Posts from May 2022.
Multiple Liability Policies and Who Pays First

Where multiple liability policies are triggered, does one of the insurers get to insist that its deductible be satisfied before the insured can be provided with a defense? Relatedly, can the insured choose which insurer should provide the defense?  

This situation arises frequently in cases where the underlying damage is “continuous or progressive.” Montrose Chemical Co. v. Admiral Ins. Co., 10 Cal. 4th 645, 662 (1995). In Montrose, the California Supreme Court held where there are successive policies, and where there is damage that is continuous or progressive across multiple ...

Posted in Legal Bites
FTC Proposes Updates to Endorsement Guides and Requests Public Comment

On May 19, 2022, the Federal Trade Commission (“FTC”) announced that it was considering changes to tighten its guidelines for advertisers against posting fake positive reviews or manipulating reviews by suppressing bad ones. The agency also warned social media platforms about inadequate disclosure tools. The FTC is seeking public comment on the proposed updates to its Endorsement Guides

The proposed updates include:

  • Revising the definition of “endorsements” to clarify that “marketing” and “promotional” messages can be endorsements. When a social media ...
California Minimum Wage Will Increase to $15.50

On May 12, 2022, Governor Gavin Newsom announced that California’s minimum wage is projected to increase to $15.50 per hour for all workers beginning on January 1, 2023. The accelerated increase is required by Section 246 of the California Labor Code, which was enacted in April 2016 through Senate Bill 3. That law provides that the minimum wage will increase according to a specified schedule when inflation exceeds 7 percent. Newsom’s press release states that “[t]he COVID-19 pandemic has resulted in persistent supply chain disruptions and labor market frictions have driven ...

Employer Alert:  DFEH Updates Required Employment Posters and Pamphlets

The California Department of Fair Employment and Housing (DFEH) has updated a number of posters and pamphlets that California employers must post or distribute to employees. Employers should take note to use the most recent versions of these required documents.

All California employers are required to display the following poster, which was recently updated:  California Law Prohibits Workplace Discrimination and Harassment (PDF)

Additionally, California employers with at least five employees must display these three other posters, which were also recently updated:

    Posted in Legal Bites
    Ninth Circuit Panel Upholds Foie Gras Ban in 2-1 Panel Decision

    On May 6, 2022, a panel of three judges in the Court of Appeals for the Ninth Circuit considered a challenge to California’s ban on foie gras. The law has been heavily litigated for nine years, including three sets of appeals before the Ninth Circuit.

    The panel ruled 2-1 that the foie gras ban was not preempted by federal law and did not violate the dormant Commerce Clause.

    California Health and Safety Code §25982 provides that “[a] product may not be sold in California if it is the result of force feeding a bird for the purpose of enlarging the bird’s liver beyond normal size.”  The ...

    Mind the Proper Use of ‘Prior Knowledge’ Exclusions

    Liability insurance written on a claims made basis is designed to protect an insured against claims asserted following the policy’s inception even if the acts giving rise to the claim took place prior to policy inception. But if prior to policy inception the insured was aware of facts or circumstances that could have reasonably led the insured to believe a subsequent claim would be asserted during the policy period, then coverage might be challenged.

    Liability carriers have sought to address this by including “prior knowledge” exclusions in their policies. Under those ...

    Posted in Legal Bites
    Court Approves $15 Million Settlement in Godiva Product Origin Lawsuit Over Objections from State Attorneys General

    On April 20, 2022, a $15 million class action settlement was approved by the court in Hesse, et al. v. Godiva Chocolatier, Inc., over the objections of multiple State Attorneys General.

    Plaintiffs alleged that the company’s use of “Belgium 1926” as a marketing phrase led consumers to believe that chocolates were produced in Belgium rather than in Pennsylvania. Plaintiffs claimed that this marketing phrase violated state consumer protection laws and that consumers would not have purchased or not have paid as much for the chocolates if they knew they were not made in Belgium.

    In ...

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