This post is about an article that I read entitled “Be Prepared for the Inevitable Process Safety Attack” which discusses new plaintiff allegations and attacks on business safety processes in litigation to obtain enhanced damages. The article was in http://www.corpcounsel.com which has regular worthwhile information and materials. You can also see the text version of this discussion posted below the following video.

The gist of the article is that in an increasing number of cases, such as catastrophic accidents, in addition to seeking recovery for the injuries under traditional tort or products liability causes of actions plaintiffs are also seeking to allege wrongdoing or liability for improper or inadequate safety processes.

With these types of allegations plaintiffs hope to bring into evidence not only the facts of the specific incident that occurred but also any similar past accidents, or warnings, and company safety practices and processes, risk management and safety culture. And plaintiffs are using these allegations to support claims for not just negligence, but also gross negligence and possible punitive damages.

These actually aren’t new approaches to alleged liability, but apparently their use is on the rise in situations where the opportunity presents. I view it as essentially an allegation that an accident was just waiting to happen.

Some of these issues are appropriate for involvement by executive management and some board or board committee oversight.

The upshot for my friends in the risk management, compliance, safety, internal audit, governance and ethics functions that it presents an opportunity for the design, implementation, monitoring and reporting about processes in these areas.

For example, the article noted these types of allegations being alleged in the BP oil spill accident.

The fact that an accident or negative event occurs doesn’t mean that someone was negligent or should be liable. But allegations that this wasn’t simply an accident, but that it was or should have been anticipated can be very persuasive to the jury. But risks and accidents cannot necessarily be anticipated or prevented.

This could also lead us into a discussion about the use of the terms risk appetite or risk tolerance, which are terms that might be used in risk management. I have previously expressed my dislike of these terms because although I understand the manner in which they are used, to the jury they could imply an attitude of acceptance of injury. This will be a discussion for another time.

That’s it for now.

Dave Tate, Esq.

Blog posts and videos emphasizing new developments, people’s actions, the crossover in legal, risk, governance, business, accounting and other topic areas, and what it means. Please follow this blog by clicking “Follow” to the left, and you can find my LinkedIn, Twitter and other connections by clicking on the “About This Blog, Me, And My Connections” link above and to the left. Enjoy. Dave Tate, Esq. (and inactive CPA).

This week in one of my cases in which we represent an insurer seeking subrogation recovery, after briefing and oral argument, the District Court, Eastern District of California, denied defendants’ omnibus motions to dismiss and strike our Complaint which we filed on behalf of our insurance carrier client in an environmental waste subrogation recovery action.

The Complaint alleges claims under CERCLA (sections 112 and 113), the California Hazardous Substance Account Act, and common law equitable indemnity, apportionment of fault, contribution and subrogation.   In summary, our insurance carrier client paid substantial money on behalf of its insured to cleanup an environmental waste spill – the subrogation action is to recover the costs incurred from the actual parties that are alleged to be at fault for causing the spill.

In their motions to dismiss and strike defendants argued every imaginable argument possible, including, for example, issues relating to standing as a claimant, defendants’ arranger and/or transporter status, satisfying CERCLA section 113 requirements that there be either current or prior litigation or administrative or judicially approved settlement that resolves liability to the United States or a State, allegations of agency between the various defendants, whether the waste oil was a “hazardous substance” or subject to the petroleum exclusion, consistency or not inconsistency with the national contingency plan, preemption, and on and on. 

After lengthy oral argument at hearing the Court issued its Memorandum and Order denying both the motion to dismiss and the motion to strike in their entirety. The Judge’s Memorandum and Order essentially follows all of our arguments and citations in opposition to the motions.

As you may be aware insurer environmental subrogation continues to be a developing and sometimes complicated area of law including for example the important Ninth Circuit 2013 decision in CHUBB Custom Ins. v. Space Systems/Loral, Inc.  Federal statutory, state statutory and state common law claims differ, and it remains important that standing be established, procedural requirements are followed, necessary demands are timely made, and costs are incurred for appropriate environmental waste cleanup expenses that are not inconsistent with the national contingency plan and with appropriate approval and settlement and release from liability.  There also remain unresolved legal issues in the area of environmental subrogation litigation.

The case now continues with disclosures and discovery.

Have a great day. Dave Tate

This video is about new SEC actions for alleged violation of books, records, accountants, and internal controls requirements – issues and opportunities.

