Carlton Fields (JD Supra United States)

On April 9, 2021, the Ninth Circuit Court of Appeals affirmed a lower court’s ruling that Starr Surplus Lines Insurance Co. need not provide coverage for Alorica Inc.’s loss from a 2018 phishing attack because the letter received from Alorica regarding the incident did not constitute a “claim” under Starr’s policy.

You file a motion in limine seeking to preclude certain arguments during closing. The court grants your motion. In closing argument, opposing counsel violates the ruling. Must you contemporaneously object to the argument that violates the ruling to preserve the issue for appeal?

A Colorado federal court relieved the Travelers Indemnity Company of America and Travelers Property Casualty Company of America of any obligation to defend or indemnify two putative class actions, finding neither action implicated the insuring agreement for “personal and advertising injury” contained in several Travelers commercial liability policies.

We previously wrote here about the three "musts" for an affidavit or declaration in Florida: it must be based on personal knowledge, it must contain facts as would be admissible in evidence, and it must demonstrate the affiant's competency to testify to the matters stated.

In 2006, Goldgroup and DynaResource entered into a contract relating to a gold mining operation in Mexico, which contained a dispute resolution provision requiring that the disputes be submitted to binding arbitration in Denver, Colorado, under the rules of the American Arbitration Association (AAA). Goldgroup initiated arbitration in Denver, but DynaResource refused to participate, relying on a...

Plaintiff A Better Way Wholesale Autos Inc. filed an application in Connecticut state court seeking to vacate an arbitration award issued in favor of the defendants, James Saint Paul and Julie J. Saint Paul. The defendants filed motions to confirm the award and for attorneys’ fees, and to dismiss the plaintiff’s application. The defendants argued that the application was untimely under...

The SEC routinely requests individuals who may be the subjects or targets of investigations to execute agreements that delay or suspend the time period in a statute of limitations for an agreed period (commonly referred to as “tolling agreements”). This practice generally benefits both parties: the SEC can investigate at its own pace, and the putative subjects or targets have more time to argue...

There are no adverse consequences, other than transaction costs, to engaging in tax planning before immigrating to the United States. However, there may be significant adverse tax consequences if you fail to engage in any tax planning before moving to the United States, and these consequences significantly outweigh the transaction costs of pre-immigration tax planning. Please see full...

The NAIC’s development of guiding principles on artificial intelligence seeks to proactively avoid proxy discrimination, safeguard against other unfairly discriminatory outcomes, and apply risk management to address unfair discrimination. Extending the work of the NAIC, two states have introduced proposals that seek to address unfair discrimination in the use of data or algorithms, giving...

In our April 2020 issue, we discussed how policy lapse notice cases were on the rise in California after the state amended its insurance code, requiring policies to provide a 60-day grace period and notice before any policy lapsed for nonpayment. Among other things, we noted that the California Supreme Court had accepted review of the decision in McHugh v. Protective Life Insurance Co. that the...

Consistent with the majority of decisions in courts across the country, a number of Louisiana state and federal courts have recently held that COVID-19 does not cause physical loss or damage to property as required for coverage under most first-party property policies.

As insurers consider new data from new sources and new means for consumer outreach, working through the privacy requirements is like navigating choppy waters. The various privacy regimes include...

A trend seems to be starting for open-end management investment companies to reorganize into exchange-traded funds. The March 12, 2021, merger of the Adaptive Growth Opportunities Fund, a series of the Starboard Investment Trust, into the Adaptive Growth Opportunities ETF, a series of the trust that was created for that purpose, illustrates what this may entail.

Although courts routinely enforce arbitration agreements, they will not compel arbitration of claims outside the scope of the parties’ agreement. That was the outcome in Hawkins v. Cintas Corp., in which two former employees and participants in the company’s defined contribution retirement plan sued the company for breach of fiduciary duty under ERISA for mismanaging the plan.

