February 10, 2021
For the fifth consecutive year – and the seventh time overall since 2009 – Latham litigation victories were chosen among the top California wins of the year by the Daily Journal. The publication’s Top Verdicts list annually honors the “largest and most significant verdicts and appellate reversals” from the prior year.
Latham’s success leading the joint defense effort that secured the complete dismissal, with prejudice, of all claims against our client BMW and several other German automakers in the so-called “Circle of Five” emissions conspiracy litigation was chosen among the Top Defense Verdicts of 2020. The cross-office team was led by Bay Area partners Daniel Wall and Belinda Lee, and New York/London partner Michael Lacovara, with Bay Area associates Alicia Jovais, Elizabeth Yandell, Ariel Rogers, and Kat Rodarte.
Discussing the California federal case as well as a related dispute in Europe, Lee noted, “There are some pretty meaningful distinctions between US law and EU antitrust and competition laws,” a fact crucial to the defense.
Insurance litigation of national importance for policyholders was also chosen by the Daily Journal, as a Top Appellate Reversal for 2020. In the case, a San Diego-based team obtained a significant victory in March 2020 when the California Supreme Court issued a unanimous opinion in favor of Latham’s longstanding client Montrose Chemical Corporation of California. Montrose had sustained over $150 million in damages arising from environmental contamination at and from its DDT-manufacturing operations in Torrance, California (although the Government had sought multiple billions of dollars in damages). After achieving favorable settlements with its primary insurance carriers, Montrose turned its sights on its excess insurers. Despite having billions of dollars of potential insurance coverage spread over 30 years of coverage triggered by Montrose’s continuous, “long-tail” environmental liabilities, each of Montrose’s excess insurers asserted they were not required to indemnify the liabilities because Montrose was required to “horizontally exhaust” all lower lying policies in every implicated policy year. Conversely, Montrose argued that, consistent with the terms of each policy, it could obtain coverage from any insurer provided that the policies immediately underlying that policy were exhausted.
Adopting Montrose’s arguments across the board, the Supreme Court held in a unanimous 7-0 opinion that Montrose is entitled to coverage under any policy covering its continuous loss once it has exhausted directly underlying excess policies for the same policy period. The Court’s approach ensures policyholders are promptly indemnified for their losses, eliminates the need for policyholders to litigate coverage defenses under each policy, and more fairly assigns to insurers the cost of pursuing contribution battles to assign liability amongst themselves. Because California routinely leads the nation on insurance issues, the decision should have significant influence and unlock tens of billions in proceeds for policyholders across the country. The Daily Journal case profile [hyperlink to reprint] noted, “Since it was decided, others have asked courts to extend its logic to the primary insurance arena.” The San Diego-based team was led by partners John Wilson (who argued Montrose’s position at the Supreme Court), Brook Roberts and Drew Gardiner and associate Steven Lesan, with assistance from associates John Niemeyer and Irene Fedoseienko, as well as retired partners David Mulliken and Kristine Wilkes.
In the published profile, Roberts explained that, “It was an incredibly complex case with many moving parts.”