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07/30/2014
Thomas Killion v. KeHE Distributors
District court erred in granting Employer summary judgment on outside-sales-exemption issue and further erred in excluding from the collective action those employees who had signed the waivers.
United States Court of Appeals for the Sixth Circuit

KeHE is a distributor of specialty ethnic and health foods to retailers, some of which are  independent stores and some of which are large chain stores.  The plaintiffs were employees who classified as sales representative  and were

Submitted by: Kay Gaffney, Barnes Alford - Posted: 07/30/2014
07/18/2014
Demag v. Better Power Equipment, Inc.
VERMONT SUPREME COURT MAKES RADICAL CHANGE TO PREMISES LIABILITY LAW: DECISION MAKES IT EASIER FOR VISITOR TO RECOVER FOR INJURIES ON BUSINESS PREMISES
Vermont Supreme Court

The Vermont Supreme Court has abolished the old premises liability distinction between “business invitees” (i.e., customers) and licensees (other visitors).  The Court has now formally adopted ageneral negligence standard of

Submitted by: Walter E. Judge, Jr., Downs Rachlin Martin PLLC - Posted: 07/21/2014
07/15/2014
Fisher v. University of Texas at Austin
Fifth Circuit affirms consideration of race in University of Texas’s holistic review of undergraduate applicants.
United States Court of Appeals for the Fifth Circuit.

In 2008, Abigail Fisher, an Anglo college applicant to the University of Texas at Austin, was denied admittance to the freshman class. Ms. Fisher’s high school class rank was below the 90th percentile, preventing her automatic acceptance und

Submitted by: : Jim Clancy and Clint Twaddell, Branscomb, P.C. - Posted: 07/16/2014
07/15/2014
IMG Worldwide, Inc. v. Westchester Fire Ins. Co.
Sixth Circuit finds excess carrier breached duty to defend and indemnify insured and is liable to pay $7,996,655.57 plus pre-judgment interest
United States Court of Appeals for the Sixth Circuit

IMG sought reimbursement from its primary and excess insurance carriers after settling a lawsuit for nearly $5 million and incurring defense cost of over $8 million.  Both carriers denied coverage when the suit was brought, though a settlemen

Submitted by: Jim Clancy and Jessica R. Mann, Branscomb | PC - Posted: 07/18/2014
07/09/2014
AMERICAN COPPER & BRASS, INC. V. LAKE CITY INDUSTRIAL PRODUCTS, INC.
Sixth Circuit Upholds Class Certification Against Company That Sent An Unsolicited Fax Advertisement
United States Court of Appeals for the Sixth Circuit

Lake City Industrial Products, Inc., a Pennsylvania company, used “fax-blasting” company Business to Business Solutions (B2B) to assist Lake City in creating an advertisement flyer and then distributing it to recipients by facsimile.&n

Submitted by: Maria A. Grover, Knapp, Petersen & Clarke - Posted: 07/09/2014
07/09/2014
INHALE, INC. V. STARBUZZ TOBACCO, INC.
Ninth Circuit Establishes There’s Nothing Special About A Hookah Water Container Which Would Entitle Manufacturer To Copyright Protection
United States Court of Appeals for the Ninth Circuit

In this amended opinion affirming the district court’s summary judgment and award of attorneys’ fees, the court of appeal found in favor of the defendant under the Copyright Act.  The plaintiff, Inhale, Inc. claimed copyright prot

Submitted by: Maria A. Grover, Knapp, Petersen & Clarke - Posted: 07/10/2014
07/09/2014
DILTS v. PENSKE LOGISTICS, LLC.
Ninth Circuit Finds State Laws Relating To Meal And Rest Breaks Are Not Preempted By Federal Laws; Drivers’ Class Action Suit Can Proceed Against Trucking Company.
United States Court of Appeals for the Ninth Circuit

The plaintiffs, a certified class of 349 delivery truck drivers and installers employed by Penske Logistics, LLC, and Penske Truck Leasing Co., brought a lawsuit alleging violations of California’s meal and rest break laws.  Plaintiffs

Submitted by: Maria A. Grover, Knapp, Petersen & Clarke - Posted: 07/10/2014
07/07/2014
DOUGLAS v. REGIONS BANK.
Fifth Circuit Implements Two Step Test To Determine If Delegation Provision In An Arbitration Agreement Is Valid
Untied States Court of Appeals for the Fifth Circuit

Some arbitration agreements contain a requirement, called a “delegation provision,” which obliges the parties to submit the question of a dispute’s arbitrability to an arbitrator.  In this case, Shirley Douglas opened a chec

Submitted by: Maria A. Grover, Knapp, Petersen & Clarke - Posted: 07/08/2014
07/02/2014
Merrimon v. Unum Life Insurance Company
1st Cir Finds no ERISA violation in use of RAAs as method of paying life insurance
United States Court of Appeals for the First Circuit.

