Court of Appeals September Session: Arguments of Interest for September 5, 2017

Welcome back to the first day of argument for the Court of Appeals’ 2017-18 term. The Court is back for the first full argument term after its summer break, the first with new Judge Paul Feinman sitting. With lots of exciting cases for New York law on the docket this term (though probably not as exciting as the Supreme Court’s OT17), the first day of argument has begins with four cases on the docket (the Court’s argument summaries can be found here) involving the following issues: (1) whether a police scanner needs to be attached to or designed for use in a vehicle to violate the Vehicle and Traffic Law; (2) whether commencement of a rescission action before the time for performance has occurred constitutes an anticipatory breach of a contract; (3) whether sections 8-102(16)(c) and 8-107(1)(a) of the New York City Administrative Code preclude a plaintiff from bringing a disability discrimination claim based solely on a perception of untreated alcoholism; and (4) whether the State Education Department can withhold documents concerning preschool special education audit procedures under the Freedom of Information Law exemption for documents compiled for law enforcement purposes.

No. 104 Makinen v City of New York

In Makinen v City of New York, two New York City police officers sued the City and the Police Commissioner alleging that they were discriminated against because they were perceived to be untreated alcoholics, a form of disability discrimination.  The problem is, they weren’t alcoholics at all, and the express terms of the New York City Human Rights Law only considers recovered or recovering alcoholics to be disabled.  This is significantly different than the protections of the New York State Human Rights Law and the Americans with Disabilities Act, which do not require an alcoholic to be recovered or recovering to be protected.

That’s the tension that the Second Circuit saw.  When the NYCHRL was adopted, it was intended to be a civil rights floor higher than the protections offered by state or federal law. But in this case, the NYCHRL contains an express limitation on disability for alcoholics not found in state or federal law. If the Second Circuit followed the express language of the NYCHRL, and held that the plaintiffs were not considered disabled because they were perceived as untreated alcoholics, even though they weren’t, it would offer less protection than the purpose of the statute intended.  Following the purpose of the NYCHRL to find the plaintiffs protected, on the other hand, would ignore the statute’s express limitation that only recovered or recovering alcoholics, or those perceived to be so, are protected.

Because no New York Court has addressed this question, the Second Circuit decided not to decide. Instead, it certified the following question to the Court of Appeals: “Do sections 8‐102(16)(c) and 8-107(1)(a) of the New York City Administrative Code preclude a  plaintiff from bringing a disability discrimination claim based solely on a perception of untreated alcoholism?”

On appeal, the City argues that the NYCHRL “does not allow discrimination claims based on a mistaken perception of active alcoholism” because only those who are actually alcoholics, recovering or recovered alcoholics are classified as disabled. The plaintiffs counter that the section’s narrowed definition of disability applies only to people who actually suffer from alcoholism, not to those who are mistakenly perceived to be alcoholics. Now, the Court of Appeals will decide whether the plaintiffs may prevail on their disability discrimination theory.

Expressions Hair Design Update: State Asks Second Circuit to Certify Interpretation of General Business Law § 518 to the Court of Appeals

Seven weeks ago, the Second Circuit asked the parties in Expressions Hair Design v Schneiderman to submit further briefing on whether it should certify to the Court of Appeals the question of how General Business Law § 518, New York’s credit card surcharge law, should be interpreted, whether section 518 is a valid commercial disclosure, and whether the statute validly limits commercial speech as applied to the retailers’ proposed single-sticker pricing scheme.  The parties’ briefs are now in.

Following on the recommendation of Justice Sotomayor in her Supreme Court concurrence, the State argues that the Second Circuit should certify two questions concerning the interpretation of section 518 to the Court of Appeals because the statute’s constitutionality turns on the Court’s answer to those questions.  Particularly, the State asked the Second Circuit to certify these questions:

The Court of Appeals has never addressed the scope of section 518, that is, what exactly the law prohibits.  The State argues that it has consistently interpreted the provision to bar the retailers from showing a single sticker price, but then charging consumers who pay with a credit card more.  “Under this reading, the statute does not apply to a seller that either posts a regular price that is the price that credit-card users pay, or that posts a total dollars-and-cents credit-card price along with a (lower) price for cash users.”  (State’s Brief, at 11).  Although the State claims its interpretation has been consistent, it acknowledges that at least three of the Supreme Court justices expressed doubt about exactly what the law prohibits.  Because of the “lingering interpretive uncertainty over GBL § 518,” the State argues that the Second Circuit should allow the Court of Appeals to resolve any doubt.

