Litigation

New York Law Journal

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'Pippins' and the Proportionality Debate

Pillsbury Winthrop Shaw Pittman's Wayne Matus, John Davis and Peter Ostrovski write: The obligation to preserve potentially relevant documents when litigation is reasonably anticipated is well-settled and well-known. However, the scope of that obligation is not clear. Should the concept of proportionality apply to preservation obligations? And, if so, how do you apply it? U.S. District Judge Colleen McMahon of the Southern District of New York recently added her views to the debate, providing useful lessons in evaluating and applying proportionality analysis to preservation obligations.

New York Insurance Bad Faith and Deceptive Practices Claims

Scott D. Greenspan, Jeffrey M. Winn and James Mirro of Sedgwick write: Most insureds who sue to collect insurance benefits contend that the insurer has engaged in a breach of contract. The recent trend, however, has insureds increasingly alleging tort or statutory-based claims, designed to obtain extra-contractual damages, such as the attorney fees incurred in establishing policy coverage. A survey of New York law indicates that three types of bad faith claims have been recognized, including excess verdict claims, disputed coverage claims, and statutory claims.

Defending Against an Award of Attorney Fees

David Leichtman, a partner at Robins, Kaplan, Miller & Ciresi, considers the effect that strong proof of access to a copyrighted work has on a court's determination of whether to award attorney fees to a successful defendant who prevails on the merits notwithstanding the strong proof of access. Absent a rule to this effect, copyright owners, and in particular impecunious ones, have little incentive to vindicate their rights, and may even be deterred from seeking to bring meritorious claims.

Where (Literally) Is the Deception?

John M. O'Connor and Anna M. Piazza of Anderson Kill & Olick write that the Court of Appeals' holdings on the territorial reach of the consumer protection statute have spawned two divergent lines of cases: one where the focus is on the location of the consumer and where the deceptive action occurred, even if the defendant can be shown to have numerous ties to New York, the other asks whether "some part" of the transaction has occurred in New York, even if the plaintiff is located out of state.

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