The central theme is to present a concise and practical overview of recent developments in important and frequently litigated areas which often arise in the business and commercial context.
A knowledgeable faculty will address current business tort issues, including practical considerations, counseling tips and trial techniques.
- Advertising injury/personal injury coverage
- Non-compete agreements and trade secrets: Protecting corporate assets
- The current state of punitive damages after Campbell: In the soup?
- Litigation and trial strategy in business torts including real estate and professional liability cases
9:00 a.m. - 11:00 a.m.
I. Advertising Injury/Personal Injury Coverage
A. 1976 ISO CGL
B. 1986 ISO CGL
C. 1998 ISO CGL
D. 2001 ISO CGL
II. Opportunities For Coverage In Business
A. Proper Provision Of A Defense For Various Kinds Of Business Torts
1. Trade Secret
2. Unfair Competition /Antitrust
3. Breach Of Fiduciary Duty
7. Malicious Prosecution
III. Impact Of Exclusions On Coverage
A. First Publication Exclusion
B. Knowledge Of Falsity Exclusion
C. Intellectual Property Exclusion
D. Intentional Harm Exclusion
IV. Insurer Obligations To Fund A Defense
A. Litigation Goals
B. Defense Fee Rates
1. Reasonableness As The Predominate Standard (Policyholder Perspective/Insurer Perspective)
a. How Determined?
b. How Applied?
2. Civil Code § 2860 – Panel Counsel As The Template (Policyholder Perspective/Insurer Perspective)
a. Where Suit Is Pending In California
b. Where Suit Is Pending Outside Of California
3. Right To Independent Counsel (Corporate Perspective/Policyholder Perspective/Insurer Perspective)
C. Defensive Counterclaims: Who Pays?
1. Can A Carrier's Affirmative Obligation To Defend Include Legal Fees Incurred In Connection With Pursuit Of Counterclaims Where That Conduct Is Defense Related?
2. What Is The Standard? Does It Differ Nationally? If So, What Is The Emerging Modern Trend?
3. Whether Downsized In Various Jurisdictions To Insurers Who Seek Allocation Of Such Fees And Refuse To Pay Until Same Is Negotiated?
V. Insurer Obligations To Fund Settlements
A. Obtaining Significant Insurer Contribution To Settlements
VI. Insurer Obligations To Fund Indemnity
A. Indemnity Obligations
1. Where Claims Asserted Are Covered And Not Covered
3. Where Only A Defense Is Owed But No Indemnity
4. Where No Damages Are Likely To Arise At Trial
5. Where Damages Are Likely To Arise At Trial
VII. New Policies
A. Proper Insurance Product Acquisition
11:00 a.m. - 11:15 a.m.
11:15 a.m. - 12:15 p.m.
VIII. Non-Compete Agreements And Trade
Secrets: Protecting Corporate Assets
A. California's Uniform Trade Secrets Act: Policy, Scope And General Limitations
B. California Business And Professions Code 16600: The Prohibition And Trade Secret Exception
C. What Corporate Assets Are At Stake?
D. A Typical Scenario Where The Policy Underlying Both Statutes Collide
E. What Legal Limits Can Be Imposed On The Employee Of Company A In Light Of B And PC 16600?
F. Some Unenforceable Covenants Not To Compete
G. What's A Company To Do To Protect Itself And Not Run Afoul Of B And PC 16600?
1. Some Statutory Provisions To Protect Companies Discussed Here
2. Alternatives To Non-Compete Provisions
H. Discussion Of Some Recent Decisions Which Discuss How State And 9th Circuit Courts Have Handled The Issue
12:15 p.m. - 1:15 p.m.
Lunch (On Your Own)
1:15 p.m. - 2:15 p.m.
IX. The Current State Of Punitive Damages
After Campbell: In The Soup?
A. The Courts' Historical Approach To Punitive Damage Issues
B. State Farm v. Campbell And Related Cases
C. A Narrower But More Complex Playing Field
D. Strategies For Minimizing Punitive Damage Awards
2:15 p.m. - 2:30 p.m.
2:30 p.m. - 4:15 p.m.
X. Litigation And Trial Strategy In Business
Torts Including Real Estate And Professional
A. Professional Liability In The Area Of Business Torts
B. Business Torts In The Real Estate Context
C. Planning And Implementation Of An Effective Litigation Strategy In Business Torts Cases
4:15 p.m. - 4:30 p.m.
XI. Questions And Answers