Commercial construction projects necessarily involve many moving parts, including multiple parties from the owners to the construction managers to the project financiers to the contractors and to the sub-contractors. Larry P. Schiffer of Squire Patton Boggs writes that these moving parts generally result in a web of interrelated insurance policies covering the project.

“Typically, when there is no controlled insurance program, contractors and sub-contractors are required to obtain liability insurance covering their potential negligence and very often are also required to add others, like the property owner or construction manager, as additional insureds onto those insurance policies,” he explains. “But not all additional insured clauses are the same. In this post, we discuss what a New York appellate court recently called an ‘additional insured by written contract’ clause. The language of an additional insured clause may make all the difference as to whether a party is covered as an additional insured or not.”

He concludes that the case demonstrates that New York courts will interpret insurance policies based on the plain meaning of the words used by the parties and will not alter the contracts for equitable reasons if the language is clear and unambiguous.

Read the article.

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In closely held businesses, it is common practice to provide for the succession of the business upon the death of an owner. More often than not, such succession planning involves the use of life insurance on the life of an owner, whether to fund a redemption of the deceased-owner’s interest in the company, to make up for lost revenues resulting from the owner’s death, or to achieve other economic results, writes Mitchell Goldberg of Berger & Singerman.

“Where the company is the owner and beneficiary of the life insurance policy, the company and its principals (i.e. shareholders, members, partners) need to be mindful that certain formalities under the Internal Revenue Code (the “Code”) must be followed to ensure that the death benefit proceeds are completely tax-free under the Code,” he explains.

“The Code generally excludes from gross income amounts received (whether in a single sum or otherwise) under a life insurance contract, if such amounts are paid by reason of the death of the insured. However, in the case of an employer-owned life insurance contract (i.e. a life insurance contract owned by a “person” engaged in a trade or business and under which such person is a beneficiary and that insures the life of an employee of such person on the date the contract is issued), unless certain requirements are satisfied, the amount excluded under the Code is limited to the aggregate amount of premiums and other related amounts paid by the employer.”

Read the article.

Juan C. Enjamio and Robert Scavone Jr. of Hunton & Williams report that the Eleventh Circuit recently addressed a novel issue: What should courts do when faced with an employment contract containing provisions that run afoul of a statute aimed at protecting the rights of men and women who serve in the armed forces?

The Eleventh Circuit answered this question in Bodine v. Cook’s Pest Control Inc., and held that an arbitration agreement in an employment contract is enforceable despite the fact that certain provisions of the arbitration agreement violate the Uniform Services Employment and Reemployment Rights Act of 1994 (USERRA).

They explain that Congress enacted USERRA in part “to prohibit [employers from] discriminat[ing] against persons because of their service in the uniformed services.”

Rodney Bodine brought suit against his former employer under USERRA and state law, alleging, inter alia, that Cook’s discriminated against him because of his military service. Bodine argued that the entire arbitration agreement of his employment contract was void under USERRA’s nonwaiver provision because the statute of limitations and attorneys’ fees provisions of the arbitration agreement conflicted with USERRA.

The appellate court affirmed the district court’s order and concluded that “USERRA’s nonwaiver provision should not be read to automatically invalidate an entire agreement with USERRA-offending terms.”

Read the article.

A federal judge slammed Facebook Inc., saying the social media giant might not be doing enough to deter terrorists from using its platform, Bloomberg reports. The judge also chewed out the company’s law firm, saying “it is outrageous, irresponsible and insulting” for sending a first-year associate to handle the hearing.

U.S. District Judge Nicholas Garaufis in Brooklyn, New York, accused Facebook’s lawyers of not taking seriously lawsuits with implications of international terrorism and the murder of innocent people. He ordered Kirkland & Ellis LLP, the law firm representing Facebook, to send a more senior lawyer to the next hearing on Sept. 28 because he wanted to “talk to someone who talks to senior management at Facebook.”