The Court of Appeals’ interpretation of section 518 would determine the First Amendment analysis that the Second Circuit must conduct, the State argues, or could show that the statute does not violate the First Amendment “if it were interpreted to prohibit sellers from imposing any price differential on cash and credit-card users—including a cash discount.”  (State’s Brief, at 13-14).  Certification would also allow the Court of Appeals to determine whether the plain text of section 518 may be interpreted in a way to avoid the potential constitutional issue.  Thus, the State argues, “the New York Court of Appeals should be afforded the opportunity to adopt the narrower, less problematic interpretation, using the interpretive tools, presumptions, and standards that it deems proper.” (State’s Brief, at 15 [cleaned up]).

The retailer plaintiffs, on the other hand, argue that certification of the statutory interpretation question to the Court of Appeals is barred by the Supreme Court’s opinion.  The Supreme Court, they argue, “adopted [the Second Circuit’s] interpretation of the law, held that the law proscribes the plaintiffs’ intended speech, and remanded for [the Second Circuit] to analyze § 518 as a speech regulation—an analysis that does not turn on any unsettled question of state law.”  (Plaintiffs’ Brief, at 2 [cleaned up]).  Thus, the Plaintiffs argue, the Supreme Court’s interpretation of the law as a speech regulation forecloses the Second Circuit’s ability to certify “whether the law is a speech regulation (or any other question) to New York state court.”  (Plaintiffs’ Brief, at 17).

Indeed, they point out, although Justice Sotomayor’s opinion is styled as a concurrence, on the point that the case should have been remanded with a direction to certify the interpretation question to the Court of Appeals, she was effectively dissenting from the majority’s refusal to do that.  The Plaintiffs, therefore, argue that the Supreme Court majority’s direction that the Second Circuit decide whether section 518’s ban on credit card surcharges violates the First Amendment allows the Court to do only that, not to certify a question to the Court of Appeals.

Even without their construction of the Supreme Court opinion, the Plaintiffs argue that certification is inappropriate because the Court of Appeals could not construe section 518 as prohibiting any dual pricing scheme because such an interpretation “would directly conflict with a federal statute expressly protecting the right of merchants to provide discounts to cash-paying customers, see 15 U.S.C. § 1666f—and so would likely be preempted under the Constitution’s Supremacy Clause. The constitutional-avoidance doctrine thus has no application in a case like this one, where avoiding one set of constitutional problems necessarily presents the court with an entirely new set of constitutional problems.”  (Plaintiffs’ Brief, at 18).  Finally, the Plaintiffs pointed out that they were not challenging section 518’s application to a two-sticker pricing scheme, so there was no judiciable dispute there to certify to the Court of Appeals.

Given the stark contrast in the parties’ positions, it will be interesting to see which approach the Second Circuit decides to take.  Copies of the State’s brief and the Plaintiffs’ brief are linked here.

 

Court of Appeals Holds Bail Bondsmen Can’t Keep Bond Premium if Defendant Not Released

Arthur Bogoraz is a bad dude.  For more than three years, he ran a multi-million dollar no-fault insurance fraud scheme by convincing radiologists to review MRIs and submit fake insurance claims for payment.  He paid the radiologists kickbacks and then not only pocketed the cash, but used the radiologists’ information to set up fake medical companies to perpetuate the scheme on his own.  After he was caught, he fled to the Ukraine two days before he was supposed to surrender to the authorities.  Bogoraz then flew across the globe on his private plane before he was eventually apprehended in Puerto Rico trying to get back into the U.S.

To ensure he wouldn’t flee again, the trial court set his bail at $2 million.  His wife and other family friends obtained a bail bond from Ira Judelson, who was a licensed bail bond agent affiliated with the International Fidelity Insurance Company, a bail bond surety, in exchange for a premium of $120,560.  Judelson posted the bond with the trial court, which then held a hearing, pursuant to Criminal Procedure Law 520.30, to decide whether it would accept the bond.  The trial court, however, upon review of the bond offered, declined to accept it because Bogoraz failed to establish that the premium paid for the bond was not the fruit of criminal conduct. The Appellate Division affirmed the denial of the bond, and the Court of Appeals denied leave to appeal.  Bogoraz was therefore never released from custody.

