21st Century Fox has reached a $90 million settlement of shareholder claims

Reuters

Twenty-First Century Fox Inc. has reached a $90 million settlement of shareholder claims arising from the sexual harassment scandal at its Fox News Channel, which cost the jobs of longtime news chief Roger Ailes and anchor Bill O’Reilly.The settlement, which requires a judge’s approval, resolves what are known as “derivative” claims against Fox officers and directors, including: Rupert Murdoch and his son Lachlan, who are Fox’s executive chairmen; James Murdoch, another son and its chief executive, and Ailes’ estate.

The defendants did not admit wrongdoing in agreeing to the settlement filed with the Delaware Chancery Court.

Monday’s settlement calls for insurers of Fox officers, Fox directors and Ailes’ estate to pay the $90 million to the New York-based company for the benefit of shareholders.

Fox will enhance governance and said it created the Fox News Workplace Professionalism and Inclusion Council to ensure a proper workplace environment, bolster training and further the recruitment and advancement of women and minorities.

The council has four independent members, including former federal judge Barbara Jones.

In a typical derivative case, shareholders sue in the name of a company to remedy wrongs inflicted by an alleged lack of oversight by a company’s officers and directors.

Ailes’ estate disputed many of the allegations in the settlement, which was reached before a complaint was formally filed, court records show.

“The Workplace Council gives our management team access to a braintrust of experts with deep and diverse experiences in workplace issues,” Jack Abernethy, co-president of Fox News Channel, said in a statement. “We look forward to benefiting from their collective guidance.”

Shareholders were led by the City of Monroe Employees’ Retirement System in Michigan. Their lawyer, Max Berger, said in a statement the accord would provide “meaningful benefits” for shareholders and Fox News employees.

The accord is not the first big derivative settlement involving a Murdoch-led company.

In 2013, former Fox parent News Corp reached a $139 million settlement of derivative claims that its board turned a blind eye to phone hacking at its London tabloids.

Two years later, the Delaware court approved a $275 million settlement involving “Call of Duty” videogame maker Activision Blizzard Inc over a stock sale by Vivendi SA.

The scandal at Fox began in July 2016 when former anchor Gretchen Carlson filed a lawsuit accusing Ailes of harassment. O’Reilly lost his job in April after being accused of harassment, and has denied wrongdoing.

Ailes died the next month. Fox faces other private civil litigation tied to the scandal.

The case is City of Monroe Employees’ Retirement System v Murdoch et al, Delaware Chancery Court, No. 2017-0833.

 Source; Thomson/Reuters

No – You Can’t Call Evidence Suggesting Your Client is a Criminal Without Instructions

Today’s guest post comes from B.C. injury claims lawyer Erik Magraken

Reasons for judgement were recently published by the BC Supreme Court, New Westminster Registry, with critical comments canvassing the conflict of interest that can arise when a defense lawyer is taking instructions from a Defendant’s insurer.

In the recent case (Kirilenko v. Bowie) the Plaintiff was involved in a collision and sued for damages.  The plaintiff alleged the collision caused a severe and disabling traumatic brain injury.

Mid trial the Defendant’s lawyer brought an application seeking permission for a police officer to testify who would provide evidence of both the Plaintiff’s and Defendant’s involvement in what the court described as “the drug culture“.

The Defendant’s lawyer argued this evidence would be important in helping the Court’s assessment of damages.

In refusing this evidence in the court noted that counsel would not provide “a straight answer” about whether they had instructions from the Defendant directly to call such potentially damaging evidence (as opposed to the Defendant’s insurer).

In refusing to allow the evidence in Mr. Justice Saunders provided the following reasons:

[11]         If the defendants were to tender evidence in this proceeding of the plaintiff having been trafficking in drugs along with the defendant Ms. Bowie, I would, in the first instance, have expected that evidence to come from Ms. Bowie. Ms. Bowie’s name is not on the list of defence witnesses. The natural inference that arises from the defence’s decision not to call Ms. Bowie is an adverse one: that she does not support Cst. Tumbas’ evidence. Had Ms. Bowie testified to that effect, counsel could not call evidence to the contrary, as that would impeach their own client. I do not see how the defence should be entitled to avoid that result, simply through the expediency of not calling Ms. Bowie’s testimony. A party may not do indirectly that which it is prohibited from doing directly.

