Sunday, September 30, 2012
Sunday, December 25, 2011
Sunday, November 13, 2011
Cancer Risk from Cell Phone Usage: As Scientific Knowledge Advances, Will Coverage Follow?
The Clyde & Co Review
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A quarterly newsletter focused on critical and emerging issues facing
insurers in the United States and throughout the world.
On behalf of Clyde & Co worldwide, I am pleased to present the inaugural issue of
The Clyde & Co Review, a quarterly publication of Clyde & Co US LLP.
Each quarter, we will provide a report focusing on an emerging issue important to our industry,
principally in the United States, but also throughout the world. We will also highlight our
worldwide Clyde & Co offices, and keep you abreast of Clyde & Co “In The News.”
In this edition, we are reporting on health risks from cell phone usage and the implications for
the insurance industry, particularly in light of the recent World Health Organization Report.
Our Office Highlight focuses on our Dubai office. In the News are several recent achievements
that I believe may be noteworthy.
Kindly send us any comments, suggestions or questions you may have concerning the issues
addressed in this edition.
Yours sincerely,
Michael Payton
Senior Partner
Clyde & Co
London, England
October 2011
Cancer Risk from Cell Phone Usage: As Scientific Knowledge
Advances, Will Coverage Follow?
Over 302 million Americans, greater than 96% of the population, use cell phones.
http://ntp.niehs.nih.gov. Most of us, as well as our children, use our cell phones every day,
some for hours each day.
Overview
Concerns have arisen about carcinogenicity of long-term exposure to radio-frequency
electromagnetic fields (EMF) emitted by cell phones. When a cell phone is turned on, it
searches for a base station, or cell tower, within range to communicate with and connect with
other telecommunication devices. Id. Cell phones “emit a low level of radio frequency
radiation, a form of electromagnetic energy, from their antenna when they communicate with
base stations.” Id. “[T]he FCC has promulgated rules that limit the amount of RF radiation that
FCC-regulated [cell phones] . . . may emit.” [Pinney v. Nokia, 402 F.3d 430, 439 (4th Cir. 2005)
(citing In re Guidelines for Evaluating the Environmental Effects of Radiofrequency Radiation,
11 FCC Rcd. 15123, 15125 (1996)).]
Exposure to cell phone radio-frequency radiation is measured by specific absorption rate
(SAR), which measures the amount of radiation the body absorbs when a cell phone is used.
“Holding a mobile phone to the ear to make a voice call can result in high . . . SAR values in
the brain, depending on the design and position of the phone and its antenna in relation to the
head, how the phone is held, the anatomy of the head, and the quality of the link between the
base station and the phone.” [Robert Baan, et al., Carcinogenicity of radiofrequency
electromagnetic fields, The Lancet Oncology, Volume 12, Issue 7, p. 624 (July 2011).]
Recent studies, like their predecessors, have yielded contradictory results and conflicting
conclusions. Additional studies are proceeding and there is no doubt that the debate will
continue for the foreseeable future.
While scientists debate the risk, cell phone users have sued manufacturers and suppliers,
alleging that long-term exposure to cell phone EMF emissions has caused injury. These
claimants, however, have faced at least two obstacles. First, most courts have held that their
claims are pre-empted by the Telecommunications Act of 1996 (“TCA”), which granted the
Federal Communications Commission (“FCC”) exclusive authority to regulate human exposure
to cell phone EMF emissions. Second, claimants who have cleared the pre-emption hurdle
have been barred from presenting expert proof on causation pursuant to the strictures of
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993) (“Daubert”).
Manufacturers and suppliers seeking insurance coverage for a defense against these claims
notwithstanding the prevailing obstacles to judgment have to date been generally successful,
as most courts have found that the claims allege “bodily injury”, thereby triggering a duty to
defend.
Here we present a report on the current state of the scientific debate, a discussion of the preemption
and Daubert issues and a summary of the duty to defend decisions.
Recent Studies and Reports Continue the Carcinogenicity Debate
On June 22, 2011, the World Health Organization (“WHO”) released the report of its International
Agency for Research on Cancer (“IARC”) Working Group, concluding that cell phone EMF
emissions should be classified as Group 2B human carcinogens, which are those agents that are
“possibly carcinogenic to humans.” [Robert Baan, et al., supra, p. 624 (July 2011).]
