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05/26/2016
LEWIS V. EPIC SYSTEMS CORPORATION
7th Cir. holds requiring employees to bring wage-and-hour claims via arbitration violates the NLRA and the FAA does not make it enforceable.
United States Court of Appeals for the Seventh Circuit

On April 2, 2014, Epic Systems sent an email to some of its employees, which contained an arbitration agreement mandating that wage-and-hour claims could be brought only through individual arbitration and that the employees waived “the right

Submitted by: Joshua C. Dotson [Flaherty Sensabaugh Bonasso, PLLC] - Posted: 05/27/2016
05/25/2016
STOKES-CRAVEN V. ROBINSON
In South Carolina, statute of limitations on legal malpractice runs after appeals process ends, not on date of adverse jury verdict.
THE SUPREME COURT OF SOUTH CAROLINA

Stokes-Craven, an automobile dealership, was sued by a customer who had bought a truck that he later discovered had sustained extensive damages prior to the sale.  Stokes-Craven was represented by the firm of Johnson, McKenzie & Robinson,

Submitted by: Jason L. Holliday [Flaherty Sensabaugh Bonasso, PLLC] - Posted: 05/27/2016
05/24/2016
KERR V. MARSHALL UNIVERSITY BOARD OF GOVERNORS, ET AL
Fourth Cir. affirms dismissal of University based on sovereign immunity.
United States Court of Appeals for the Fourth Circuit

After practicing law, Plaintiff Kerr enrolled in Marshall University’s Master of Arts in Teaching (“MAT”) program to obtain WV teaching license.  A student-teaching practicum, EDF 677, is required.  After differences ar

Submitted by: Joshua C. Dotson [Flaherty Sensabaugh Bonasso, PLLC] - Posted: 05/26/2016
05/23/2016
CROSE V. HUMANA INS. CO.
In Fifth Circuit, “temporal proximity” between a person’s action and a subsequent medical incident is “relevant proof of causation.”
United States Court of Appeals for the Fifth Circuit

In an insurance coverage case, the Fifth Circuit affirmed the district court’s grant of summary judgment to the insurer, Humana.  Plaintiff, Ms. Crose had filed suit claiming breach of contract, unfair insurance practices, and prompt pa

Submitted by: Jason L. Holliday [Flaherty Sensabaugh Bonasso, PLLC] - Posted: 05/25/2016
05/19/2016
PASSMORE V. BAYLOR HEALTH CARE SYSTEM
Fifth Cir. holds Texas procedural law mandating dismissal if plaintiff fails to serve expert report not applicable in federal courts.
United States Court of Appeals for the Fifth Circuit

Plaintiffs making a health care liability claim failed to serve defendants with an expert report within 120 days of defendants filing their answers, as required by section 74.351 of the Texas Civil Practice and Remedies Code.  The statute man

Submitted by: Jason L. Holliday [Flaherty Sensabaugh Bonasso, PLLC] - Posted: 05/23/2016
05/19/2016
JP MORGAN CHASE BANK, N.A. v. DATATREASURY CORP
Fifth Circuit splits, but affirms JP Morgan entitled to $69M refund from licensor for its giving second licensee more favorable terms; implies legal malpractice in drafting patent license agreements
United States Court of Appeals for the Fifth Circuit

In a case of first impression, the Fifth Circuit addressed the retroactive application of a most favored licensee (MFL) clause under a fully-paid up lump sum royalty in a patent license agreement. In an underlying patent infringement case, DataTre

Submitted by: Griffin C. Klema, DLD Lawyers - Posted: 05/20/2016
05/18/2016
INTERNATIONAL INFORMATION SYSTEMS SECURITY CERTIFICATION CONSORTIUM, INC. V. SECURITY UNIVERSITY, LLC, ET AL.
Nominative Fair Use Doctrine Accepted But Not As An Affirmative Defense In Trademark Case
United States Court of Appeals for the Second Circuit

In a first time and precedential ruling, the Second Circuit held that that the nominative fair use doctrine can be used in a trademark case, but it is not an affirmative defense, which excuses a defendant from consumer confusion in a claim of trad

Submitted by: Anthony J. Zarillo, Jr. [Riker, Danzig, Scherer, Hyland & Perretti, LLP.] - Posted: 05/19/2016
05/17/2016
UNITED STATES FIDELITY AND GUARANTY COMPANY V. FENDI ADELE S.R.L., ET AL.
No Coverage For $34.65 Million In Trademark Infringement Damages Involving The Sale Of Counterfeit Fendi Handbags
United States Court of Appeals for the Second Circuit

In this appeal, the circuit court affirmed a summary judgment decision of the Southern District of New York that the insurance carrier had no obligation to provide coverage to its insured, Ashley Reed Trading Inc., for judgments in a pair of lawsu

Submitted by: Anthony J. Zarillo, Jr. [Riker, Danzig, Scherer, Hyland & Perretti, LLP.] - Posted: 05/20/2016
05/16/2016
MONTGOMERY V. KRAFT FOODS GLOBAL, INC., ET AL.
Circuit Court Affirms Dismissal Of Starbucks Coffee Suit
United States Court of Appeals for the Sixth Circuit

