Category Archives: Litigation

The 20% Rule: An Emerging Theory of Liability Under the FLSA

By: Eric B. Moody Employers are no doubt familiar with the Fair Labor Standards Act (“FLSA”), but may not be aware of an emerging theory of liability under the FLSA that affects employers with tipped employees.1 This new cause of action is based on a United States Department of Labor handbook that states a tipped Read More…

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Repeal of the McCarran Act Would Roil the Insurance Industry

By: David C. Borucke The business of insurance is insulated from the full weight of antitrust law under the McCarran-Ferguson Act (the “McCarran Act”).1 This statutory protection, however, may soon disappear. Multiple bills to repeal the McCarran Act are pending in the 114th Congress, with some bi-partisan support. If the McCarran Act is repealed, for Read More…

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FINRA Arbitration and Emerging Trends

FINRA arbitration, the mandatory dispute resolution forum for brokerage firms, is experiencing an all-time low in new case filings. Positive market conditions have influenced the number of new customer claims filed against registered representatives and FINRA member firms. Generally, case filings decrease when the markets perform well and increase when the markets perform poorly. Obviously, Read More…

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Does Your Exculpatory Contract Say The Magic Words?

Cole, Scott & Kissane has highly trained attorneys who focus on the defense of the fitness, travel and entertainment industries.  Quite often, these industries offer facilities or services to the public or to private members that involve a heightened risk of sustaining personal injuries.  As a means of reducing potential exposure to personal injury claims, Read More…

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The Legal Implications of Cell Phone Use While Driving

By Melissa D. Crowley, Esq. As the prevalence of sending emails, texting, posting on social networks, and making calls from smartphones while driving has increased, the legal implications for doing so has increased as well. One government study found that more than two-thirds of adult drivers in the United States reported talking on their cell Read More…

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Defending the Insured Under a Reservation of Rights

By David S. Harrigan, Esq. Insurers providing coverage under a standard CG 00 01 insuring agreement obligate themselves to “pay those sums that the insured becomes obligated to pay as damages because of ‘bodily injury’ or ‘property damage’ to which [the] insurance applies.” In doing so, insurers assert the “right and duty to defend the Read More…

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Proposals for Settlement and the New Breed of Strict Construction

By Kathryn L. Ender, Esq. Proposals for settlement have become common-place in litigation as a strategic means to engage settlement, and as a feeshifting mechanism in the event settlement reaches impasse. Florida Rule of Civil Procedure 1.442 governs the content of proposals for settlement. Although a rule of procedure, the Florida Supreme Court has definitively Read More…

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Accountants: Do Not Let Your Best Marketing Tool Become Your Worst Nightmare in Litigation

In this digital age, almost every accounting firm has an attractive website which touts the firm’s expertise and experience in a wide range of services. Accounting firms recognize that an impressive website can be an effective marketing tool to prospective clients, and can also assist current clients in determining additional services which the client may Read More…

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The Long Arm of Punitive Damages

Punitive damages are frequently sought in all types of tort claims.  Punitive damages are those damages that are intended to punish or deter a defendant and others from engaging in willful or wanton conduct. Since they are designed to punish and deter, punitive damages are not used to make the plaintiff whole.  As such, punitive Read More…

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Right Waiver? No Problem. Wrong Waiver? Problem.

In the summer of 2008, Makimba Mimms, a former Navy information systems technician, sued a Manassas, Virginia gym alleging that he sustained permanent disabilities in the form of rhabdomydysis (very rapid breakdown of muscle fibers) as a result of performing a “Crossfit” workout in 2005 involving timed, high intensity strength training with little to no Read More…

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