Blog posts and videos emphasizing new developments, people’s actions, the crossover in legal, risk, governance, business, accounting and other topic areas, and what it means.  Please follow this blog by clicking “Follow” to the left, and you can find my LinkedIn, Twitter and other connections by clicking on the “About This Blog, Me, And My Connections” link above and to the left.  I also expect that with some recent upgrades and changes in my studio I will be moving toward color backgrounds, and then eventually to green screen and other enhancements which I have been experimenting with for a while.  Enjoy. Dave Tate, Esq.

Blog posts and videos emphasizing new developments, people’s actions, the crossover in legal, risk, governance, business, accounting and other topic areas, and what it means. This video is about the development in non-GAAP accounting alternatives for private companies, and possibly nonprofits and benefit plans. Please follow this blog by clicking “Follow” to the left, and you can find my LinkedIn, Twitter and other connections by clicking on the “About This Blog, Me, And My Connections” link above and to the left.  Enjoy. Dave Tate, Esq.

Click on the following link for my scoop.it paper which compiles current developments on law, risk, governance, business and people, Tate Talk – Law, Risk, Governance, Business and People | Scoop.it.

Dave Tate, Esq. (San Francisco)

While watching the Cardinals beat the Seahawks (yes, pretty unbelievable) today I was looking for a business insurance or risk management article of interest to share. And I was on insurance broker and consultant Charles Wilson’s website. I receive and read Charles’ RiskSmart Tips. I came across Charles’ article (actually an article by Charles’ son) about Charles’ experience with West Nile Virus. The topic of this post is unusual for me – I thought that you might will find the very short story worth reading – because you just never know. Here is the link to Charles’ experience, Click Here.

And here is the link for Charles’ RiskSmart Solutions website, Click Here.

Have a Merry Christmas, and a happy, safe and prosperous New Year.

Dave Tate, Esq.

As a litigation attorney who is also a certified public accountant, I am looking to connect with carriers and businesses that are looking for attorney representation in litigation cases that involve profit & loss, financial fraud, accounting, royalty, or numbers, etc. related issues, and also trustee/fiduciary duty liability cases – please view the video:

There have been several new developments and materials produced during this past week or so relating to boards, risk, audit committees and strategy. The following are three of them:

1. The Financial Reporting Council (FRC) has published for consultation changes to the UK Corporate Governance Code, guidance for boards of listed companies and standards for auditors covering risk management and reporting – supplementary guidance for directors of all banks is also being issued – click here for the announcement and background discussion.

And, click here, for the detailed Consultation Paper.

I will be following and reporting further about this development. In recent times we have seen increasing discussions about risk management, and in some instances specific new regulations such as I discussed in my not-so-long-ago post about new offshore drilling 24/7 risk management and employee risk involvement requirements. I am convinced that education and public discussion about risk management needs to increase, and that risk management practices need to further develop and improve, and be implemented, hopefully voluntarily.

Also consider using the following materials that I have prepared:

Form tool: Risk & Uncertainty Management Form – Processes & Oversight Dave Tate Esq 10202013

2. An article by Norman Marks about reflections on strategic risk, including comments and articles by other thought leaders. Norman regularly posts worthwhile news and comments.

3. Governance leaders call to action for enhancing the audit committee report. I’m disappointed in this new endeavor. Essentially, the call to action encourages audit committees to clarify the scope of the audit committee’s duties; clearly define the audit committee’s composition; and provide relevant information about factors considered when selecting or reappointing an audit firm, selecting the lead audit engagement partner, determining auditor compensation, how the committee oversees the external auditor, and how the committee evaluates the external auditor.

I found the first point, to clarify the scope of the audit committee’s duties, to be of the most potential interest; however, the discussion about what this might involve is only preliminary in nature and lacks detailed comments. Instead, consider using the following materials that I have prepared:

Form tool: 2 Page Board Director Guidelines Dave Tate Esq 10262013

Form tool: Audit Committee Annual Self-Evaluation Form David Tate Esq 10112013

Form tool: Board of Directors Annual Self-Evaluation Form David Tate Esq 10162013

Dave Tate (San Francisco), http://tatetalk.com

Tate Talk – Law, Risk, Governance, Business and People | Scoop.it.

Please click on the following link for an updated Board annual self-evaluation form for your use, Board of Directors Annual Self-Evaluation Form David Tate Esq 10162013.

Dave Tate, Esq. (San Francisco/California)