New Bill In New York Proposed for Signature by Governor Andrew Cuomo is Set To Make Employers “SWEAT”
“Under the Radar Emerging Risks,” CLM Magazine, May 15, 2019, quoted answering the question: What do you believe are the emerging risks today?
“Is There a Lawyer in the House? Issues Presented by Non-Lawyer Representatives in FINRA Securities Arbitrations,” CLM Litigation Management Magazine, March 6, 2017.
“Call Me, Maybe: Update Regarding Liability for Debt Collection Phone Calls Under FDCPA,” Professional Liability Advocate, February 17, 2015.
“Loophole Leaves Insurers Powerless Against Fraud,” New York Law Journal, December 1, 2014.
“A Check in the Win Column for Broker-Dealers,” Professional Liability Advocate, September 16, 2014.
“Eastern District of New York Adopts ‘Express Train’ Discovery Schedule to Ensure Expeditious Resolution of Sandy-Related Coverage Suits,” Client Alert, April 24, 2014.
“Temporary Insurance Applications and Agreements: The Impact of Material Misrepresentations in Life Insurance Applications in Coverage,” FC&S Legal, December 10, 2013.
“Important ERISA Holdings from Hobson v. Metropolitan Life Insurance Company,” ERISA Client Alert, February 15, 2010.
“Recent Decision Regarding SOLI Practices in the Southern District of New York,” Life Insurance Client Alert, February 5, 2008.
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Trial & Appellate Results
Arbitrio Wins Disability Insurance Policy Language Dispute in U.S. Court of Appeals
January 30, 2015
Michelle Arbitrio (Partner – New York) obtained a dismissal before the U.S. Court of Appeals for the Second Circuit, in a case in which the plaintiff alleged wrongful denial of his request for long-term disability benefits by Arbitrio’s client, pursuant to ERISA. Arbitrio moved for summary judgment in District Court on the ground that the action was time-barred by language in the policy requiring that policyholders commence legal actions within three years of the date that a proof of loss is due under the policy. The plaintiff argued that the policy language was ambiguous and not permissible under New York law, which has a six-year statute of limitations for breach of contract actions. The District Court initially agreed with Arbitrio’s arguments and granted summary judgment. The plaintiff subsequently made a motion for reconsideration, which was denied. Plaintiff then appealed to the Second Circuit. Arbitrio argued that, when afforded its plain meaning, the policy language is clear and unambiguous and that New York Courts have consistently held that parties can contract to reduce the statute of limitations from six years to three years. After oral argument, the U.S Court of Appeals agreed with Arbitrio and upheld the District Court’s decision.
Arbitrio Obtains $1.3 Million Verdict for Fortune 500 Client
April 2, 2014
Michelle Arbitrio (Partner – New York) obtained a verdict in the Supreme Court of Danbury, CT, on behalf of her client, a Fortune 500 international electronics corporation, for $1.3 million in a commercial contract dispute involving solar energy panels.
The defendant, a solar energy company, purchased solar panels from plaintiff, Arbitrio’s client. The defendant paid a small deposit for the panels but refused to pay the balance of more than $1 million, claiming that the panels were defective. As a result, Arbitrio brought suit against the solar energy company alleging breach of the terms of a written contract for the purchase and sale of solar panels. The defendants brought counterclaims for rescission and violations of the Connecticut Unfair Trade Practices Act.
At trial, Arbitrio presented documentary and testimonial evidence that the electronics company delivered solar panel units to the defendants, and that the solar panels met the specifications for energy output outlined in the contract and marketing materials. In addition, Arbitrio established the validity and enforceability of a ‘personal guaranty’ addendum to the contract signed by the owner of the solar energy company, enabling them to hold the owner of the defendant company personally liable.
Arbitrio Wins Motion to Intervene and Enforce Class Action Settlement in Iowa Federal Court
December 20, 2013
Michelle Arbitrio (Partner – New York) won a motion to intervene and enforce a class action settlmenet on behalf of a securities broker in a matter venued in the United States District Court for the Southern District of Iowa, Central Division.
Initially, the claimant commenced a securities arbitration in the Financial Industry Regulatory Authority (“FINRA”) against the respondents, a broker-dealer and one of its registered representatives, alleging that the respondents recommend that the claimants purchase securities products that were overly risky and illiquid, and therefore unsuitable for his risk tolerance and financial status.