“Garaufis is overseeing two lawsuits in which more than 20,000 victims of attacks and their families accused Facebook of helping groups in the Middle East such as Hamas,” reports Patricia Hurtado. “The judge noted similar suits haven’t been successful under U.S. law which insulates publishers from liability for the speech of others. But he said that doesn’t mean Facebook shouldn’t take it seriously and try to address the issue.”

Read the article.

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SFGATE reports that a Wells Fargo shareholder sued executives of the reeling San Francisco bank Thursday, accusing them of unethical conduct and seeking to make them cover the costs of setting up nearly 2 million unauthorized customer accounts.

Shareholder William Sarsfield said a federal investigation “exposed a far-reaching, systemic breakdown in corporate governance” at the bank. “Wells Fargo fostered a pervasive, widespread company culture in which employees were pressured to engage in misconduct simply to keep their jobs.”

The plaintiff noted that virtually all of the 5,300 employees fired for the conduct were low-level workers, while top executives were untouched.

“Among them was CEO John Stumpf, who made more than $19 million in salary and stock options last year and has seen the value of his stock rise by $200 million in five years,” writes Bob Egelko. “Carrie Tolstedt, who headed the bank division in which the false accounts were created, is retiring and in line for $124 million in stocks and options.”

Read the article.

Bruce Sewell is Apple’s general counsel and seniorVP of Legal and Global Security.

In the biggest rally in five years, Apple Computers’ stock surged 11 percent in the past week — unfortunately too late for five Apple executives, including the company’s general counsel — who unloaded a massive amount shares in August, according to Bloomberg.

Apple’s stock is up 7 percent for the month, thanks to booming sales of its latest iPhone.

The Bloomberg article reports that General Counsel Bruce Sewell sold 23,305 shares in early August followed by a second sale of 24,000 shares, for a total gain of approximately $5 million, according to SEC filings. He still owns 192,000 shares.

Reporter Gabe Friedman says the GC is doing OK, though:

Sewell has had a big year: He was the number one highest paid GC on Big Law Business’ list, which compared the total compensation received among companies that disclosed their GC’s compensation in their proxy statement. (Not all companies do.)

Read the article.

Buchalter announces that its Scottsdale office is growing with three new additions. Laurent Badoux joined as a Shareholder in the firm’s Labor & Employment Practice Group. He was formerly the Chair of the Phoenix Labor & Employment Practice at Greenberg Traurig LLP. Douglas John and Shaun Kuter also joined as members of the Tax & Estate Planning Practice Group. John was previously a Senior Partner at Frazer, Ryan, Goldberg & Arnold LLP, where Kuter was previously an Associate. Both Badoux and John are also licensed in Nevada, where they both have active practices.

“Laurent, Doug and Shaun are welcome additions to our growing Scottsdale office,” said Adam J. Bass, President and Chief Executive Officer of Buchalter. “Their complimentary practices to our existing labor and employment and tax and real estate capabilities make our services incomparable in this region, and Laurent, Douglas and Shaun’s expertise is another value-add to our clients.”

The firm’s release continues:

Badoux’s practice spans a national and international scale as he handles a variety of labor and employment litigation matters, including labor relations, harassment claims, wage and hour audits, breach of fiduciary duties and more. He represents clients across a number of industries and in addition to handling litigation matters, Badoux assists clients on a proactive basis by conducting audits, providing preventive employee and managerial training and drafting sound employee handbooks and policies.

“I have known many of Buchalter’s attorneys in Scottsdale for years and hold them in high regard. My labor and employment practice meshes perfectly with Buchalter’s current offerings,” said Badoux. I am eager to continue representing my clients at Buchalter.”

Badoux earned his J.D. from the Emory University School of Law and his B.A. in English composition and French literature, cum laude, from the University of Arizona.