[12]         This is not just an evidentiary issue. It is an ethical one as well.

[13]         In the eyes of the court, it is Ms. Bowie, and not her insurer, who is defence counsel’s client. There have been references made to insurance in this case – for example, references by the quantum experts who have been called as to ICBC’s involvement in approving certain expenses in regards to Mr. Kirilenko’s rehabilitation. Ms. Bowie’s liability insurer, if it is ICBC, would of course have the exclusive right to conduct the action and instruct counsel under s. 74.1 of the Insurance (Vehicle) Regulation, B.C. Reg. 447/83. However, even if that were the case, I would hesitate to allow defence counsel, on the insurer’s instructions, to tender evidence implicating a defendant insured in criminal conduct without that defendant having been given explicit notice and the opportunity to consult counsel as to her rights, and possibly to be heard on that point.

[14]         To put the matter more simply, in attempting to advance evidence possibly detrimental to the interests of Ms. Bowie, defence counsel would appear to be potentially in a conflict, acting in favour of one client to the detriment of another. I asked counsel directly whether they had instructions from Ms. Bowie that would permit them to tender evidence implicating her in criminal activity. I did not get a straight answer. The existence of any such conflict would have to be ruled out or resolved before this evidence could be admitted, or before Cst. Tumbas could be called.

[36]         I find nothing in the circumstances of this case justifies an order that Cst. Tumbas be allowed to testify and he will not be called as a witness.

How to Prevent and Thaw Frozen Pipes

Excerpted article was written by

Frozen pipes are a serious threat that can affect any Canadian home during the winter. Not only can the issue leave you without water, a frozen pipe could lead to an even bigger inconvenience – burst pipes. A burst pipe usually involves a messy clean-up, and potentially expensive property damage.

As you may remember from grade seven chemistry, while most substances contract when they freeze, water is unique because it expands. This expansion will put a great deal of pressure on whatever is holding it, including your water pipes. If this pressure lasts long enough, it can cause pipes to break – no matter how strong the pipes may be.

Pipes that freeze most frequently are those that are exposed to severe cold, including ones found in unheated areas of your home (like attics, crawl spaces and the garage), and those that run against exterior walls with little or no insulation.

Here are few tips to help protect your home from potential damage of frozen pipes.

Before a deep freeze

  • When summer garden watering is over, be sure to close inside valves supplying your outdoor hose with water, drain the line, and then disconnect the hose from the spigot.
  • Insulate all accessible pipes – especially those more susceptible to freezing. If you’re not sure how to do this or what type of insulation to use, ask at your local hardware store or call a licensed plumber.
  • Have all pipe seals checked. Be sure to repair and fill all cracks and holes you find on your home’s outside walls (note: caulk typically needs to be applied in temperatures of at least 4 degrees Celsius). Use only a sealant or caulk approved for exterior use.
  • Consider installing a water leak sensor in areas where you might expect problems. The sensor will send you an alert when water leakage is detected to allow you to act quickly on any developing problems.

When temperatures drop

  • Listen to daily weather reports, and be on alert for winter advisories and freezing temperatures. Any temperature under 0 degrees Celsius could lead to frozen pipes.
  • During severe cold, keep exterior doors to unheated spaces, like garages, closed so the cold has a harder time getting in.
  • If kitchen, bathroom, or laundry room sink pipes are located near exterior walls, leave cabinet doors open so warm air can circulate around them. Also consider using a fan to help circulate warmer air around them.
  • If you’re really concerned freezing may occur, turn taps on to a very slow drip during extreme cold snaps to help prevent water from freezing and to relieve pressure if some water does freeze. Ensure that someone is home or that a water leak sensor is installed if you choose to do this as faucets should not be left open and unattended.

Burst water pipe
How to test for frozen pipes (and how to thaw them)

  • Check your pipes by turning on the faucet (both hot and cold). If only a trickle of water comes out, or none at all, you may have a frozen pipe. The source of the freeze is most likely near an exterior wall or where the main water supply enters your home.
  • Heat up the pipe (beginning at the faucet and working toward the frozen section) using a blow dryer, or by wrapping the pipe with towels soaked in hot water. Never use an open flame torch to heat a pipe up.
  • Keep the faucet open as you treat the pipe. Water will begin to flow more steadily as ice melts. The running water will also help to speed the melting process.
  • Check all other faucets in your home. If one pipe has frozen, others may have frozen as well.