Because Bogoraz was never released, his wife asked that Judelson return the bond premium because Judelson was never exposed to the risk that Bogoraz would not appear in court when required.  Judelson, however, refused, arguing that he had earned it upon presentation of the bond to the state court in accordance with the Criminal Procedure Law.

This case, Gevorkyan v Judelson, ensued in federal court.  Finding no controlling law, the District Court applied normal contractual principles and held that the parties’ indemnity agreement allowed for Judelson to retain the premium even though the bond was not accepted by the state court and Bogoraz was never released.  The Second Circuit held that New York law was muddled in the area, and so it certified a question to the Court of Appeals:

Whether an entity engaged in the ‘bail business,’ as defined in [Insurance Law] § 6801 (a) (1), may retain its ‘premium or compensation,’ as described in [Insurance Law] § 6804 (a), where a bond posted pursuant to [CPL] § 520.20 is denied at a bail sufficiency hearing conducted pursuant to [CPL] § 520.30, and the criminal defendant that is the subject of the bond is never admitted to bail.

On the appeal, previewed here, the Court of Appeals held that under the Insurance Law, the bail bondsman may only retain a premium for giving a bail bond where the bond is accepted by the Court and the defendant is released.  This interpretation, the Court held, comports with the purpose of the Insurance Law article governing bail bond premiums, which was to ameliorate the many abuses of the bail bond industry, including that criminal defendants were often taken advantage of and charged exorbitant premiums in exchange for the bond.  The Court thus rejected Judelson’s interpretation of the Insurance Law, which would have allowed him to keep the premium merely because he posted the bond regardless of whether it was ultimately accepted by the trial court, as inconsistent with the statute’s purpose.

The Court also held that “[t]he insurance law principle that premium follows risk further supports this result” (Opn, at 10).  The Court noted that in the insurance context, a premium is generally understood as “consideration paid to an insurer for assuming a risk” (id. at 11).  Because there is no risk to the bail bondsman unless the trial court actually accepts the bond and the criminal defendant is released, the bondsman then can’t have earned the premium unless that happens.

A copy of the Court of Appeals’ opinion can be found here.

Second Circuit Certifies Questions to Court of Appeals Concerning Damages, Interest in Misappropriation of Trade Secrets Cases

Manufacturing plastic security seals is apparently big business.  You know, those seals that are nearly impossible to get off a bottle without a knife but give you a measure of comfort that nobody tampered with your goods before you opened them.  Well, when your company makes those plastic security seals, and three employees steal your trade secrets to take to a competitor, you sue them for misappropriating your hard work and ingenuity.  

That is exactly what happened in E.J. Brooks Co. v Cambridge Sec. Seals, and the plaintiff won at trial.  So, the federal district court ordered the defendants to pay back in damages the costs that they avoided by stealing the trade secrets instead of developing the plastic security seals on their own.  The Court, however, denied the plaintiff’s request for prejudgment interest under CPLR 5001, holding in essence that inclusion of prejudgment interest would be duplicative here because the jury awarded damages from the date of the misappropriation to the date of the verdict.

On appeal, the Second Circuit held that finding liability was easy, but the question of the proper amount of damages for the misappropriation was less so.  The Court explained that New York decisions appear to have authorized a number of different measures of damages in misappropriation of trade secrets cases, but never explicitly the costs avoided measure used by the disctrict court below. So, the Second Circuit decided to certify the question to the Court of Appeals to decide.

The Second Circuit also certified whether the typically mandatory award of prejudgment interest under CPLR 5001 still applies where the plaintiff has already been awarded damages for the entire prejudgment period and an additional award of prejudgment interest would be a windfall.

So, the Second Circuit has asked the Court of Appeals to decide these two certified questions: 


The Second Circuit’s opinion can be found here.

Court of Appeals May-June Session: Arguments of Interest for June 1, 2017

This is it, the final day of argument before the Court of Appeals’ break for the summer.  There are only two cases on the argument docket today (the Court’s case summaries can be found here), which present the following issues: (1) whether a bail bondsman may retain a bail bond premium if the bond is rejected by the court and the defendant is never released from custody, and (2) whether the imposition of a mandatory minimum sentence against a criminal defendant as a persistent felony offender based on non-jury factual findings violates the rule of Apprendi v New Jersey (530 US 466 [2000]).

