16th Annual Conference on EMPLOYMENT PRACTICES LIABILITY INSURANCE

Tuesday, January 25 to Wednesday, January 26, 2011
Park Lane, New York City, NY

DAY ONE: TUESDAY, JANUARY 25, 2011

7:00 Registration and Continental Breakfast

8:00 Co-Chairs’ Opening Remarks

Joni F. Mason
Senior Vice President, EPL Product Manager
Chartis (New York, NY)

Patrick Hicks
Shareholder
Littler Mendelson P.C. (Las Vegas, NV)

8:15 Identifying Emerging Opportunities in a Continuing Soft Market: Acquiring New Business, Creating Additional Value for Insureds, and Bringing New EPLI Products to Market

Adeola I. Adele
Senior Vice President, National EPL Product Leader
Marsh Inc. (New York, NY)

Miles R. Afsharnik
Vice President, Claim & Legal Resource Director
Professional Risk Group Wells Fargo Insurance Services USA, Inc. (New York, NY)

Janet B. Dreifuss
Senior Vice President, Executive Risk
Alliant Insurance Services (New York, NY)

Thomas P. Hams
Managing Director, National EPLI Practice Leader
Financial Services GroupA Division of Aon Risk Services Central, Inc. (Chicago, IL)

Joni F. Mason
Senior Vice President, EPL Product Manager
Chartis (New York, NY)

Moderator:
Richard S. Betterley, CMC

President
Betterley Risk Consultants, Inc. (Sterling, MA)

  • Trends in the EPLI marketplace relating to coverage and premiums
  • How brokers are representing clients in the current market
  • Bringing new products to market
    • Identifying coverage gaps in the market
    • Underwriting concerns
    • Claims considerations
  • Identifying and acquiring new business opportunities
  • Working with brokers to acquire new business
  • Strategies for combating declining premiums
    • Creating additional value for insureds
  • How a slow economic recovery (with little job growth in the near-term) will impact the EPLI market

9:45 Morning Coffee Break

10:00 Advanced Settlement and Alternative Dispute Resolution Techniques for EPL Claims

The Honorable Mark W. Bennett
United States District Court Judge
Northern District of Iowa (Sioux City, IA)

Deanna M. Beacham
Assistant Vice President
Chubb Group of Insurance Companies (Warren, NJ)

Patrick Hicks
Shareholder
Littler Mendelson P.C. (Las Vegas, NV)

Gerald L. Maatman, Jr.
Partner
Seyfarth Shaw LLP (Chicago, IL)

Stephen H. Kahn
Founding Partner
Kahn Opton, LLP (Fort Lee, NJ)

  • Evaluating an EPL case for settlement consideration
    • EEOC perspective
    • Carrier perspective
    • Defense counsel perspective
    • Plaintiffs’ counsel perspective
    • Determining which cases have the greatest potential for large damages awards
  • Making use of non-cash terms to reduce settlement costs
    • Assessing the “costs” and benefits of the various non-cash terms
    • Determining which non-cash terms to offer and when to offer them
  • The insured/carrier dynamic and its impact on EPL settlement considerations
  • Settling collective and class actions
    • Navigating the Rule 23 fairness hearing
  • Evaluating recent successes and failures in the use of ADR to resolve EPL claims
    • What has worked, what has not worked, and why
  • Assessing the status of arbitration in EPL cases
    • Rent-A-Center, West, Inc. v. Jackson
    • Impact on employment practices and EPLI
    • Potential for legislation that would affect the viability of arbitration
  • Key break points during litigation at which to consider mediation
  • Persuading employees, employers, and carriers to attempt mediation

11:30 Keynote Address: EEOC Initiatives for 2011 and Beyond

Constance S. Barker
Commissioner
U.S. Equal Employment Opportunity Commission (Washington, DC)