The IARC Working Group is comprised of 30 preeminent scientists from 14 countries. Their
conclusions were based on their analysis of previously-published reports and studies not
additional, original research. Nevertheless, the WHO report does present the consensus view
of an esteemed body of experts in the field of oncology.
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Among the studies considered by the IARC Working Group, and discussed in the WHO report,
are (1) two brain cancer studies, one published in the Journal of the American Medical
Association (“JAMA”) and a second published in the New England Journal of Medicine; (2) a
study focused on tissue-specific risks to young cell phone users; (3) a nationwide Danish
cohort study; and (4) two Interphone group studies.
The brain cancer study reported in JAMA was a case-control study limited to 469 men and
women, aged 18 to 80, with primary brain cancer and 422 matched controls without brain
cancer. [Joshua E. Muscat, et al., Handheld Cellular Telephone Use and Risk of Brain Cancer,
JAMA, Volume 284, No. 23, p. 3001 (December 20, 2000).] Reflecting the cell phone usage
trends in 2000, only 14% of the cases and 18% of the controls reported using hand-held cell
phones. [Id. at p. 3003.] The study concluded that “[t]he use of handheld cellular telephones
was unrelated to the risk of brain cancer.” [Id. at p. 3005.]
The brain cancer study reported in the New England Journal of Medicine was also a casecontrol
study, limited to 782 men and women aged 18 and older with intracranial tumors of the
nervous system, and 789 matched controls with no malignancies. [Peter D. Inskip, et al.,
Cellular Telephone Use and Brian Tumors. 344 N. Engl. J. Med., 79 (2001).] Similar to the
earlier study, 24.8% of the patients and 29% of the controls reported cell phone usage.
[Id. at p. 81.] The study concluded:
Our results do not substantiate the concern that some brain tumors diagnosed in the
United States during the mid-1990s were caused by the use of handheld cellular
telephones. There was little to no indication of an increased risk of glioma,
meningioma, or acoustic neuroma associated with any use, cumulative use, or the
laterality of use of these telephones.
[Id. at p. 83.]
The study on young cell phone users assessed the potential increased risk to children
based on dose and sensitivity, in particular to developing brains. [Andreas Christ, et al.,
Age-dependent tissue-specific exposure of cell phone users, 55 Physics in Medicine and
Biology 1767 (2010).] This study concluded that (1) exposure of regions inside the brains of
young children can be higher by 2-5 decibels (dB) in comparison to adults; (2) exposure to
bone marrow of children can exceed that of adults by a factor of 10; (3) brain regions close to
the surface of the ear showed peak spatial average SAR more than 4 dB higher in children
than adults. [Id. at p. 1780.] Thus, in general, children suffer a higher exposure of RF radiation
than adults due to dose affected by anatomical proportions. Id.
The nationwide Danish cohort study investigated cancer risk among 420,095 persons whose
first cell phone usage was between 1982 and 1995 and were followed through 2002 for cancer
incidence. [Joachim Schuz, et al., Cellular Telephone Use and Cancer Risk: Update for
Nationwide Danish Cohort, 98 Journal of The National Cancer Instiute 1707 (2006).]
While 14,249 cancers were observed in the population, cell phone use was not associated
with increased risk of brain tumors, acoustic neuromas, salivary grand tumors, eye tumors or
leukemias. [Id.] Among long-term users of 10 years or more, there similarly was no increased
risk for brain tumors. [Id.]
The IARC Working Group discounted the Danish cohort and the two case-control studies,
concluding that they were “less informative” because they “encompassed a period when
mobile phone use was low, users typically had low cumulative exposures, time since first use
of a mobile phone was used was short, and effect estimates were generally imprecise.”
[Robert Baan, et al., Carcinogenicity of radiofrequency electromagnetic fields, THE LANCET
ONCOLOGY, Volume 12, Issue 7, p. 624 (July 2011).]
The IARC Working Group was heavily influenced by the Interphone group studies published in
2010 and 2011. Id. The first Interphone study, published in 2010, was a case-control study of
2,708 glioma and 2,409 meningioma cases and matched controls. [Elisabeth Cardis, et al.,
Brain tumour risk in relation to mobile telephone use: results of the Interphone international
case-control study, International Journal of Epidemiology 1 (2010).]
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The study concluded that while there was “no increase in risk of either glioma or meningioma .
. . in association with the use of mobile phones . . ., [t]here were suggestions of an increased
risk of glioma . . . , at the highest exposure levels, for . . . tumors in the temporal lobe.” [Id. at
p. 14.]
