Two of the most common, albeit frequently abused, claims in business lawsuits are “fraud” and “conspiracy.”  Despite their pejorative connotation, all too often both go down in flames at or before trial.

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On Wednesday, June 27th, Associate Justice of the Supreme Court Anthony M. Kennedy, 81 and an appointee of President Reagan, announced his intention to retire from the Court after over thirty years of service.  Over the course of his tenure, but especially after the 2006 retirement of Justice Sandra Day O’Connor, Justice Kennedy earned a well-deserved reputation as a swing voter.  His majority opinions gratified and confounded legal scholars across the legal spectrum on a host of hot-button issues, along with his colorful prose on the meaning of the Constitution and the individual’s role in our constitutional order.   

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Businesses frequently find themselves in legal disputes with insurers about whether a loss is covered under the insurance policy.  Among the many recurring debates between insurer and insured is whether an insured “knew” about the loss prior to initiating insurance coverage.  The legal rule prohibiting insurance coverage of existing losses is the “known-loss doctrine” or “loss-in-progress doctrine,” and has been described by courts as the common-sense rule that, “one may not insure against loss of a building after the building has burned down.” Travelers Cas. & Sur. Co. v. Neth. Ins. Co., 312 Conn. 714, 748, 95 A.3d 1031, 1054 (2014).  While the prudence of this legal rule is easy to understand, its application is complicated.  As a result, many businesses and individuals may be leaving valuable insurance dollars on the table by not understanding how courts determine whether an insured “knew” of a loss.

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Having worked a lifetime to build your personal wealth, at some point you make the decision to plan for the transfer of your property to the next generation. To avoid leaving it to a court to determine who will receive the benefits of your life’s work, you decide to create a trust so you can designate a trustee who will help transfer your estate to the beneficiaries you select. Over time, you amend your trust to reflect changing personal and financial circumstances and you might add beneficiaries as your extended family grows. Ideally, the trustee and the beneficiaries will all share in your understanding about how your estate should be distributed upon your passing. But what if a beneficiary of your original trust, in an attempt to obtain a larger share of your estate, files a lawsuit claiming you were manipulated into creating trust amendments that benefitted others? Is there anything you can do to prevent disputes like this from arising?

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This week, California labor relations were rocked again … this time by a seismic change in how California courts will decide who is an employee and who is an independent contractor.  The distinction is crucial since, among other things, employees are protected by a vast number of laws and wage protection benefits whereas, generally speaking, independent contractors are not.

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