Engagement Letter Defense Rejected

We often write about the importance of engagement letters, in fact we have an entire sub-category devoted to engagement letter defenses. That's because the engagement letter is the first line of defense. A letter that clarifies the accountant's obligations, scope of duties, identity of the client, billing terms and other key clauses is generally a must for most engagements. Accountants may also opt to include exculpatory language such as limitation of liability provisions, damages caps, or other contractual language which may aid in the defense of a lawsuit. Yet, according to a recent decision, the clause was not enforceable because it was not explicit and clear.
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No Coverage for the Guilty

We know this, but many of our clients don't: coverage is tricky. There are aspects of an insurance contract which may cut against instincts and societal expectations. For example, there are coverage implications when an insured apologizes for a perceived mistake. Anything that potentially jeopardizes the defense, including anything that can be perceived as an admission of liability, may result in a coverage denial. Along those lines, a recent decision highlights the coverage implications of a guilty plea in criminal proceedings.
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Duty to Defend Wire Fraud

In Quality Sausage Company, LLC, et al v. Twin City Fire Ins. Co., Civil Action No. 17cv111 (S.D. Texas, Sept. 18, 2019), one of the plaintiff corporations (Plaintiff) fell victim to a fraudster who submitted fraudulent wiring instructions via email to Plaintiff on behalf of one of Plaintiff's clients. Per those wire instructions, Plaintiff improperly transferred $1 million from the client’s account to the account of a sham company. Uh oh.
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New AOM Notices in NJ

Over the years, we've shared a bunch of posts regarding the nuances of Affidavit of Merit (AOM) requirements in professional malpractice actions. Of course, many states have enacted some version of an AOM requirement and we've discussed the significance and potential advantages from a defense perspective when a plaintiff fails to comply. By strict rule of law, the failure to timely submit an AOM should signal dismissal, but does it in practice? Does it seem like courts are a bit too lenient in permitting a malpractice claim to proceed despite a violation of the AOM requirements?
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AOMs and Nursing Home Litigation in NY

Many jurisdictions require some version of an affidavit of merit (AOM) in order to proceed with a malpractice claim. (Here's a helpful 50-state survey of AOM requirements LINK). In New York, CPLR §3012-a requires an AOM to accompany the complaint for all medical malpractice actions. Specifically, this affidavit has to declare that an attorney has reviewed the facts of the case, and has consulted with at least one physician, and that there is a reasonable basis for the commencement of the action. This requirement ensures that there is at least some legitimate basis for proceeding this the lawsuit, and can serve to reduce frivolous litigation.
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Parental Leave Continuance Policy Rejected

Case management is such an important task for litigators. We must plan how best to utilize the allotted and often limited time provided for each case. Some courts set strict case management deadlines while others permit the parties to proceed at their own pace without much direction. We must budget our time in an efficient and reasonable manner. We must also balance our personal commitments with the needs of our clients and that is no easy task. Ultimately, all attorneys have faced scheduling conflicts due to personal commitments: vacations, appointments, and family obligations. What about the birth of a child? The Florida Supreme Court recently considered, and rejected, whether to adapt a policy to stay litigation during an attorney's parental leave.
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Virtual Big Brother: Monitoring Employees

Data is everywhere. We're being tracked in the car, in the grocery store, even when we're walking the dog. As I write this, I'm being monitored as well, through employee monitoring administered by my firm's I.T. department. This may help to prevent cyber-crime, as well as assisting with productive, employee locating and resources usage. Reportedly, effective employee monitoring systems can help productivity and therefore benefit the bottom line. However, it can also create problems with the employment environment. This is an important balance for all employers: to effectively monitor employee activity in a trusting and comfortable manner.
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Turning up the Heat on Employers

It's hot outside. The rising temperature has implications for employers, specifically the responsibility to monitor employee health. The ramifications of heat related employment issues span from loss of productivity and morale issues to injuries and even death. From a strict legal standpoint, OSHA has regulations governing occupational heat exposure. Moreover, there are risk management tools to consider for all employees exposed to extreme heat.
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Documentation Saves the Day in Retaliation Suit

When facing a wrongful termination/retaliation claim, the organization and detail of an employer's files will be put to the test. In a recent decision, an employer maintained well-documented, detailed files which helped to prove that a termination was not retaliatory. In Lacey v. Norac, Inc., the Eighth Circuit Court of Appeals affirmed summary judgment to an employer in a retaliation claim under Title VII based on allegations that the employee was terminated for refusing to sign an affidavit on the employer’s behalf.
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