If you are unsure which pipe might be frozen, or just aren’t comfortable thawing it yourself, call a licensed plumber to come out immediately.

Going on a winter vacation?

  • If you’ll be going away for more than a couple days during colder months, consider turning off the water main and drain the water from your plumbing system (check out this video to learn how).
  • Keep your thermostat set at a temperature above 15 degrees Celsius in the home.
  • Have a responsible adult check on your home each day while you’re away to help mitigate any damage should a burst pipe occur. Be sure to check your homeowner’s policy to confirm how often your home should be checked while you are away.

Your home insurance coverage for damages due to freezing and burst pipes may be void if you are away for an extended period and did not take necessary precautions to prevent these issues, so make sure you talk to your insurance agent or broker about the best options for you and your home before you go away.

allstate.ca

“Falling Back” To More Pedestrian And Cyclist Motor Vehicle Accidents

Article by Michael Blinick and Michelle Legault

As Daylight Savings Time ends, so begins a new time for drivers in Ontario. Drivers must take extra care of their surroundings not only because of the weather but also because of reduced visibility due to less daylight. These shorter days and longer nights bring the risk of more motor vehicle accidents with pedestrians and cyclists.

One study estimates that pedestrians are three times more likely to be fatally struck by a vehicle in the weeks that follow the end of Daylight Savings Time.1 Accidents occur mostly because drivers have not adjusted their behaviours to account for less daylight during the morning and nighttime rush hours.2

Toronto is already noticing an increase in motor vehicle accidents involving pedestrians and cyclists. On November 3, 2017 – two days before Daylight Savings Time ended – there were ten motor vehicle accidents involving pedestrians, and one involving a cyclist.3 Nine of these incidents happened before 9:00 a.m.4

Last year, there were a reported six accidents involving pedestrians or cyclists on the Sunday that Daylight Savings Time ended.5 A further three accidents happened the following day.6 If past and recent statistics indicate what could happen over the next few weeks, then drivers and their insurers are likely to have an increased number of accidents to address.

Post-Accident: Steps for Insurers

First Party Insurers

First party insurers are unlikely to have claims from drivers involved in accidents with pedestrians or cyclists. Rather, the claims are likely to come from the pedestrians or cyclists themselves.

Accident benefits are available to all parties involved in a motor vehicle accident regardless of fault. A pedestrian or cyclist who has their own motor vehicle policy can receive benefits from their insurer. However, someone who does not have their own policy could be entitled to claim accident benefits as an unnamed insured through another policy.7The classic example is a college or university student who lives at home with a parent and would be insured under their policy. The pedestrian or cyclist could also claim benefits through the insurer of the driver involved in their accident.8 If the driver did not have insurance, then the pedestrian or cyclist would be able to claim through the Motor Vehicle Accident Claims Fund as a last resort.9

Given the various sources for accident benefits, insurers should investigate whether there could be a priority dispute. Investigation should begin as soon as the insurer receives a completed application for accident benefits by a cyclist or pedestrian. From that date, there is a 90-day limitation period for identifying other insurers and notifying them of the potential requirement to pay accident benefits.10 An insurer would be wise to conduct an examination under oath (“EUO”) of the pedestrian or cyclist as soon as an application or notice of a claim is provided. The examination will create a better understanding of the different insurance policies available to respond to the accident and which insurer(s) should respond.

If a cyclist is not at fault for an accident, then property damage to their bicycle can also be covered by the driver’s insurer.11However, some cyclists have coverage for their bicycles through home insurance policies.12 A cyclist’s own insurance would thus likely be the first resort for coverage regarding any property damage.

Third Party Insurers

Third party insurers are likely to have tort claims arising from accidents with pedestrian and cyclists. There are certain points about liability and damages with these kinds of claims that will be important for insurers to remember.

On liability, insurers should be aware of the “reverse onus” imposed on drivers involved in collisions with pedestrians or cyclists. The Highway Traffic Act states that a driver who collides with these individuals must prove that their negligence did not cause the collision.13 In other words, a pedestrian or cyclist plaintiff does not need to prove negligence on a balance of probabilities, as is the usual onus in civil cases. This “reverse onus” situation underscores the importance of drivers gathering evidence when an accident first happens. Photographs, statements, and electronic data can help prove whether a driver was negligent in the particular circumstances.