  • Number, frequency, and types of claims in 2010
  • Lessons learned from the most signifi cant claims in 2010
  • EEOC perspectives on the conciliation process as well as mediation and settlement of claims
  • Emerging trends and developments at the EEOC
  • Litigation and enforcement priorities for 2011 and beyond
  • Pending cases to watch for in 2011
  • Impact of increased funding on EEOC initiatives
  • Coordination of EEOC offi ces across the country
  • Defending your case before the EEOC: Common mistakes and how to avoid them

12:30 Networking Luncheon for Speakers and Delegates

1:45 Wage & Hour and EPLI: Offering and Obtaining Coverage for and Reducing Exposure to Wage & Hour Claims

Lynette Lyngaas
Assistant Vice President - Employment Practices Liability, Management Liability
Monitor Liability Managers, LLC (Rolling Meadows, IL)

Michael Santocki
Director
Frank Crystal & Company (New York, NY)

Paul J. Siegel
Partner
Coordinator EPL Insurance Practice
Jackson Lewis LLP (Melville, NY)

  • Evaluating industry trends relating to wage and hour coverage
  • Determining whether to offer wage and hour coverage
    • The continuing soft market
    • Competitive considerations
    • Public policy
  • Underwriting considerations when offering wage and hour coverage
    • Scope of coverageo
      • Defense-only sublimits
      • Indemnity coverage
      • Coverage limits
      • Claim types: Overtime, misclassification, exempt status
    • Factors to consider
      • Insured’s policies and procedures
      • Employee composition
      • Industry-specific considerations
  • Assessing the costs and benefits of available wage and hour coverage
    • The potential impact of defense-only sublimits
  • Understanding ERISA claims as they relate to wage and hour claims
    • EPLI coverage of underlying ERISA claims
  • Impact on EPLI of overlap between wage and hour claims and other EPL claims
  • Reducing exposure to wage and hour claims
    • Instituting effective policies and procedures
    • Obtaining review by outside counsel
  • EPLI issues that can arise involving independent contractors or joint employment

3:00 Keynote Address by The Honorable Mark W. Bennett

The Honorable Mark W. Bennett
United States District Court Judge
Northern District of Iowa (Sioux City, IA)

Mark W. Bennett, United States District Court Judge for the Northern District of Iowa, argued the seminal case Evans v. Oscar Mayer Co. in the United States Supreme Court. Judge Bennett has a keen interest in technology and was instrumental in the development of case management software that is now being utilized by federal district judges across the country. Additionally, Judge Bennett frequently teaches at the U.S. Department of Justice National Advocacy Center and has co-authored a book entitled Employment Relationships Law & Practice.

3:30 Afternoon Refreshment Break

3:45 Ensuring Ethical Conduct in the Management, Litigation, and Settlement of EPL Claims: Considerations for Employers, Carriers, and Defense Counsel

Jason A. Fogg, Esq.
Vice-President, Claims
Monitor Liability Managers, LLC (Rolling Meadows, IL)

A. Craig Cleland
Shareholder and Co-Chair of Ogletree Deakins’
Class-Action Practice Group
Ogletree, Deakins, Nash, Smoak & Stewart, P.C. (Atlanta, GA)

Karl R. Lindegren
Partner
Fisher & Phillips LLP (Irvine, CA)

Joseph H. Yastrow
Partner
Laner Muchin (Chicago, IL)

  • Ethical issues that can arise when an employee treats the company’s attorneys as his or her own attorneys
    • Ensuring that employees understand your obligations to the company
  • Communication with plaintiffs and company employees
  • what’s appropriate and what’s not?
  • Ethical considerations for corporate counsel, defense counsel, and carrier claims counsel relating to the defense and settlement of covered claims
    • Potential conflicts of interest
    • Resolving contentious issues
  • Ex parte communications: what’s appropriate and ethical?