This decision affirmed the dismissal of express and implied warranty claims and the denial of class certification to purchasers of coffee makers.  At its heart, the lawsuit alleged that Kraft Foods mislead purchasers that they could use their

Submitted by: Anthony J. Zarillo, Jr. [Riker, Danzig, Scherer, Hyland & Perretti, LLP.] - Posted: 05/18/2016
05/16/2016
CARLSON V. BIOREMED THERAPEUTIC SYSTEMS, INC., ET AL
Fifth Cir. holds lower court abused discretion by not conducting Daubert inquiry of chiropractor’s testimony in product liability case.
United States Court of Appeals for the Fifth Circuit

In 2010 Plaintiff began to lose nerve sensation in his feet due to diabetic condition “peripheral neuropathy”.  Plaintiff sought treatment from Dr. Lance Durett, “a chiropractor and alternative medicine specialist” who

Submitted by: Joshua C. Dotson [Flaherty Sensabaugh Bonasso, PLLC] - Posted: 05/24/2016
05/13/2016
NORTHWEST PIPE COMPANY V. RLI INSURANCE COMPANY
Umbrella Carrier Has Duty To Defend Superfund Site Claim Under Oregon Law
United States Court of Appeals for the Ninth Circuit

The Ninth Circuit rejected an umbrella carrier’s argument that it had no duty to defend an insured in environmental superfund litigation because the insured was already being afforded a defense by two of its primary carriers and the insured&

Submitted by: Anthony J. Zarillo, Jr. [Riker, Danzig, Scherer, Hyland & Perretti, LLP.] - Posted: 05/16/2016
05/13/2016
BAMFORD, INC. V. REGENT INSURANCE COMPANY, ET AL.
Circuit Court Affirms Bad Faith Failure To Settle Jury Verdict
United States Court of Appeals for the Eighth Circuit

A carrier with a $6 million policy limit failed to offer more than about $2 million in the face of the underlying plaintiff lawyer’s demand that the case could be settled “in the $3 million range”.  No further negotiations t

Submitted by: Anthony J. Zarillo, Jr. [Riker, Danzig, Scherer, Hyland & Perretti, LLP.] - Posted: 05/17/2016
05/12/2016
ENFISH, LLC V. MICROSOFT CORP
Fed. Cir. finds database software patent 101-eligible; opens door to “large field” of “data structure” claims
U.S. Court of Appeals for Federal Circuit

Patentee brought suit against Microsoft and others claiming infringement of its “self-referential database” software patents. Trial court granted summary judgment to Microsoft on grounds that (1) the patents were 101 ineligible subject

Submitted by: Griffin C. Klema, DLD Lawyers - Posted: 05/16/2016
05/10/2016
CARTER V. HEALTHPORT TECHNOLOGIES LLC
Personal injury plaintiffs’ class action against health records company withstands motion to dismiss
United States Court of Appeals for the Second Circuit

Class action consisting of patient-plaintiffs brought complaint against medical records company HealthPort Technologies and affiliated hospitals. Plaintiffs asserted (1) New York state’s public health law capped the amount that could be char

Submitted by: Griffin C. Klema, DLD Lawyers - Posted: 05/12/2016
05/10/2016
TROTTER V. HARLEYSVILLE INS. CO
Illinois-specific auto insurance endorsements held not ambiguous and limited carrier’s liability under policy to per-accident rather than per-person.
United States Court of Appeals for the Seventh Circuit

Trotter and his two passengers were injured in automobile accident caused by another driver. They each obtained a settlement from that driver’s carrier which exhausted the $500K policy limits. Believing that their individual settlements were

Submitted by: Griffin C. Klema, DLD Lawyers - Posted: 05/12/2016
05/10/2016
NOVOSELSKY V. BROWN
7th Cir. Says Rev. Jackson’s Former Defendant-Turned Ally Immune from Liability.
United States Court of Appeals for the Seventh Circuit

Lawyer David Novoselsky represented clients in multiple lawsuits alleging various corruption and improprieties by Cook County Illinois Clerk of Court Dorothy Brown. In response, Brown (1) filed an ethics complaint against Novoselsky, (2) authored

Submitted by: Griffin C. Klema, DLD Lawyers - Posted: 05/12/2016
05/04/2016
Zoroastrian Center and Darb-E-Mehr of Metropolitan Washington, D.C. v. Rustam Guiv Foundation of New York
The United States Court of Appeals for the Fourth Circuit narrows the scope of the attorneys’ fees available to prevailing parties in contractual disputes to fees associated with claims upon which the requesting party actually prevails.
United States Court of Appeals for the Fourth Circuit

In Zoroastrian Center v. Rustam Guiv, a non-profit entity brought suit against a charitable trust for breach of a lease agreement. At issue in the case was whether a hand-written “memorandum of understanding” with open-ended deadlines