On damages, insurers should be aware of the kinds of injuries that pedestrians and cyclists experience. While many experience objective, orthopedic injuries such as fractures and broken bones, many also suffer significant soft tissue injuries. These injuries are more difficult to identify and can lead to chronic pain issues over time. Concussions are also common injuries that are difficult to detect and diagnose. The science around concussions and their long-term effects is still largely developing. As such, insurers should be aware of the possibilities for different kinds of damages and seek out appropriate medical examinations for pedestrian and cyclist plaintiffs. Any evidence about a plaintiff’s accident-related injuries can help determine if they meet the tort threshold for damages should the claim go to trial.

Post-Accident: Steps for Drivers

Despite taking extra care, some drivers will find themselves involved in accidents with pedestrians or cyclists over the next few weeks.

If an accident happens, the first step is to make sure the pedestrian or cyclist gets appropriate medical attention. Call an ambulance if one is required or requested.

Given the reverse onus on drivers in the circumstances, the next step is to gather as much evidence as possible about the accident. Overall, there needs to be enough evidence to meet the reverse onus and disprove negligence. Write a statement about what happened, and take photographs of the accident scene. Photographs of damage to any vehicles and bicycles are also helpful. If there were any witnesses, ask for their version of the events and contact information. If possible, have the witnesses write all of this information down. Data from more modern vehicles and equipment can also be of assistance. Save any dashcam videos and Electronic Control Module (“ECM”) or “black box” data from any vehicles before they are moved from the accident site. Any camera footage from nearby buildings or parking lots should also be requested and saved.

Any accident that involves more than $2,000 of property damage or personal injury must also be reported to the police.14 Although damages or injuries may not seem severe, drivers should err on the side of caution and report accidents at the nearest collision reporting centre.

Last, drivers should also report any accidents to their motor vehicle insurers. While a driver may not have claims for property damage or accident benefits, as outlined above, the pedestrian or cyclist involved could have these claims through the driver’s insurer.

Conclusion

With reduced daylight hours, there is a greater need for drivers to be aware of the pedestrians and cyclists that share the roads. While prevention is the most important first step, drivers and their insurers should be aware of what other steps can be taken if an accident occurs. Information about how to address injuries, property damage, and liability will all be useful if an accident leads an insurance claim or legal dispute.

See footnotes at Mondaq

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

BC Court of Appeal Upholds Across The Board Mitigation of Damages Reduction

Today’s guest post comes from B.C. injury claims lawyer Erik Magraken

Reasons for judgement were published this week upholding a trial judge’s 50% reduction of damages in a personal injury lawsuit for failure to mitigate.

In the recent case (Mullens v. Toor) the Plaintiff was injured in a 2012 collision caused by the Defendant.  The Plaintiff suffered physical and psychological injuries and the Court concluded the Plaintiff’s recovery could have been improved had she more diligently followed medical advice.  As a result the Plaintiff’s assessed non-pecuniary damages, loss of earning capacity, loss of pension and deferred profit sharing were reduced by 50% and the future cost of care by 10%.

The Plaintiff appealed arguing the failure to mitigate reduction should only apply to her non-pecuniary damages.  The BC Court of Appeal disagreed.  In upholding the trial result the Court provided the following reasons:

[54]         Failure to mitigate is a positive allegation that should be pleaded and argued at trial:  Hosking v. Mahoney, 2010 BCCA 465 at para. 34.  Ms. Mullens thus submits that the judge erred in deciding issues on a basis that was not specifically pleaded or argued before him and properly should have invited counsel to address the claim: see e.g., Carmel Pharmacy Ltd. v. Tri City Contracting (B.C.) Ltd., 2014 BCSC 337 at para. 2.

[55]         In their response to civil claim the respondents pleaded as follows:

The Plaintiff has failed to follow medical advice with respect to treatment or exercise.

The Plaintiff could, by the exercise of due diligence, have reduced the amount of any alleged injury, loss, damage or expense, and the Defendants say that the Plaintiff failed to mitigate her damages.