5:00 Conference Adjourns

5:00 Cocktail Reception

DAY TWO: WEDNESDAY, JANUARY 26, 2011

7:30 Continental Breakfast

8:00 Co-Chairs’ Remarks

8:05 EPLI Carrier Roundtable: Perspectives on Claims Trends, Cost Control, Underwriting Considerations, Panel Counsel, and the Defense and Settlement of Claims

Robert C. French
VP & Underwriting Counsel – Financial Lines
Starr Indemnity & Liability Company (New York, NY)

Jennifer Hamilton Lewis, Esq.
Senior Claims Analyst
Allied World National Assurance Company (Farmington, CT)

Haralyn H. Isaac
Vice President Claims
Great American Insurance Company (Schaumburg, IL)

Joanne Lloyd-Bragg
VP, Claims
AXIS Professional Lines (Berkeley Heights, NJ)

Martin Schnabel
Director – Claims
Freedom Specialty, a Nationwide Company (New York, NY)

Brian Shahum
Claims Supervisor
Liberty International Underwriters (New York, NY)

Moderator:
Dennis D. Strazulo

Partner
Strazulo Fitzgerald LLP (San Francisco, CA)

  • Claims trends:
    • Types of claims
    • Industries with the most claims
    • Payouts and defense costs
  • Underwriting considerations as they relate to claims trends and market conditions
  • Carrier perspectives on working with insureds to better manage claims
    • Best practices for giving notice of a claim to a carrier
    • Ensuring that carriers are notified of claims in a timely manner
    • Determining when carrier consent is required and whether such consent has been given
    • Determining if and when a carrier should be notified of a potential claim
  • Best practices for cost-effective management and defense of claims
    • Implementing internal cost-reduction procedures
    • Reducing the costs associated with the use of defense counsel
    • Using experts more effectively and judiciously and controlling the costs associated with expert testimony
  • Considerations when selecting and using defense counsel
    • Use of panel counsel
      • Determining whom to include as panel counsel
    • Criteria carriers use to evaluate defense counsel
      • When and how often to reevaluate panel counsel
    • Maintaining separation between defense counsel and coverage counsel
  • Carrier expectations as they relate to the defense of a claim and the role of in-house and outside counsel
  • Carrier perspective on settlement of claims and how it may differ from the insured’s perspective
  • How carriers are responding to the increased number of EPL claims being filed
  • How carriers, insureds, and defense counsel can best work together to manage and defend against class actions

9:45 Morning Coffee Break

10:00 Addressing EPL Concerns Arising From Employee and Employer Use of Social Networking/Social Media

Ellen M. Hoadley
Director of Risk Management
Lexington Insurance Company, a Chartis Company (Boston, MA)

Roxane Marenberg
Sr. Director, Employment Law
Cisco Systems, Inc. (San Jose, CA)

Philip L. Gordon
Shareholder, Chair of the Privacy and Data Protection Practice Group
Littler Mendelson P.C. (Denver, CO)

Joseph A. Starr
Partner
Lipson, Neilson, Cole, Seltzer & Garin, P.C. (Bloomfield Hills, MI)

Janis van Meerveld
Partner
Adams and Reese LLP (New Orleans, LA)

  • Lessons learned from use of social media in the workplace
  • Pitfalls to avoid when using social media to screen potential and current employees
    • Minimizing exposure to potential privacy and discrimination claims
    • Best practices regarding accessing information that would otherwise not be readily available to an employer
  • Determining whether and when to use information obtained from social media sources to make employment decisions
  • Assessing the potential for employer liability arising from employee use of social media, both on and off of corporate time
  • Implementing policies and procedures to prevent employee misuse of social media
    • Responding to employee misconduct
  • Privacy concerns that can arise from employer and employee use of social media
  • Managing and defending against claims arising from the use of social media
  • EPLI coverage as it relates to the use of social media by employers and employees

11:30 Networking Luncheon for Speakers and Delegates

12:30 Discrimination Claims: Minimizing Exposure to Age, Gender, Disability, Religious Discrimination, and Retaliation Claims

Elizabeth Grossman
Regional Attorney
New York District Office
U.S. Equal Employment Opportunity Commission (New York, NY)

Jeffrey M. Friedel
Global Head of Employment Law
Infosys Technologies Limited (Bridgewater, NJ)

Anne Golden
Partner
Outten & Golden LLP (New York, NY)