The second Interphone study, published in 2011, was a case-control study of 553 glioma and
676 meningioma cases, and matched controls. [Elisabeth Cardis, et al., Risk to brain tumors in
relation to estimated RF dose from mobile phones: results from five Interphone countries,
Occupational Environmental Medicine 1 (2011).] The study concluded that “there is an
increase in glioma risk with high levels of RF dose in people whose brain has absorbed high
levels of RF energy from mobile phone use and . . . this risk may only be evident in people
who began mobile phone use 7-10 years or more before diagnosis. There is a possibility also
of similar, but apparently much smaller, increases in meningioma risk.” [Id. at p. 7.]
Overall, the IARC Working Group concluded that there is “limited evidence in humans for the
carcinogenicity of RF-EMF, based on positive associations between glioma and acoustic
neuroma and exposure of RF-EMF from wireless phones.” [Robert Baan, et al., supra, p. 625.]
This study supports the theory that long-term, persistent exposure to cell phone EMF
emissions may have a link to certain cancers.
Additional studies are underway. In 2009, the FDA nominated cell phone EMF emissions to
the National Toxicology Program for toxicology and carcinogenicity testing. [Statement for the
Subcommittee on Labor, Health and Human Services, United States Senate, September 14,
2009.] The NTP is conducting such studies on laboratory animals currently, with completion
expected in 2014. [Cell Phone Radiofrequency Radiation Studies, National Toxicology
Program June 2011.] Other studies are in progress at the NTP, with a similar expected
completion date. Id. It is anticipated that these studies will allow the federal government to
make future decisions about EMF emission-related health issues, id., and the possibility of
more stringent standards exists.
Federal Pre-emption of Cell Phone EMF Emission Injury Claims
Cell phone manufacturers and suppliers facing injury claims in Federal Court have asserted
that the claims are pre-empted by the TCA.
Pre-emption arises under the Supremacy Clause, U.S. CONST. VI, cl.2, which invalidates
state laws that “interfere with, or are contrary to” federal law. Gibbons v. Ogden, 9 Wheat. 1,
211, 6 L.Ed. 23 (1824). The Supreme Court has identified three forms of federal pre-emption.
“Express” pre-emption arises when Congress expressly states its intent to pre-empt state law.
See Hillsborough County v. Automated Medical Labs, Inc., 471 U.S. 707, 713, 105 S.Ct. 2371,
85 L.Ed.2d 714 (1985). “Field” pre-emption arises when “Congress' intent to pre-empt all state
law in a particular area may be inferred . . . [because] the scheme of federal regulation is
sufficiently comprehensive” or “'the federal interest is so dominant that the federal system will
be assumed to preclude enforcement of state laws on the same subject.'” [Id. (quoting Rice v.
Sante Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947)).] “Conflict”
pre-emption arises when state law conflicts with federal law and, although Congress has not
displaced state regulation in a given area, “compliance with both federal and state regulations
is a physical impossibility”, Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-
3, 83 S.Ct. 1210, 1217-18, 10 L.Ed.2d 248 (1963), or when state law “stands as an obstacle to
the accomplishment and execution of the full purposes and objectives of Congress.” Hines v.
Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 404, 85 L.Ed. 581 (1941).
The first case to address federal pre-emption of state law cell phone EMF emission injury
claims was Pinney v. Nokia, Inc., 402 F.3d 430 (4th Cir. 2005). The claimants alleged that
Nokia negligently and fraudulently marketed wireless telephones that emit unsafe levels of
EMF radiation without providing headsets. The claimants sought compensatory damages
measured by the cost to buy a headset for each claimant and punitive damages. Id. at 440-1.
The court considered whether the claimants' state law claims were pre-empted by the TCA.
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The court first decided that the TCA did not expressly pre-empt the state law claims. Id. at
456. Rather, the two TCA provisions Nokia relied upon for its express pre-emption argument
were limited to the placement of cell phone towers and the “entry of or the rates charged by”
providers of cell phone services. Id. at 455.
