litigating contract surety bond & fidelity insurance ... - Sedgwick LLP

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• Assessing whether a third party lawsuit is required • Insurers who deny a claim because the case settled and the direct loss was not a result of the fraud Forgery Exclusions • Application of forgery exclusions on commercial crimes policy o Issues relevant to identify theft Fidelity Bonds in Banks • Banks who fail to investigate the loan and then issue a loan based on fraudulent documents • Examining the bond form and assessing if there is a direct loss requirement o Assessing where there is a direct loss connected with fraud • Special terms and provisions in a banker’s blanket bond issued specially to banks o Involvement of the American Bankers Association o Crafting wording of policy, forms, and how the courts recognize and look to the form based on facts of case o Examining FDIC requirement that banks have fidelity bonds to insure against dishonesty and fraud o Using a standard form to avoid variations and differences in forms Good Faith • Fidelity bonds requiring financial institutions to act in good faith in proceeding with financial transactions • Lack of guidance on good faith • Learning lessons from the subprime mortgage crises • Factual dispute often decided by jury 9:20 Bad Faith Claims in the Fidelity Insurance Context: The Scope, the Merits, and Creating the Best Strategy for Motion Practice R. Brent Cooper Partner Cooper & Scully, P.C. Thomas V. Gebler, Jr. Partner Margolis Edelstein • The frequency of bad faith claims in first party agreements in fidelity claims • Assessing merits of the claim • Assessing bad faith as a defense to indemnity obligations • Calculating litigation cost to assert bad faith claims • Summary judgment motion practice in the fidelity context 10:05 Morning Coffee Break 10:15 Drafting and Implementing Effective Tender, Takeover, and Completion Agreements in the Surety Context: Performing Due Diligence, Investigating the Surety, Accessing Financial Records, and Practical Considerations in Project Funding Harold E. McKee Partner Riordan McKee & Piper, LLC David D. Gilliss Partner Pike & Gilliss, LLC Tender Agreements • Difficulty in obtaining information when the principal is in financial distress • How do you access records when principal is bankrupt? • Good faith duty to investigate by the surety when notice of bond is received Takeover Agreement • Executing a contract with owner and ensuring payment • New principal stepping in and taking over a project must have ability to pay surety • Litigation based on AIA form and demanding owner for adequate resources to fund project • Ensuring lender is solvent and committed to funding project • Asserting other offsets to ensure other funds will flow Completion Agreement • Issues when new principal takes over a project • Problems when new agreements are not mentioned in performance bond 11:15 The Interplay Between the Equitable Right of Subrogation and Contract Assignment Rights in the Surety Bond Context Matthew Bouchard Partner Lewis & Roberts, P.L.L.C. Mark Oertel Partner Lewis Brisbois Bisgaard & Smith LLP • What types of rights do agreements of indemnity typically assign from principals to sureties? • How does a surety’s contractual assignment rights supplement its equitable subrogation rights? • What considerations should a surety keep in mind before enforcing its assignment rights? • What strategies might a surety employ to persuade the principal that voluntary assignment of rights is in the principal’s best interests? • When the principal won’t cooperate, what steps might a surety take to enforce its contractual assignment rights through litigation? 12:15 Main Conference Ends Lunch for Master Class Participants Register now: 888-224-2480 • Fax: 877-927-1563 • AmericanConference.com/FidelitySurety
1:00 – 3:00 p.m. Deep Dive Into the State of California: Complex Wage and Labor Issues, Subdivision Bonds, and Enforcing Stop Notice Claims Gregory Arnold Surety Claims Consultant Insurance Company of the West Mark Oertel Partner Lewis Brisbois Bisgaard & Smith LLP Denae Hildebrand Budde Partner Alborg, Veiluva & Martin LLP POST-CONFERENCE MASTER CLASSES Thursday, October 18, 2012 A B Wage and Labor • Surety bonds that are very descriptive in terms of what it covers including all labor and material law that goes into project o Understand the complex wage and labor laws in California • Understanding the administration process, Department of Labor standards and enforcement which controls heavily organized labor o Finding in favor of laborer and challenging and overturning the administrative decision by writ of mandate • Getting hit with prevailing wage claims when the principal or sub contractor on public works project gets hit by: o Department of Labor o Owner with labor compliance unit o Employee Subdivision Bonds • Subdividing land and surety guaranteeing a public improvement • Developers unable to finish a project and stopping mid-way o How can the city/state remedy a project that is half complete? • Drafting a set aside letter so the bank that loans money to the developer agrees to set aside funds for public improvement o What happens when the bank fails to manage funds and set aside money • What happens when a new developer steps into a failed project? o Does the surety have to continue to guarantee the public improvements? Public Works Projects • Understanding budget difficulties in California • Private contractors moving into the private sector Stop Notice Claims • Filing bonded stop notice claim to ensure money is paid out • Claims usually made by material supplier or subcontractor that have not been paid by owner • Assessing whether bank or surety pays out the claim 3:00 – 5:00 p.m. Discovery and E-Discovery: Recovering Volumes of Records, Documents, and Data in the Surety and Fidelity Context Susan Koehler Sullivan Partner Sedgwick LLP Thomas Gebler Partner Margolis Edelstein Matthew J. Christian Shareholder Kolesar & Leatham In this interactive session, you will obtain detailed instruction on how to develop cost-effective and practical discovery strategies and tools. Learn how to manage and control voluminous data and streamline information to control discovery cost. Outside counsel will benefit from detailed review of the scope of discovery including the limitations and realities of e-discovery. Topics include: • Managing massive amounts of data in fidelity litigation when large financial institutions are involved • Dealing with document production where multiple insurers are involved • Focusing on key documents for coverage issues • Handing discovery aspect of a surety claim • Document review • Deposition of experts About the Venue The Union League, which occupies an entire city block in the center of Philadelphia’s commercial and cultural district, is a shining jewel of history in a city defined by such treasure. Founded in 1862 as a patriotic society to support the policies of President Abraham Lincoln, The Union League has hosted U.S. presidents, heads of state, industrialists, entertainers and visiting dignitaries from around the globe. The classic French Renaissance-styled League House, with its brick and brownstone façade and dramatic twin circular staircases leading to the main entrance, is listed in the National Historic Register, and dates back to 1865, when the Broad Street building was completed. Adorning the walls and hallways is the League’s distinguished art collection, artifacts imbued with the heritage and culture of its membership. The collection is a rich, historical chronicle of Philadelphia’s unique imprint upon the American landscape from the nineteenth century to today. © American Conference Institute, 2012 Register now: 888-224-2480 • Fax: 877-927-1563 • AmericanConference.com/FidelitySurety
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litigating contract surety bond & fidelity insurance ... - Sedgwick LLP

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