              Insured plaintiffs challenged the insurer’s use of retained asset accounts (RAAs) as a method of paying life insurance benefits in the ERISA context.  The First Circuit found that the

Submitted by: Kurt Rozelsky and Emily Bridges, Smith Moore Leatherwood, LLP. - Posted: 07/05/2014
07/01/2014
Estate of McCall v. U.S.
Eleventh Circuit holds that Florida statute capping noneconomic damages in wrongful death cases violates Florida Constitution.
United States Court of Appeals of the Eleventh Circuit

Michelle McCall’s estate and surviving family sued the United States under the Federal Tort Claims act for medical malpractice that resulted in Ms. McCall’s death. In a bench trial, the district court found Ms. McCall’s noneconom

Submitted by: Jim Clancy and Clint Twaddell, Branscomb, P.C. - Posted: 07/21/2014
07/01/2014
NO Gas Pipeline v. F.E.R.C
D.C. Circuit affirms dismissal for lack of standing in environmental activists’ challenge to natural gas pipeline between New Jersey and New York.
DISTRICT OF COLUMBIA CIRCUIT COURT OF APPEALS

The Federal Energy Regulatory Commission entered an order granting a certificate of public convenience and necessity to Texas Eastern Transmission, LP and Algonquin Gas Transmission, LLC for the construction of a natural gas pipeline between New J

Submitted by: Jim Clancy and Clint Twaddell, Branscomb, P.C. - Posted: 07/21/2014
07/01/2014
Central States, Southeast, and Southwest Areas Health and Welfare Fund v. First Agency, Inc.
6th Cir Finds ERISA insurer’s terms control in priority of coverage dispute
United States Court of Appeals for the Sixth Circuit

Thirteen children of Teamsters were injured while playing high school or collegiate athletics and sought coverage under both an employee benefit plan governed by ERISA and a policy providing athletic injury insurance for student athletes.  Th

Submitted by: Kurt Rozelsky and Emily Bridges, Smith Moore Leatherwood, LLP. - Posted: 07/03/2014
06/30/2014
Nat'l. Liab. & Fire Ins. Co. v. R & R Marine, Inc., et. al.
5th Cir finds FRCP wins in direct collision with TX rule to find standing to assert counterclaim in sinking ship claim
United States Court of Appeals for the Fifth Circuit.

When it Rains, It Pours: Where Insurer sues Insured and Third-Party to disclaim coverage under marine policy and Third-party files counterclaim against Insurer for its loss. The Fifth Circuit found that the Third-Party had standing under Rule

Submitted by: Kurt Rozelsky and Emily Bridges, Smith Moore Leatherwood, LLP. - Posted: 07/02/2014
06/30/2014
HARRIS v. QUINN
United States Supreme Court Limits Unions’ Power to Collect Dues
Supreme Court of the United States

Pamela Harris represented eight plaintiffs in a class action lawsuit against the governor of Illinois.  The plaintiffs are health workers, known in Illinois as personal assistants (PAs), who care for disabled persons in their own homes. The P

Submitted by: Maria A. Grover, Knapp, Petersen & Clarke - Posted: 07/07/2014
06/30/2014
BURWELL v. HOBBY LOBBY STORES, INC.
US Supreme Court extends to closely held corporations Constitutional right to religion so they don’t have to provide to employees abortion-causing contraceptives
United States Supreme Court

In 1993, congress enacted the Religious Freedom Restoration Act (RFRA,) and in 2010, congress enacted the Patient Protection and Affordable Care Act (ACA.) While the RFRA prohibits the government from substantially burdening a person’s exerc

Submitted by: Maria A. Grover, Knapp, Petersen & Clarke - Posted: 07/07/2014
06/30/2014
Equal Employment Opportunity Commission v. Audrain Health Care
No Title VII Discrimination Claim When Employee Never Applied for Job
United States Court of Appeals for the Fifth Circuit.

 Employee was a male nurse who expressed some interest in transferring to another position, however he never filed for the transfer.  The coordinator of these transfers indicated to Employee that she wished to fill the vacancy with a wom

Submitted by: Kurt Rozelsky and Emily Bridges, Smith Moore Leatherwood, LLP. - Posted: 07/02/2014
06/30/2014
Wallach v. Town of Dryden
Local ordinances may not regulate the actual operation of oil and gas activities, but they may ban it entirely.
New York Court of Appeals,

On June 30, 2014, high court in New York, the New York Court of Appeals, affirmed the rights of towns to ban all oil and gas production activity through zoning laws.  The court determined the state’s 1965 Oil, Gas and Solution Mining La

Submitted by: Jim Clancy Branscomb PC - Posted: 07/14/2014
06/12/2014
Chew v. American Greetings Corp.
Eighth Circuit applies Arkansas law to hold premises owner owed no duty to independent contractor electricians to warn of electrocution risk, despite lack of written contract, and despite violations of OSHA standards.
United States Court of Appeals for the Eighth Circuit

In 2009, American Greetings Corporation, a greeting card plant in Osceola, Arkansas, called Osceola Municipal Light & Power to repair an electrical line on American Greetings’s premises running from a utility pole to a transformer. The v

Submitted by: Jim Clancy and Clint Twaddell, Branscomb, P.C. - Posted: 07/22/2014
06/06/2014
American Postal Workers Union AFL CIO v. USPS.,
Second Circuit held arbitrator did not exceed his authority under the arbitration agreement by applying collateral estoppel based on a prior administrative decision
United State Court of Appeals for the Second Circuit

The USPS placed a worker on leave-without pay/injury-on-duty status after making the determination it no longer had work available for her.  Worker initiated a grievance pursuant to the Collective Bargaining Agreement (“CBA”), whi

Submitted by: James T. Clancy and Jessica R. Mann, Branscomb | PC - Posted: 07/21/2014
05/22/2014
Shupe v. Asplundh Tree Expert Co.
Sixth Circuit retains federal jurisdiction over employment suit by concluding amount-in-controversy included emotional distress damages that are uncapped by Kentucky statute.
United States Court of Appeals for the Sixth Circuit

A former employee sued Asplundh in state court for sexual harassment, gender discrimination, and wrongful termination. The case was removed to federal court based on diversity jurisdiction, and the plaintiff moved to remand, arguing that the amoun

Submitted by: Jim Clancy and Clint Twaddell, Branscomb, P.C. - Posted: 07/21/2014
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