John focuses his practice on state and local taxation matters, with an emphasis on property tax counseling and litigation. He regularly advises his clients – including individuals, small businesses and Fortune 500 corporations – as they navigate Arizona’s and Nevada’s complex state and local tax systems.

John earned his J.D. from the University of Arizona, his M.A. in economics from the University of Arizona and his B.A. in history from the University of North Carolina, Greensboro.

Kuter focuses his practice on state and local tax matters, including proactively advising clients on potential tax pitfalls and representing them in litigation in administrative tribunals, Superior Court and appellate appearances. Kuter also has significant experience with tax controversy matters, and formerly worked at the Arizona Department of Revenue’s Office of General Counsel, where he handled transaction privilege tax, use tax and luxury tax issues.

Kuter earned his J.D. from Temple University and his B.S. in political science and government from Arizona State University.

Farrell Fritz had a combined total of 30 attorneys selected to the 2016 New York Metro Super Lawyers and New York Metro Rising Stars lists.

The firm’s 20 attorneys selected to the 2016 New York Metro Super Lawyers list and the practice areas for which they have been recognized are: Peter A. Mahler, John P. McEntee, James M. Wicks and Peter B. Zlotnick (Business Litigation); Peter L. Curry (Real Estate); Jed C. Albert, Eric M. Kramer and Patricia C. Marcin (Estate & Probate); John (Jack) J. Barnosky, Ilene S. Cooper, John R. Morken and Eric W. Penzer (Estate & Trust Litigation); Ted A. Berkowitz and Patrick T. Collins (Bankruptcy: Business); Charlotte A. Biblow (Environmental); Heather P. Harrison (Employee Litigation: Defense); Domenique Camacho Moran (Employment & Labor); Jason S. Samuels (Construction Litigation); Louis Vlahos (Tax); and Joel R. Weiss (Criminal Defense: White Collar).

The firm also saw 10 attorneysselected to the 2016 New York Metro Rising Stars list. The attorneys and the practice areas for which they have been recognized are: Kathryn Carney Cole, Matthew D. Donovan, Franklin C. McRoberts, Adam M. Rafsky, Michael A.H. Schoenberg and Aaron E. Zerykier (Business Litigation); Brian P. Corrigan, Jaclene D’Agostino and Robert M. Harper (Estate & Trust Litigation); and Veronique A. Urban (Bankruptcy: Business).

Brian Corrigan recently joined the firm and was selected to the list while he was at his predecessor firm, Holland & Knight LLP.

Beth A. Scharpf (Estate & Probate) was selected to the list while she was an associate at Farrell Fritz. She is now an attorney at Wiggin and Dana in New York, NY.

This year marks Jack Barnosky’s tenth year on the Super Lawyers list. Jed C. Albert, Heather P. Harrison, Jason S. Samuels and Adam M. Rafsky were selected for inclusion for the first time this year. This is the fourth consecutive year James M. Wicks was selected to the New York – Metro Super Lawyers Top 100 list. The Top 100 group of lawyers received the highest point totals in the New York Metro nomination, research and blue ribbon process.

Having a mechanism for resolving disputes short of litigation is critical — particularly when working with foreign IT services providers. That’s why incorporating an effective arbitration clause into international outsourcing contracts is critical, writes Stephanie Overby for CIO magazine.

“Every international arbitration organization offers a standard clause IT service buyers can put into their contracts. Such clauses typically state that all disputes arising under or in connection with the agreement shall be resolved by arbitration under the rules of a specific international arbitration organization,” according to the article.

Overby quotes B. Ted Howes, partner and leader of Mayer Brown’s U.S. International Arbitration practice, “While such a standard clause is enforceable, more is required to make the arbitration clause workable and to minimize disagreements at the time of arbitration.”

Read the article.