Next, the court held that the state law claims were “not preempted under the doctrines of
conflict preemption and field preemption.” Id. at 456-7. The court “determined that the TCA
provides no evidence of a congressional objective to ensure preemptive national RF radiation
standards for wireless telephones.” Id. at 458. Further, the court concluded that the relief
sought by the claimants would not “stand as an obstacle to Congress' actual goal of
establishing a nationwide network of wireless telephone service coverage.” Id. Consequently,
there was no “conflict” pre-emption. With respect to field pre-emption, the court found “no
evidence that Congress intended that state law claims . . . [of the nature presented by these
claimants] be swept aside.” Id. at 459. The pre-emption defense was therefore rejected by the
Pinney court.
In Bennett v. T-Mobile USA, Inc., 597 F. Supp. 2d 1050 (C.D. CA. 2008), the claimant
purchased several cell phones over the course of three years from a service provider, TMobile.
Plaintiff claimed that cell phone use caused him to suffer “sudden hearing loss in his
right ear, vertigo, loss of equilibrium, and other personal injuries.” Id. at 1051. T-Mobile argued
that the state law claims alleging negligence, strict liability, breach of warranty and false
advertising were pre-empted. Declining to follow Pinney, the court held that the doctrine of
conflict pre-emption applied to bar the claims.
To allow state claims such as these asserted by Plaintiff to proceed would be to
question the judgment of the FCC on the issue of RF emissions standards. Because
the FCC has determined the optimal level of safe RF emissions and licenses phones
and service providers based on these levels, a jury verdict declaring these phones
unsafe “unquestionably trample[s] upon the FCC's authority to determine the
maximum standard for RF emissions”.
Id. at 1053 (quoting Farina v. Nokia, 578 F. Supp. 2d 740, 769 (E.D. Pa. 2008)).
The Bennett court did not address whether the claims at issue were also barred by the
doctrines of express or field pre-emption.
The next case to address the pre-emption question was Murray v. Motorola, Inc., 2009 D.C.
App. LEXIS 652 (D.C. App. Ct. Appeals Oct. 29, 2009).
Murray and other claimants asserted a series of state law claims premised on the allegation
that they developed illness and injury as a result of using cell phones produced, sold or
marketed by various cell phone industry defendants, including Motorola.
The court concluded that the state law claims were not precluded under the doctrines of
express or field pre-emption, id., slip op. at p. 25, 68 but were precluded under the doctrine of
conflict pre-emption. Id., slip op. at p. 38. The court, however, distinguished claims alleging
injury caused by cell phones acquired prior to August 1, 1996, holding that such claims were
not precluded under the doctrine of conflict pre-emption. Id., slip op. at p. 47-8.
In reaching its decision that the state law claims were subject to conflict pre-emption, the court
was significantly influenced by the applicable FCC regulations which require cell phones to be
authorized for sale in the United States by the FCC upon certification by the applicant that the
cell phone will not “cause human exposure to levels of radiofrequency radiation in excess of”
the limits specified in the applicable FCC regulations. Id., slip op. at p. 28 (citing 47 C.F.R.
§1.1307(b)(2008); 47 C.F.R. §2.1093 (2008)). In its rulemaking notice, the FCC explained that
its RF radiation limits were adopted to “provide a proper balance between the need to protect
the public and workers from exposure to excessive RF electromagnetic fields and the need to
allow communications services to readily address growing marketplace demands.” Id., slip op.
at p. 29 (quoting 12 F.C.C.R. at 13497, p. 5).
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The Murray court also found “persuasive the FCC's argument in [its] amicus brief that verdicts
that would hold defendants liable for bodily injury caused by cell phones that met the FCC RF
radiation limit 'would necessarily upset [the] balance [the agency struck] and . . . contravene
the policy judgments of the FCC regarding how safely and efficiently to promote wireless
communications.'” Id., slip op. at p. 32.
As noted above, however, the court distinguished claims alleging injury caused by cell phones
acquired prior to August 1, 1996. Id., slip op. at p. 47-8. “This is so because we read the
Complaints as alleging, in part, that plaintiffs' injuries were caused by cell phones that plaintiffs
acquired prior to August 1, 1996 (when the FCC adopted its current regulation . . .)” setting cell
phone safety standards. Id., slip op. at 47-48.
The most recent case to address the pre-emption question is Farina v. Nokia, Inc., 625 F.3d
97 (3d Cir. 2010). The court agreed with the Pinney court that the relevant TCA provisions did
not support express pre-emption. Id. at 120. The court agreed with the other courts that the
claims were not precluded by field pre-emption.