Following discovery, the respondents learned that the claimant had already been part of a class action lawsuit against the same broker-dealer involving different securities products. After further investigation, the respondents learned that the class action settlement agreement included language precluding the claimants from bringing claims against the broker-dealer and/or its agents relating to any securities products sold to him through the date of the agreement.
Based on this information, Wilson Elser moved to intervene in the class-action lawsuit, moved to enforce the terms of the class action settlement and requested a permanent injunction enjoining the claimant from pursuing the FINRA action. The Claimants opposed the motion, alleging that the release language in the class-action settlement agreement did not cover the situation at issue, or in the alternative the language was overbroad and unconscionable. After a hearing, the court granted a permanent injunction precluding the claimants from pursuing the claims.
Arbitrio Wins Award on Behalf of Securities Broker Client
December 23, 2013
Michelle Arbitrio (Partner – New York) obtained a defense award on behalf of her client, a securities broker, following an arbitration held in Milwaukee, Wisconsin. The award was featured in ArbCheck Reporter, a widely read publication in the securities industry.
The claimants brought a FINRA arbitration seeking compensatory damages in excess of $780,000 against Arbitrio’s client, three other brokers, and their broker-dealer. The claimants alleged that the respondents breached their fiduciary duties by failing to disclose material facts concerning the opening and closing of several brokerage accounts, and the purchase and sale of variable annuities. After a four-day hearing, the panel dismissed the claimants’ claims with prejudice in their entirety and stated in part:
The evidence introduced at hearing gave no indication that respondents violated any law, regulation or duty owed to claimants. The evidence also showed that claimants suffered no economic loss because of respondents management of their accounts, but instead gained value during the time period covered by the claims. Accordingly, claimants failed to demonstrate entitlement to monetary damages, and their claims were determined to be false.
The panel also recommended that all references to the claims be expunged from the brokers’ records.
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Events, Seminars & Presentations
“Emerging Risks for Insurance Agents and Brokers – Know Thyself and What You Sell/Buy,” Professional Liability Defense Federation Annual Conference,” Chicago, IL, September 27, 2019.
“Professional, D&O and EPL Issues Relating to Mass Shootings,” CLM’s 2019 Cyber, Management & Professional Liability Conference, Boston, MA, July 11, 2019.
“Miscellaneous Professional Liability: Insuring the New and Unknown,” CLM Webinar Series, Jersey City, NJ, March 28, 2019.
“Tangible Strategies for Combatting Unconscious Bias in the Workplace without Risking Backlash,” 3rd Annual Women in Insurance Leadership Execusummit, Uncasville, CT, March 6, 2019.
“Insurance Agents – Liability to Insurance Agents/Brokers – Life Agent Twisting Claims,” 12th Annual E&O Liability ExecuSummit, Uncasville, CT, June 20, 2018.
“Miscellaneous Professional Liability – Insuring the New and Unknown,” 11th Annual E&O Liability ExecuSummit, Uncasville, CT, June 20, 2017.
“Employment Law Update: Developments in LGBTQ Discrimination Cases,” National Employment Law Defense Counsel Summit, Philadelphia, PA, May 11, 2017.
“Drafting and Enforcing Effective Non-Compete Agreements and Trade Secret Protections,” Target Markets Program Administrators Association Annual Conference, Arlington, VA, April 19, 2016.
“Ethics and E-Discovery,” CLM Presentation, Kansas City, KS, April 13, 2015.
“Securities Update: A Discussion Regarding the New FINRA Suitability Rule, REITS, TICs and Private Placements,” CLE/CE Presentation, New York, NY, March 12, 2013.
“Securities 101: An Introduction to FINRA Arbitrations,” CLE/CE Presentation, New York, NY, October 29, 2013.
“Navigating Mediation and Settlement,” CE/CLE Presentation, Berkeley Heights, NJ, January 15, 2008.
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Professional Liability Defense Federation (PLDF), Chair of the Insurance Agent / Broker Claims Committee
Breadwinners Foundation, Board of Directors
New York State Bar Association
DRI: The Voice of the Defense Bar
Professional Liability Underwriting Society (PLUS)
Claims and Litigation Management Alliance (CLM)
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