The iconic jewelry store Tiffany & Co. is a model for trademark enforcement by aggressively and successfully policing its brand in the courts. Last year Tiffany & Co. filed litigation against Costco, claiming that the warehouse giant sold more than $6 million of ersatz Tiffany engagement rings and improperly used the jeweler’s name on at least 200,000 in-store signs. That trial began this week in federal court in New York, according to an article posted by Androvett Legal Media & Marketing.

Chris Schwegmann, a partner at Lynn Pinker Cox Hurst in Dallas, who focuses his practice on intellectual property litigation, says:

“This type of litigation not only discourages counterfeiters, but also ensures that Tiffany’s luxury brand doesn’t get diluted over time. I find it interesting that Costco argued that ‘Tiffany’ represents a generic term used to describe a ring setting, and not just a brand name. That’s a tough case to make against a company that aggressively defends its brand.

“If this case goes as I expect, it is unlikely that other companies in the industry will try to make the same the same arguments against Tiffany & Co., which is a benefit of aggressive trademark enforcement.”

Read more about the case here.

Bloomberg Law will present a half-day program and networking event called the Big Law Business Summit – West, designed as a unique forum for legal industry professionals to uncover new opportunities and solve for challenges to their businesses.

The event will be in Los Angeles on Oct. 27, 2016.

The Big Law Business Summit – West will feature keynote interviews, presentations and conclude with a networking event, the company says. The summit will explore trends, opportunities and challenges, and new developments that are impacting the business of big law – how services are delivered, how value is created for clients, and how firms and legal departments are evolving.

Register for the event.

Research conducted as part of a flagship report on human rights published in partnership with Herbert Smith Freehills shows that the growing importance of corporate human rights clauses is changing the way GCs operate, reports Legal Business.

A survey of 275 GCs and senior counsel found that 46 percent of businesses now have a human rights policy in place. For companies in the $10bn+ revenue bracket, that figure rises to 84 percent.

Reporter James Wood writes, “As Stéphane Brabant, co-head of Herbert Smith Freehills’ business and human rights group, commented: ‘Human rights are not a law-free zone for businesses. Failing to respect human rights presents real legal risks for companies and the way lawyers, both in-house and external, advise businesses requires a new way of thinking – this is a new legal practice.’ ”

Read the article.

Pam Bondi

Florida Attorney General Pam Bondi said she had no regrets about asking Donald Trump for money and no regrets about keeping the donation even after New York Attorney General Eric Schneiderman had filed a lawsuit against Trump University, reports the Associated Press.

“If I had returned it, you would have reported ‘Bondi accepted a bribe, got caught and returned it,'” Bondi said. “That’s how the reporting goes. And so, no, there was nothing improper about it. So there was no reason to return it.”

Reporters Gary Fineout and Michael Biesecker write that Rep. Ted Deutch, a South Florida Democrat and member of the House Judiciary Committee, said in a statement that “Bondi’s murky answers only raise more questions” that should be looked into by federal prosecutors.

Bondi’s office said at the time of the donation that it was “reviewing” the New York lawsuit, but it never took any other action.

Read the article.

Acacia Research Corp., the largest publicly traded patent-assertion entity, won a $22.1 million verdict against Apple, reports Ars Technica.

An East Texas jury found that Apple infringed US Patent No. 8,055,820, owned by Acacia subsidiary Cellular Communications Equipment LLC. Reporter Joe Mullin writes that the patent describes a method of how cell phones can use “buffer status reporting” so that phone networks can optimize data usage. The patent originated at Nokia, which sold the patent to Acacia in 2013.

Acacia, in the class of companies that critics refer to as “patent trolls,” buys patents from others, splits the proceeds from litigation with the original patent owner. Acacia-related entities have filed hundreds of lawsuits.

“The company used to advertise a 50/50 split with patent owners and inventors, but its specific arrangement with Nokia is unknown,” according to the report. “The verdict, reached last week, is a validation of Acacia’s increasing interest, announced a few years back, in buying portfolios of patents from large companies, rather than individual inventors.”

Read the article.

