schnitzer now claims to possess. Schnitzer’s unreasonable position is not supported by the
25
MEMORANDUM IN SUPPORT OF
DEFENDANTS’ MOTION IN LIMINE
[Cause No. 2: 10-cv-01 174-MO]
637439.1/081613 1302/80360002
- 17 - Betts
Patterson
Mines
One Convention Place
Suite 1400
701 Pike Street
Seattle, Washington 981013927
(206) 292-9988
Case 3:10-cv-01174-MO Document 216 Filed 08/16/13 Page 17 of 19 Page ID#: 2919
18. 1
facts at issue, the rules applicable to the attorney-client relationship in Oregon, or even the
2 language of the act itself.
3
DATED this 16th day of August, 2013.
4
BETTS, PATTERSON & MINES, P.S.
5
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7 By /s/Lawrence Gottlieb
Lawrence Gottlieb, OSB #07086
8 Attorneys for Defendants
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MEMORANDUM IN SUPPORT OF
DEFENDANTS’ MOTION IN LIMINE
[Cause No. 2:1 O-cv-O 1174-MO]
6374391/081613 1302/80360002
-18- Betts
Patterson
Mines
One Convention Place
Suite 1400
701 Pike Street
Seattle, Washington 98101-3927
(206) 292-9988
Case 3:10-cv-01174-MO Document 216 Filed 08/16/13 Page 18 of 19 Page ID#: 2920
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CERTIFICATE OF SERVICE
I hereby certify that on August 16, 2013, I electronically filed the foregoing document
with the Clerk of the Court using the CM/ECF system and the document is available for
viewing and downloading from the CM/ECF system. I also certify that the foregoing document
is being served electronically via the Court’s CM/ECF notice system upon the following
counsel of record:
Counsel for Plaintiffs
Scott J. Kaplan
STOEL RIVES, LLP
900 SW Fifth Ave., Ste. 2600
Portland, OR 97204
Joseph W. Montgomery, III
John E. lole
Rebekah Byers Kcehowski
JONES DAY
500 Grant St., Ste. 4500
Pittsburgh, PA 15219-2514
Louis A. Ferreira
Stoel Rives LLP
900 SW 5th Ave., Ste. 2600
Portland, OR 97204-1268
DATED August 16, 2013.
By /s/Lawrence Gottlieb
Lawrence Gottlieb, OSB 4070869
Attorneys for Defendants
MEMORANDUM IN SUPPORT OF
DEFENDANTS’ MOTION IN LIMINE
[Cause No. 2:10-cv-01 174-MO]
637439.1/081613 1302/80360002
19- Betts
Patterson
Mines
One Convention Place
Suite 1400
701 Pike Street
Seattle, Washington 98101-3927
(206) 292-9988
Case 3:10-cv-01174-MO Document 216 Filed 08/16/13 Page 19 of 19 Page ID#: 2921