No. 79     Gevorkyan v Judelson

In this certified question case that the Court accepted back in December, the Second Circuit asks the Court of Appeals to decide whether under New York law, a bail bondsman may retain a premium paid to him by the criminal defendant where the state court rejects the bond offered and the defendant is never released from custody. In Gevorkyan, a criminal defendant obtained a bail bond in the amount of $2 million by paying the bondsman a premium of $120,560. The state court, however, upon review of the bond offered, declined to accept it because the defendant failed to establish that the premium paid for the bond was not the fruit of criminal conduct. The Appellate Division affirmed the denial of the bond, and the Court of Appeals denied leave to appeal. The criminal defendant was therefore never release from custody.

Afterwards Gevorkyan sought in federal court to recover the $120,560 premium she paid for the bond, because the bondsman was never exposed to the risk that the criminal defendant would not appear in court when required. The bondsman refused to return the premium, claiming that he had earned it upon presentation of the bond to the state court. Finding no controlling law, the District Court applied normal contractual principles and held that the parties did not intend for the bondsman to retain the premium if the bond was not accepted by the Court.

Finding a dearth of New York law on the issue on appeal, the Second Circuit certified the question to the Court of Appeals, which will now decide the case. The Second Circuit’s opinion certifying the question can be found here.

What’s interesting is that the Court of Appeals in this case has taken the incredibly rare step of granting oral argument to an amicus curiae, here, the New York Department of Financial Services.  The NYDFS amicus brief argues that neither party has correctly construed the New York Insurance Law provisions governing this situation, and that the DFS, as regulator of the bail bondsman industry, thus has a unique consumer protection interest in this case.


The Court has apparently agreed, and granted the NYDFS five minutes of the argument to set forth its interpretation of the laws. A copy of the NYDFS amicus brief can be found here.

Expressions Hair Design Update: Second Circuit Calls For Further Briefing, Asks Parties to Address Whether Part of Case Should Be Certified to Court of Appeals

After the Supreme Court unanimously held in March that New York’s credit card surcharge law regulates speech, the Second Circuit has taken up the case again. As a refresher, New York General Business Law § 518 provides that that “[n]o seller in any sales transaction may impose a surcharge on a holder who elects to use a credit card in lieu of payment by cash, check, or similar means.” That prohibits retailers from charging a surcharge to consumers who pay for things with credit cards, but allows the retailers to offer a discount to those who pay in cash.  Five New York businesses challenged the statute as a violation of their First Amendment rights by impermissibly regulating how they communicate their prices to customers.

The Second Circuit issued an order on Monday restoring the case to its active docket and asking the parties to provide further briefing on three issues:

(1) Whether as applied to the retailers’ proposed single-sticker pricing scheme, where the retailers would advertise one price, but charged a slightly higher price to customers who pay with credit cards, General Business Law § 518 is “a valid commercial speech regulation under the four-part analysis laid out in Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557 (1980)?”  In Central Hudson, the Supreme Court held that courts considering a restriction on commercial speech must evaluate: (1) whether the commercial speech concerns lawful activity and is not misleading, (2) whether the asserted governmental interest is substantial, (3) whether the regulation directly advances the governmental interest asserted, and (4) whether it is not more extensive than is necessary to serve that interest (id. at 566). The first criteria seems to me the most relevant here, whether the retailers’ proposed single-sticker price is misleading to the customers when that is not the price that will be charged when the customers use credit cards.

(2) Whether as applied to the retailers’ proposed single-sticker pricing scheme, General Business Law § 518 is “a valid disclosure requirement under Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626 (1985)?” In Zauderer, the Supreme Court upheld an Ohio attorney advertising regulation requiring attorney advertisements for contingency cases to disclose when the potential client will have to pay for the expenses of the litigation if the claims did not succeed.  The Court reasoned, because the potential client didn’t understand the difference between legal “fees,” which would not be due for a losing case, and “expenses,” which could be, the disclosure requirement compelling attorneys to say more than they wanted to about the potential costs of the case was a valid regulation of the commercial speech.  Is the same true of section 518, the Second Circuit asks?  Can the New York credit card surcharge ban be viewed as a valid disclosure requirement so that customers aren’t confused when they see one advertised price, but are charged another when they use a credit card to pay?