The court, however, disagreed with the Pinney court and concluded that the claims were
precluded by the doctrine of conflict preemption. The court reasoned as follows:
Farina's claims rest on the allegation that defendants warranted that their cell
phones were safe to operate, but that these phones were, in fact, unsafe to operate
without headsets because of their emission of RF radiation – despite the fact that their
emission levels were in compliance with FCC standards. In order for Farina to succeed,
he necessarily must establish that cell phones abiding by the FCC's SAR guidelines are
unsafe to operate without a headset.
Allowing juries to impose liability on cell phone companies for claims like Farina's would
conflict with the FCC's regulations. A jury determination that cell phones in compliance
with the FCC's SAR guidelines were still unreasonably dangerous would, in essence,
permit a jury to second guess the FCC's conclusion on how to balance its objectives.
Accordingly, we conclude that Farina's claims are preempted by the FCC's RF
regulations. The inexorable effect of allowing suits like Farina's to continue is to permit
juries to second-guess the FCC's balance of its competing objectives. The FCC is in a
better position to monitor and assess the science behind RF radiation than juries in
individual cases.
Id. at 122, 125, 133-4.
Since the Farina and Pinney decisions present a conflict among Circuit Courts of Appeal on
the pre-emption issue, the Farina claimants have petitioned the United States Supreme Court
for certiorari. That Petition remains pending at present. If granted, we could have the final
word on the pre-emption defense during the Court's Fall 2011 Term.
Daubert Preclusion of Causation Evidence, and the Affect on Class
Action Certification
In order to establish that long-term exposure to cell phone EMF emissions causes “bodily injury”,
claimants will have to present expert testimony. When expert testimony is offered to support a
party's claim in Federal Court, the trial judge is obliged to ensure, under Fed.R.Evid. 702, that
such testimony is “not only relevant, but reliable.” Daubert v. Merrell Dow Pharm., Inc., 509 U.S.
579, 589 (1993). In Daubert, the Supreme Court identified a non-exclusive checklist of factors for
a trial judge to consider to determine admissibility of expert testimony.These factors include: (1)
“whether a theory or technique . . . can be (and has been) tested”; (2) “whether the theory or
technique has been subjected to peer review and publication”; (3) whether the technique has a
high “known or potential rate of error”; and (4) whether the theory or technique enjoys “general
acceptance” in “a relevant scientific community.” Id. at 593-4.
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In Newman v. Motorola, Inc., 218 F. Supp. 2d 769 (D. Md. 2002), aff'd 78 Fed. Appx. 292 (4th
Cir. 2003), the court relied on Daubert to exclude expert testimony offered by plaintiff to prove
that use of cell phones causes brain cancer. The court noted a number of concerns. First, the
literature demonstrated no general acceptance of a relationship between cell phone use and
brain cancer. Second, plaintiff's main expert, Dr. Lennart Hartell, relied on his own
epidemiological research, but that research did not support an increased risk of brain tumors
located on the same side of the head as the cell phone use (ipsilateral), which was the main
point of his expert opinion. Third, Dr. Hartell's reports were not peer reviewed. Therefore, the
court concluded that the plaintiff's expert's opinions on causation failed the Daubert test.
Based on the current lack of consensus in the scientific community, we doubt opinions of cell
phone emission EMF carcinogenicity will meet Daubert challenges, at least until a consensus
view emerges.
In the class action context, claimants may need to satisfy Daubert before class certification. In
American Honda Motor Co. v. Allen, 600 F.3d 813, 815-6 (4th Cir. 2010) the court held “when
an expert's report or testimony is critical to class certification…a district court must
conclusively rule on any challenge to the expert's qualifications or submissions prior to ruling
on a class certification motion. That is, the district court must perform a full Daubert analysis
before certifying a class if the situation warrants.” Id. The Supreme Court appears to agree
with the Fourth Circuit on this point. See Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541,
2553-4 (2011) (noting “[t]he District Court concluded that Daubert did not apply to expert
testimony at the certification stage of class action proceedings…We doubt that is so…”). This
presents another hurdle to cell phone class action claimants that will be very difficult to
overcome given the state of the scientific debate.
The Duty to Defend Cell Phone EMF Claims
In a series of cases, courts have addressed the duty to defend cell phone EMF class actions,
like Pinney and Farina, in which claimants alleged exposure to radio frequency radiation and
sought to require the cell phone manufacturers to supply headsets.