[56]         The respondents say it is a mischaracterization to say that they did not argue for a reduction across all heads of damages because of a failure to mitigate.  A fair reading of the written submissions and the evidence as presented at trial is that mitigation was a key issue for all of Ms. Mullens’ claims.

[57]         In my view, the respondents’ pleading is clearly not deficient.  In Saadati v. Moorhead, 2017 SCC 28 at paras. 10‑12, Brown J., for the Court, found that a claim for “general damages for pain and suffering, loss of earning capacity past, present and future, loss of opportunity, loss of enjoyment of life, loss of physical heath…” was sufficiently broad to put the opposing party on notice that the claim encompassed mental injury.  Here the pleading is explicit.

[58]         Much of the evidence at trial, both in direct and cross-examination, concerned matters related to the mitigation issue pleaded: the appellant’s failure to return to work, her delay in taking medication, not seeking psychiatric treatment, not having consistent treatment, and the delay in obtaining recommended treatment being a negative factor in her prognosis.  These issues were canvassed by both the expert witnesses (Dr. Zoffman, Dr. Finlayson, Dr. Robertson, Dr. Maloon) and lay witnesses (Mr. Gill, Ms. Macpherson, Ms. Percy and Mr. Towsley).

[59]         The issue of mitigation was both specifically pleaded and extensively explored at trial.  Experts testified to the mental health benefits of returning to work and the benefits of comprehensive psychiatric treatment.  Counsel raised a failure to mitigate in general terms during closing submissions, and made specific reference to the benefits of returning to work, such as improved mental heath.  The specific arguments made with respect to a failure to mitigate past loss of income were logically connected to the other heads of damage claimed.

[60]         In my view, it cannot fairly be said that mitigation was not an issue properly before the court with respect to all of Ms. Mullens’ claims for damages.  I see no merit to this ground of appeal.

 

Do drivers with dashcams deserve discounts?

SUSAN LAZARUK | Vancouver Sun

Alex Jang, owner of BlackboxMyCar in Richmond, said he’s had clients use dashcam footage to help government adjusters sort out who’s responsible, thereby speeding up claim settlements and saving ICBC money. He said ICBC should reward drivers with a discount of 10 to 15 per cent if they install a dashcam, as he said some insurance companies in the U.K., South Korea and Thailand already do.

“It gets rid of all the ‘he said, she said,’ ” said Jang.

Dashcam footage can also be used to prove fraud, he said. In 2012, an Ontario driver was charged with defrauding his insurer after the driver he hit recorded the offending driver backing up to him on Highway 401.

And Jang said a dashcam can save drivers money if the model can be left on when the car is unoccupied, like when his car was damaged in a hit-and-run “and I was able to capture the licence number and I didn’t have to pay a penny.”

Dashcams could help in a hit-and-run, but there is no evidence that installing one will make you a better driver or lower your odds of getting into a crash, said ICBC spokeswoman Joanna Linsangan. Having video footage of a crash can be included in a driver’s case along with statements of the drivers, witnesses and police, as well as photos to determine liability, she said.

But because the footage shows only one perspective, “it only tells part of the story,” she said.

As for assessing blame in a hit-and-run, “We would welcome the footage, as it will help us with our investigation,” she said.

B.C. Attorney General David Eby said dashcam footage isn’t going to improve a driver’s performance, and incriminating footage could be erased by the offending driver or one planning fraud.

He said, instead, ICBC is going to pilot “telematics” technology that records the car’s speed, how it turns and brakes, and other safe-driving data that ICBC can download to use to determine a driver’s risk. Rate reductions also can be based on that data, he said.

“The technologies we’re looking at currently are trying to change driver behaviour,” said Eby. “Research shows people drive better when they have it (telematics) in their car and have voluntarily taken it on, because they know it affects their rates if they drive differently.”

The data can be used for investigating liability, if captured before the car is sold or destroyed, he said.

Eby said drivers aren’t discouraged from providing relevant dashcam footage to ICBC, but “it just doesn’t seem like the most obvious response to fraud.”

Aaron Sutherland of the Insurance Bureau of Canada said dashcam footage may help a driver determine liability and save him paying his own deductible, but he said collecting telematics through apps is better at determining driving habits. He said insurers in Alberta and Ontario, where there is competition for car insurance, already offer discounts based on these apps, and insurers can also use the data to provide drivers with discounts based on their actual monthly usage.

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