(3) Whether the Court should certify the unsettled interpretation of General Business Law § 518 to the Court of Appeals, as Justice Sonia Sotomayor in her concurrence in the judgment at the Supreme Court would have required? Specifically, Justice Sotomayor pointed out that the Supreme Court’s limited holding that section 518 regulates speech was only a “quarter-loaf” of the issues in the case.  The Supreme Court was constrained without an interpretation of the scope of New York’s credit card surcharge ban, she noted.  Thus, the Second Circuit, she said, erred by failing to ask the Court of Appeals to provide a definitive interpretation of what pricing schemes section 518 prohibits.  As Justice Sotomayor put it:


The parties now have until June 13th to provide the Second Circuit with answers to these questions, after which the Court will decide whether to certify the interpretation question to the Court of Appeals, whether to hold oral argument, or whether to just decide the case on its own.

I think Justice Sotomayor’s points are well taken. If the Court of Appeals is asked to interpret General Business Law § 518, the Court’s guidance would go a long way to deciding or at least limiting the retailers’ challenges to section 518. From the way the questions are structured, I wouldn’t be surprised if that is the route the Second Circuit decides to take.

The Second Circuit’s order can be found here.

Second Circuit Certifies Question to Court of Appeals Whether Untreated Alcoholics are Disabled Under NYCHRL

In Makinen v City of New York, two New York City police officers sued the City and the Police Commissioner alleging that they were discriminated against because they were perceived to be untreated alcoholics, a form of disability discrimination.  The problem is, they weren’t alcoholics at all, and the express terms of the New York City Human Rights Law only considers recovered or recovering alcoholics to be disabled.  This is significantly different than the protections of the New York State Human Rights Law and the Americans with Disabilities Act, which do not require an alcoholic to be recovered or recovering to be protected.

That’s the tension that the Second Circuit saw.  When the NYCHRL was adopted, it was intended to be a civil rights floor higher than the protections offered by state or federal law. But in this case, the NYCHRL contains an express limitation on disability for alcoholics not found in state or federal law. If the Second Circuit followed the express language of the NYCHRL, and held that the plaintiffs were not considered disabled because they were perceived as untreated alcoholics, even though they weren’t, it would offer less protection than the purpose of the statute intended.  Following the purpose of the NYCHRL to find the plaintiffs protected, on the other hand, would ignore the statute’s express limitation that only recovered or recovering alcoholics, or those perceived to be so, are protected.

Because no New York Court has addressed this question, the Second Circuit decided not to decide. Instead, it certified the following question to the Court of Appeals: “Do sections 8‐102(16)(c) and 8-107(1)(a) of the New York City Administrative Code preclude a  plaintiff from bringing a disability discrimination claim based solely on a perception of untreated alcoholism?”

The Court of Appeals will now take up the question.  Can the remedial purpose of a discrimination statute trump its express language where the purpose offers more protection than does the text? I think the Court would be hard pressed to overlook the express limitation that was chosen, offering protection only to recovered or recovering alcoholics. If that limitation is out of line with the protections intended, that is a question for the Legislature to resolve, not the courts.

The Second Circuit’s opinion can be found here.

Court of Appeals Rejects Bright Line Rule That Only Direct Employers May Be Liable For Discrimination Under The Human Rights Law

In Griffin v Sirva, Inc. (No. 35) previewed here, two movers employed by Astro Moving and Storage Co. sued the parent company of Allied Van Lines, Sirva, Inc., for employment discrimination under the New York State Human Rights Law after they were fired by Astro pursuant to a Sirva policy forbidding the employment of persons with criminal convictions. The United States Court of Appeals for the Second Circuit, recognizing the unsettled nature of New York law in the area, certified three questions to the Court of Appeals seeking an interpretation of Human Rights Law § 296(15), prohibiting “employers” from discriminating on the basis of a criminal conviction, and § 296(6), which bars aiding and abetting discrimination.  Particularly, the Second Circuit asked: “(1) Does Section 296(15) … limit liability to an aggrieved party’s ‘employer’? (2) If Section 296(15) is limited to an aggrieved party’s ‘employer,’ what is the scope of the term ‘employer’ for these purposes, i.e., does it include an employer who is not the aggrieved party’s ‘direct employer,’ but who, through an agency relationship or other means, exercises a significant level of control over the discrimination policies and practices of the aggrieved party’s ‘direct employer’? (3) Does Section 296(6) …, providing for aiding and abetting liability, apply to § 296(15) such that an out-of-state principal corporation that requires its New York State agent to discriminate in employment on the basis of a criminal conviction may be held liable for the employer’s violation of § 296(15)?”

