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Symposium 2016

Symposium Workshop Offers Practical Insights

by ~ John E. Matosky (Email) (Web Site)

Once again, the liveliest portion of this year�s symposium was the workshop. During this interactive session, symposium attendees and MReBA members discussed and debated issues related to the morning�s presentation on the attorney/client privilege in the context of a reinsurance claim. The exercise culminated in a mock argument about whether the cedent and reinsurer would need to respond to subpoenas issued in a class action filed against the original insured, requesting that they produce their respective claim files, including documents received from the insured and communications with coverage counsel.

Participants received a fictional fact pattern involving a pharmaceutical company that manufactured and sold a weight loss drug. Customers of the drug commenced a class action against the manufacturer to recover for injuries they allegedly suffered as a result of side effects, some of which were not warned against. The manufacturer tendered the lawsuit to its insurer seeking defense and indemnification. Eventually, the insurer notified its reinsurer. Of course, as is the nature with such exercises, the fact pattern included additional details that presented few obvious choices for each of the parties.

To assist in spotting issues and planning strategies, the participants were organized into groups, and MReBA members, Alex Henlin (Edwards Wildman Palmer LLP), Nick Cramb (Mintz Levin Cohn Ferris Glovsky and Popeo, P.C.) and Rob Whitney (Massachusetts Division of Insurance) acted as counsel and group facilitators for the insured, cedent and reinsurer groups, respectively. Bill Erickson (Robins, Kaplan, Miller & Ciresi, L.L.P.) moderated the discussion and played the role of class action counsel.

At every stage of the exercise, each group was confronted with the tension between sharing helpful information and withholding harmful information while complying with contractual cooperation and access provisions in their agreements. Also in the mix, of course, was the need to preserve the attorney-client privilege.

The groups had their individual goals. For the manufacturer, the goal was to maximize coverage under the two available policies while shielding information that may have suggested a late notice or known-loss defense to its insurer. For the cedent, the goal was to deny coverage based on policy defenses or, short of denial, to restrict coverage to a policy period for which reinsurance was in place. The cedent also wanted to avoid disclosing information that may lead the reinsurer to question the cedent�s coverage position, including information with respect to which policy or policies covered the loss. The reinsurer wanted full disclosure from everybody, but recognized the parties￁ common interest to withhold as much information as possible from the class action plaintiffs. This shared concern shone through counsel�s arguments for quashing the subpoenas in the class action.

The participants who sat as judges for the workshop clearly comprehended the complexity of the issues at hand. They decided to appoint a special master for discovery.

As this often entertaining exercise demonstrated, in �real life,￁ the complex issues are rarely resolved by a simple answer. Understanding the issues and the different perspectives of the parties, however, can help to avoid conflict.

John Matosky may be reached at
￁ 2011 Prince Lobel Tye LLP. All rights reserved. The views and opinions attributed to speakers at the Symposium do not necessarily reflect the views of their respective companies, law firms, or clients, or any of their members, affiliates, shareholders, or managers.Buying miu miu bags,replica omega watches,replica bell & ross watches and bvlgari replica watches online can save you big.

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