In New York, the court determined there was no duty to defend, because the claims did not
seek “damages because of bodily injury,” but, instead, sought “only economic damages
measured by the cost of headphones that allegedly would block the allegedly dangerous
radiation emitted by cellphones, and, while alleging the risk of physical harm, specifically
disclaim seeking anything but the cost of the headphones.” Zurich-American Ins. Co. v.
Audiovox Corp., 294 A.D.2d 194, 741 N.Y.S.2d 692 (N.Y. App. Div. 2002).
Courts in Louisiana and Texas, as well as the Fourth and Ninth Circuit Courts of Appeal,
however, have reached the opposite conclusion. Motorola, Inc. v. Associated Indem. Corp.,
878 So.2d 824 (La. App. Ct. 2004); Trinity Universal Ins. Co. v. Cellular One Group, 2007 WL
49667 (Tex. App. Ct. 2007); Ericsson, Inc. v. St. Paul Fire & Marine Ins. Co., 423 F. Supp. 2d
587 (N.D. Tex. 2006); Samsung Elec. America, Inc. v. Federal Ins. Co., 202 S.W. 3d 372 (Tex.
App. Ct. 2006); Zurich American Ins. Co. v. Nokia, Inc., 2008 WL 3991183 (Tex. 2008);
Northern Ins. Co. of New York v. Baltimore Business Communications, Inc., 2003 WL
21404703 (4th Cir. 2003); Voicestream Wireless Corp. v. Federal Ins. Co., 2004 WL 2285720
(9th Cir. 2004).
In each of these cases, the courts determined that the claimants alleged present bodily injury,
or the complaints were ambiguous in this respect, and therefore there was a duty to defend.
In Motorola, the court relied on allegations that class members “are exposed to [radio frequency
radiation] which causes physical effects,” to hold that the claimants alleged “bodily injury.”
Motorola, 878 So.2d at 831, n. 5. In Trinity, the court relied on the allegations that “exposure to
radio frequency radiation caused 'an adverse cellular reaction or cellular dysfunction.'” Trinity,
2007 WL 49667, slip op. at p. 3. In Samsung, the court was persuaded by allegations that
“plaintiffs suffered an 'adverse cellular reaction' or 'cellular dysfunction,' also referred to as
'biological injury.'” Samsung, 202 S.W.3d at 377.
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The Nokia court was influenced by the same allegations, and concluded that “bodily injury”
included “biological injury” incurred by the claimants. Nokia, 2008 WL 3991183, slip op. at p. 5-6.
The Fourth and Ninth Circuits reached the same conclusion as the Nokia court, premised on the
same allegations of incurred “biological injury” and “adverse cellular reaction.” Baltimore Business,
2003 WL 21404703, slip op. at p. 6-7; Voicestream, 2004 WL 2285720, slip op. at p. 3.
In Ericsson, the court determined that the underlying complaints were “ambiguous as to
whether the class action plaintiffs suffer currently from adverse health effects or injury, or
merely have an increased risk of future injury.” Ericsson, 423 F. Supp. 2d at 592. However,
since “Texas law require[d] the Court to resolve any doubt regarding the duty to defend in
favor of the duty to defend, . . . the Court conclude[d] that the underlying complaints allege a
present injury of biological and/or cellular effects.” Id. at 592-3. Clearly, the trend favors the
manufacturers and suppliers on this issue in finding a present duty to defend insureds in cell
phone injury claims.
Conclusions and Observations
Notwithstanding the recent WHO report, the science remains uncertain on cell phone EMF
emission carcinogenicity. While the Supreme Court may decide shortly whether these claims
are pre-empted under the TCA, should pre-emption fail, Daubert remains a difficult hurdle for
claimants, particularly in the class action context. Still, based on the allegations made by the
claimants, most courts have held that the claims do give rise to a duty to defend. With our
culture's dependency on cell phones, more claims are certain to come.
Clyde & Co Worldwide Office Highlight – Dubai
We have been in the Middle East for over 20 years. Our Dubai office is one of four Clyde & Co
offices in the region. The others are in Abu Dhabi, Doha and Riyadh. These offices work
together as one unit, ensuring comprehensive regional coverage for our clients. We have 48
attorneys and over 150 legal staff in the region and, with a network of correspondents, we
service the Middle East, Gulf States and the Indian subcontinent.