Joelle C. Sharman
Partner
Lewis, Brisbois, Bisgaard & Smith LLP (Atlanta, GA)

Lawrence Stone
Director
Dufford & Brown, P.C. (Denver, CO)

Moderator:
Michael W. Hawkins

Partner
Dinsmore & Shohl LLP (Cincinnati, OH)

  • Ramifications of Dukes v. Wal-Mart Stores, Inc. and the Novartis settlement
    • Response from the plaintiffs’ bar
    • Response from carriers and defense counsel
  • Managing the increase in age discrimination claims arising from the recent uptick in layoffs and RIFs combined with a slow economic recovery
  • Assessing the impact of recent ADEA court decisions and the likelihood that Congress will act in response to them
  • Managing and defending against compensation discrimination claims
    • Evaluating and defending against the latest strategies of the plaintiffs’ bar
    • Impact of the Lilly Ledbetter Fair Pay Act
  • Retaliation claims
    • Recent Supreme Court decisions
    • Overcoming jury sympathy for employees and bias towards employers in retaliation cases
    • Insurability of punitive damages in retaliation claims
    • Countering the usage of discrimination and whistleblower claims as precursors to retaliation claims
      • SOX-related claims
  • Overcoming ongoing hurdles relating to the ADA amendments
    • How this is playing out in the courts
    • Are plaintiffs having more success surviving summary judgment?
  • Religious discrimination and accommodation cases

2:00 Assessing and Preparing for New and Emerging Federal and State Legislation, Regulations, and Initiatives Affecting Employment Practices

Stephen B. Harris
Assistant Vice President and Assistant General Counsel
The Hartford Financial Services Group, Inc. (Hartford, CT)

Brett G. Rawitz
Managing Counsel, Global Labor and Employment Law
McDonald’s Corporation (Oak Brook, IL)

Kenneth P. Carlson, Jr.
Managing Partner
Constangy, Brooks & Smith, LLP (Winston-Salem, NC)

Anne Marie Estevez
Partner
Morgan, Lewis & Bockius LLP (Miami, FL)

Moderator:
Mercedes Colwin

Managing Partner
Gordon & Rees, LLP (New York, NY)

  • Evaluating the potential impact of the Paycheck Fairness Act and other new or proposed federal employment laws
    • Challenges for EPLI carriers and defense counsel
  • Anticipating and preparing for a shift in the priorities and initiatives of the EEOC
    • Implications of increased funding
    • Assessing the trend towards more detailed investigations, fact-finding conferences, and mediations – and their impact on defending charges
  • Preparing for increased coordination amongst EEOC offices around the nation
  • EPL issues arising from employee use of medical marijuana
    • Overview of current and emerging medical marijuana laws
    • Assessing employers’ obligations regarding employee use of medical marijuana in states that permit it
    • Best practices for employers
  • Evaluating the likelihood of the Employment Non-Discrimination Act (ENDA) becoming law

3:30 Conference Ends

PRE-CONFERENCE WORKSHOP
MONDAY, JANUARY 24, 2011
2:00 P.M. – 5:00 P.M.

Fundamentals of the EPLI Market: A Boot Camp for Underwriters, Claims Counsel, Brokers, and Corporate and Private Practice Employment Attorneys

Seth B. Brickman,
AAI, RPLU Senior Underwriter, Management Liability
Business Risk Partners (Windsor, CT)

Paul J. Siegel
Partner
Coordinator EPL Insurance Practice
Jackson Lewis LLP (Melville, NY)

Joseph H. Yastrow
Partner
Laner Muchin (Chicago, IL)

  • Understanding the various EPLI policy options and what the market is offering now
    • Claim types
    • Self-insured retentions
    • Attorneys’ fees
    • Wage and hour claims
  • Where EPLI coverage issues tend to arise
    • Industry analysis
    • Claims trends
  • Typical wordings in EPLI policies
  • Interpretation of language in EPLI policies
  • Litigating and settling EPL claims
    • Panel counsel