Resolving the first certified question, the Court of Appeals held that section 296(15) liability is limited only to an employee’s “employer.” Section 296(15) provides that an employer may not deny employment to a person with a prior criminal conviction where it would violate Article 23-A of the Correction Law to do so. Because Correction Law Article 23-A further specifies that it applies to “any public or private employer” (Correction Law § 751), the Court held, reading the two statutes together required the conclusion that only an “employer” may be held liable for discriminating in violation of Human Rights Law § 296(15).

When defining what is an “employer,” however, the Court declined the bright line rule offered by Sirva, that an employer that may be liable under section 296(15) is limited only to an individual’s direct employer. Instead, the Court held, the test is more nuanced, and must be determined on a case-by-case basis.  Adopting the test for what is an employer long used by the Appellate Division departments, the Court held that courts should consider four factors when determining whether an entity that is not a direct employer nevertheless qualifies as an “employer” for a claim under section 296(15): “(1) the selection and engagement of the servant; (2) the payment of salary or wages; (3) the power of dismissal; and (4) the power of control of the servant’s conduct” (Opn, at 12-13).  The primary consideration, the Court held, is control, whether the entity has substantial control over the individual’s work.

Under this test, third party entities may be found liable for discrimination under the Human Rights Law, as long as there exists an exercise of sufficient control over the work to find that the entity is an “employer.” Because this test depends on the particular facts of each case, further case law development will be required, in accordance with the prior Appellate Division precedent, to find where the tipping point exists in the continuum of control.

Finally, the Court clarified that Human Rights Law § 296(6) “extends liability to an out-of-state nonemployer who aids or abets employment discrimination against individuals with a prior criminal conviction” (Opn, at 14). The Court held that this provision must be construed broadly, and expressly applies to “any person.”  The Court, therefore, rejected the federal district court’s conclusion that aiding and abetting liability cannot lie against an out-of-state entity unless it is a joint employer.

The Court of Appeals’ opinion can be found here.

Court of Appeals Accepts Second Circuit Certified Question Whether Reinsurance Cap Limits Liability for Both Losses and Expenses

On January 10, 2017, in Global Reinsurance Corporation of America v Century Indemnity Company, the Court of Appeals formally accepted the following certified question from the U.S. Court of Appeals for the Second Circuit:

“Does the decision of the New York Court of Appeals in Excess Insurance Co.v. Factory Mutual Insurance Co., 3 N.Y.3d 577 (2004), impose either a rule of construction, or a strong presumption, that a per occurrence liability cap in a reinsurance contract limits the total reinsurance available under the contract to the amount of the cap regardless of whether the underlying policy is understood to cover expenses such as, for instance, defense costs?”

In Global Reinsurance, Global issued reinsurance certificates to Century to reinsure insurance policies that Century had issued to Caterpillar Tractor Company.  After Caterpillar was sued in numerous cases relating to alleged exposure to asbestos in Caterpillar’s products, Century was obligated to pay for Caterpillar’s defense expenses in addition to paying up to the liability limits of its policies.  According to Global, Century has paid $60 million to Caterpillar and has agreed to pay $30.5 million more.  Of that amount, Global alleges that 10% is the actual liability loss and 90% is defense costs.

In this dispute, the parties each interpret the reinsurance certificate differently.  Global claims that its liability is capped by the total amount in the “Reinsurance Accepted” section of the certificate, which was intended to include both liability and expenses.  Century counters that the reinsurance cap applies only to the “loss” (e.g., settlement amount, judgment award), and that Global is liable to pay all expenses that exceed that amount.

The U.S. District Court for the Southern District of New York adopted Global’s interpretation, holding that the certificates unambiguously limited Global’s liability for both losses and expenses. See Glob. Reins. Corp. of Am. v. Century Indem. Co., No. 13 Civ. 06577, 2014 WL 4054260, at *4‐7 (S.D.N.Y. Aug. 15, 2014).  Noting that the Court of Appeals had not explicitly spoken on this issue, whether a liability cap in a reinsurance policy limits liability for both losses and expenses, the Second Circuit certified the question to the Court of Appeals.  The Court will now decide the issue upon full briefing and argument.

The Second Circuit’s opinion can be found here.

The Court of Appeals’ order can be found here.

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