Together with Clyde & Co’s global strengths in the areas of aviation, insurance and reinsurance,
marine and shipping and dispute resolution, our areas of expertise in the region include:
• Banking and finance (including Islamic Finance)
• Corporate and commercial
• Information and communications technology
• Intellectual property
• Property and construction
• Regulatory
These services are underpinned by our outstanding in-house translation and government
liaison services.
We act for corporations and multinationals, government bodies, banks and financial
institutions, insurers, and oil, gas and power multinationals. Our expertise stretches beyond
the firm’s core sectors of insurance, marine and transportation, aviation and international trade
into infrastructure, hotels and beyond. We also regularly advise clients seeking to establish
operations in the region on procedures for registering in Free Zones and offshore centers.
For more information concerning our Dubai and other Middle East Regional offices, please
contact Jonathan Silver, Managing Partner in Dubai, at jonathan.silver@clydeco.ae.
PLC Which Lawyer?
Middle East firm of the
year 2010
Asian – MENA Counsel
Firm of the year 2010
and 2011
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Clyde & Co "In The News"
Clyde & Co named Insurance Law Firm of the Year
International law firm Clyde & Co has been named “Insurance Law Firm of the Year” at the annual
Reactions London Market Awards in July 2011 in recognition of the firm's performance and
innovation within the industry.
Clyde & Co senior partner Michael Payton said: "It is a particular satisfaction to have been judged
and recognised by the insurance market as worthy of this nomination. It was wonderful to be
amongst so many well-known insurance practitioners at the awards
ceremony - a great fillip and encouragement."
Clyde & Co and Barlow Lyde & Gilbert sign Heads of Agreement
Further to the commitment to merge shown by the partnership votes at Clyde & Co and Barlow
Lyde & Gilbert on 28 and 29 July 2011, the two firms signed heads of terms on
26 August 2011 and will move forward to sign a formal merger agreement. The intention is to
complete the merger of the two firms on 1 November 2011 and the name of the combined firm will
be Clyde & Co. This merger will make Clyde & Co the UK’s 2nd largest litigation firm.
The combined firm will have 270 partners, over 1,250 fee earners and around 2,250 total staff
operating from 27 offices. It will provide clients in the insurance sector with both the broadest
business line and geographical coverage and the highest concentration of leading practitioners of
any insurance law firm
Clyde & Co launches in Canada
Clyde & Co and prominent Canadian insurance firm Nicholl Paskell-Mede announced a formal
merger of the two firms. From the 1 September 2011 the Montreal and Toronto offices of Nicholl
Paskell-Mede began trading under the Clyde & Co banner. The new Canadian offices will benefit
from Clyde & Co's strength in the London and global insurance markets while allowing the firm to
engage with the significant insurance market in Canada.
300 attend Clyde & Co and Lloyd’s energy disaster scenario seminar
Around 300 professionals attended the Offshore Energy Insurance Conference held by
Clyde & Co and Lloyds in London on 15th September 2011. The event focused on the global
challenges for the London insurance market and oil contractors and operators responding to a major
offshore energy disaster, in what proved to be a valuable educational exercise for both the London
energy market and the oil & gas sector.
Experts from Clyde & Co's offices around the globe analysed a hypothetical scenario set in five
different jurisdictions, highlighting the issues and considerations in each case with New York's John
Wood analysing the US/Gulf of Mexico. The timing of the event coincided with the publication the
day before of the U.S report regarding the causes of the April 20, 2010 Macondo well blowout being
published by the Bureau of Ocean Energy Management, Regulation and Enforcement.
Clyde & Co partners Diane Westwood Wilson and Julio Costa speak at ALTA’s Aviation Law
Americas
Leading Clyde & Co aviation partners Diane Westwood Wilson and Julio Costa took to the stage at
ALTA's Aviation Law Americas, the region's leading legal aviation conference on September 14 – 16
2011 in Cartagena, Columbia.
Diane participated in a panel discussion on consumer rights, specifically examining the US
Department of Transportation's (DOT) far-reaching new passenger rights rules whilst Julio Costa, one
of the Brazil's leading aviation lawyers, spoke on the subject of mergers and acqusitions in Brazil.
Further information
If you would like further information
on any issue raised in this update
please contact:
Kevin M. Haas
Kevin.haas@clydeco.us
Clyde & Co
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Florham Park, NJ 07932
Tel: +1(973) 210-6717
Fax: +1(973) 210-6701
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©Clyde & Co US LLP 2011
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