Both franchisees and franchisors in the restaurant industry have weathered tumultuous times due to the economic consequences of COVID-19. Franchisors faced hurdles such as having to reduce or eliminate royalties for distressed franchises dealing with shutdowns or losing franchised outlets entirely. Similarly, multiunit franchisees have struggled with a drop in sales from the pandemic. Moreover,...

The Georgia Court of Appeals affirmed summary judgment for the insurer where it paid a death benefit to the person whose name appeared on a change form, notwithstanding suggestions of fraud.

The hot topic of environmental, social, and governance (ESG) disclosure has called attention to a growing number of voices advising the SEC commissioners.

Shannon Zoller sued her former employer, GCA Advisors LLC, for violations of the Equal Pay Act, California’s Fair Pay Act, and the Civil Rights Act of 1871, among other alleged violations. GCA moved to compel arbitration pursuant to the arbitration agreements contained in various documents that Zoller signed when she began her employment, but the district court denied the motion, finding that the

Qu’est-ce que le Foreign Account Tax Compliance Act (« FATCA ») ? Depuis plusieurs années, l’IRS mène une campagne agressive contre la fraude fiscale internationale et la nondéclaration de comptes bancaires et autres actifs financiers en dehors des Etats-Unis. Le « Foreign Account Tax Compliance Act » (FATCA), entré en vigueur le 1er juillet 2014, est un dispositif de lois américaines visant à

Introduction - Last year saw a significant increase in whistleblower reports to the Securities and Exchange Commission (SEC). The SEC reportedly received 35% more tips, complaints, and referrals for investigation between mid-March and early May 2020 than during the same period in 2019. This uptick will undoubtedly lead to increased SEC enforcement actions and penalties, giving SEC-regulated...

In December 2020, by amending the Standard Nonforfeiture Law for Individual Deferred Annuities (Model 805), the NAIC gave the green light to lower the minimum standard nonforfeiture rate to 0.15% in response to the persistent low interest rate environment.

The SEC has restored the authority of senior Division of Enforcement officials to initiate investigations without requiring approval by the SEC. This authority was originally established in 2009, but later revoked in 2017. On February 9, then-acting SEC Chair Allison Herren Lee reestablished senior enforcement staff’s ability to issue subpoenas and take sworn testimony sua sponte. This approach...

At least two insurance companies are adding “buffered” investment portfolios to the lineup of underlying funds that are available to support their variable annuity and variable life insurance policies.

The New Hampshire Supreme Court recently determined that regulations limiting premium rate increases for long-term care insurance policies exceeded the state insurance commissioner’s rulemaking authority and were therefore invalid.

The Small Business Administration (SBA) recently provided new guidance regarding the eligibility of certain debtors to apply for Paycheck Protection Program (PPP) loans, clarifying that, despite the general rule that debtors “presently involved” in a bankruptcy case are ineligible, debtors with confirmed plans of reorganization are eligible.

About 20 years ago, the SEC began scrutinizing variable product fund “substitution” applications in ways that increased both the time required to obtain SEC approval and the conditions necessary to obtain such approval. The Investment Company Act of 1940 (“1940 Act”) generally prohibits an insurance company from substituting one fund supporting its SEC-registered variable products (an “underlying

The Eleventh Circuit’s decision in Hunstein v. Preferred Collection & Management Services Inc. has already changed the status quo in the debt collection industry, as the court itself predicted. Whether it will lead to any improvements in “real” consumer privacy is yet to be determined, but debt collectors must be mindful that their practices of using vendors to assist with collection efforts may...

It’s a hot spring for state privacy legislation. Privacy bills are pending in roughly 20 states, and while Gramm-Leach-Bliley Act (GLBA) exemptions may act as a cool breeze in some, issues remain...

Toward the end of the 2021 Florida legislative session, the Florida Senate passed Senate Bill 76, a bill that focuses on reducing litigation related to property insurance claims and also places restrictions on companies soliciting insureds to file roof claims.

Allegations of misconduct by agents and brokers are a consistent feature of lawsuits aimed at insurance companies. Several recent court decisions illustrate the types of claims insurers have faced and which defense strategies are proving successful.