The ABC affiliate in San Antonio reports that in the last six years, lawyers working in the Greater San Antonio area have tripled the number of commercials they run on TV from about 50,000 to more than 180,000 a year, according to data from Nielsen AdIntel.

The flashy commercials have given some South Texas personal-injury lawyers a unique reputationm writes Josh Skurnik, citing the example of Jim Adler, who bills himself as the “Texas Hammer.” Adler can be seen in TV spots standing on semitrucks telling viewers he “will hammer the big trucking companies down to size.”

Adler told KSAT 12 how his script writers and directors helped him come up with the character:

“He agreed with them that he needed a more memorable character than his predecessor ‘Jim Adler, the smart tough lawyer.’ Through acting lessons, an eye for production and bilingual showmanship Adler said he became the grandfather of the unique style of personal injury advertising found in South Texas.”

And it worked.

Read the article.

Lex Machina, a LexisNexis company, announced two new applications – Courts & Judges Comparator and Law Firms Comparator – designed to compare courts, judges and law firms.

Courts and Judges Comparator enables attorneys to compare up to four federal districts and judges to gain critical insights regarding caseloads, timing to key milestones, case resolutions, specific findings, and damages, the company said in a release. Plaintiffs’ attorneys can use the app to compare multiple districts prior to filing, to select the one most likely to provide the most favorable outcome in the shortest amount of time. Defense counsel can use the app to make data-driven decisions about whether or not to pursue a transfer of venue and, if so, to which district.

Law Firms Comparator enables powerful side-by-side comparison of up to four law firms, with instant display of a broad range of case-specific data. Companies choosing outside counsel, and law firms competing for new business, can now compare actual results produced by law firms in their open and terminated cases.

The Center for Board Excellence is offering for free download a checklist aimed at modernizing directors and officers questionnaires. The checklist uses CBE’s cloud-based platform.

A company spokesman explained that the D&O form is uploaded by CBE to its secure platform and then is accessible from anywhere on any device.

Users can customize the questionnaire for respondents with prepopulated information. The number of questions can be reduced, providing for easier director completion.

And definitions and schedules are converted to dynamic flyovers or online links.

Download the questionnaire checklist.

The trustee for a bankrupt company decided to drop his lawsuit after watching his expert witness cross examined by an attorney from Ahmad, Zavitsanos, Anaipakos, Alavi & Mensing P.C.(AZA), clearing AZA’s clients of claims that they received fraudulently transferred company assets, the firm reports in a news release.

Rodney Tow, trustee for the estate of the Peterson Group Inc., a Houston real estate development company, had watched AZA’s John Zavitsanos examine his expert witness over whether Peterson Group was solvent and what company assets remained. The legal dispute involved a series of shopping centers and other properties worth more than $30 million.

The night of the expert’s failed testimony Tow informed Zavitsanos that he was completely dropping the case, which was in the third week of trial to a jury in the 269^th District Court in Harris County.

See a video and read about the case.

About one year after revelations surfaced that Volkswagen AG rigged its diesel cars to cheat emissions tests, it has somehow emerged as “the world’s biggest automaker” in the first six months of 2016, outselling Toyota during that period, according to a Bloomberg News report.

“Despite the fact that VW’s market capitalization dropped by as much as $32.6 billion amid the regulatory investigations and lawsuits that followed the scandal, there have been ‘no fire sales’ or unloading of assets at bargain prices to raise cash. Of course, VW and Porsche, which owns a majority of the company’s shares, face thousands of lawsuits in Germany from institutional investors that include BlackRock and the state of Bavaria, which could create billions of dollars in liabilities,” writes Bloomberg’s Gabe Friedman.

“A crisis can lead to the abyss, but it can also be a turning point,” CEO Mueller told about 20,000 employees gathered at the sprawling main factory in Wolfsburg this week. “At Volkswagen, the crisis opened doors for a real change of direction.”

Read the article.