Submitted by: Lon Johnson and Gena Sluga of Christian, Dichter & Sluga, P.C. - Posted: 05/05/2016
05/04/2016
In re: Joseph Nicholas Mole
The United States Court of Appeals for the Fifth Circuit affirms an attorney’s twelve-month suspension from practice in a case that proves the adage that “Two Wrongs Don’t Make a Right.”
United States Court of Appeals for the Fifth Circuit

Attorney Mole represented Plaintiff Lifemark Hospitals in a lawsuit against Defendant Liljeberg Enterprises.  Six weeks before trial, Defendant retained attorneys Levenson and Amato, who were widely known to be friends of the judge assigned t

Submitted by: Gena Sluga of Christian, Dichter & Sluga, P.C. - Posted: 05/06/2016
05/04/2016
St. Bernard Parish Government and other Owners of Real Property in St. Bernard Parish or the Lower Ninth Ward of the City of New Orleans v. The United States
U.S. Claims Court certifies Hurricane Katrina class action against Government and finds certain plaintiffs entitled to recovery under Takings Clause.
UNITED STATES COURT OF FEDERAL CLAIMS

U.S. Court of Federal Claims granted class-action status for certain property owners in St. Bernard Parish and Orleans Parish, finding that the requirements under RCFC 23(a) have been met. The Court had previously issued an Order determining that

Submitted by: Céleste D. Elliott, Lugenbuhl, Wheaton, Peck, Rankin & Hubbard - Posted: 05/06/2016
05/03/2016
In the Matter of Viking Pump, Inc. and Warren Pumps, LLC, Insurance Appeals.
NY Court of Appeals endorses all sums and vertical exhaustion.
New York Court of Appeals

The NY Court of Appeals addressed two certified questions from the Delaware Supreme Court.  These questions were (1) whether "all sums" or "pro rata" allocation applies where the excess insurance policies at issue either f

Submitted by: Alan Rutkin (Rivkin Radler LLP) and Kay Gaffney, Barnes Alford - Posted: 05/03/2016
05/02/2016
Corbin v. Time Warner Entertainment-Advance/Newhouse Partnership
9th Circuit finds that employer’s practice of rounding employee time stamps to nearest ¼ hour complies with federal rounding regulation
United States Court of Appeals for the Ninth Circuit

In Corbin v. Time Warner Entertainment-Advance/Newhouse Partnership, an employeesued his employer in a putative class action alleging that the employer’s practice of rounding all employee time stamps to the nearest quarter hour wrongfully de

Submitted by: Patrick Cloud, Heyl, Royster Voelker & Allen. - Posted: 05/03/2016
04/29/2016
Marc Veasely, et al. v. Greg Abbott, Governer of Texas, et al.
Application To Vacate Stay Pending Appeal Regarding Texas Voting Act Denied
The Supreme Court of the United States.

Certain groups, along with United States, brought action alleging that Texas's Voter Identification (ID) law violated Voting Rights Act and Fourteenth and Fifteenth Amendments. The District Court entered a final order striking the law down. Te

Submitted by: Jim Hoover and Chris Thompson, Burr & Forman LLP - Posted: 04/29/2016
04/29/2016
Hospital of Barstow, Inc. v. NLRB
NLRB Must Reach Merits Of Hospital's Challenge To A Certification Issued At A Time When The Board Was Without A Statutory Quorum
United States Court of Appeals for the DC Circuit.

Three of the five positions on the National Labor Relations Board expired and remained unfilled from August 2010 and January 3, 2012. The President's attempt to fill those positions through recess appointments was halted by the Supreme Court i

Submitted by: Jim Hoover and Chris Thompson, Burr & Forman LLP - Posted: 04/29/2016
04/29/2016
Via Christi Hospitals Wichita, Inc. v. Sylvia M. Burwell, as Secretary of Health and Human Services
Nonprofit Hospital Consolidation Not A Bona Fide Sale For Purposes Of Medicare Reimbursement
United States Court of Appeals for the DC Circuit.

The Secretary of the Department of Health and Human Services reimburses Medicare providers for their reasonable costs actually incurred, including an appropriate share of depreciation on buildings or equipment used to supply Medicare services. Suc

Submitted by: Jim Hoover and Chris Thompson, Burr & Forman LLP - Posted: 04/29/2016
04/28/2016
Eric C. Deters v. Kentucky Bar Association et al.
Repeatedly Suspended Attorney Did Not Make A Case That His Constitutional Rights Were Infringed By The Suspension Process
United States Court of Appeals for the Sixth Circuit

This appeal involved the suspension by the Kentucky Bar Association of an attorney, Deters, for multiple violations of the Kentucky Rules of Professional Conduct, including several instances of dishonesty. The attorney challenged the suspension on

Submitted by: Jim Hoover and Chris Thompson, Burr & Forman LLP - Posted: 04/29/2016
04/28/2016
William Alvin Hueble, Jr. v. South Carolina Department of Natural Resources and Eric Randall Vaughn
An Accepted Offer Of Judgment Was Deemed A Resolution In Favor Of Plaintiff For The Purposes Of Costs And Expenses
Supreme Court of South Carolina

The question asked in this case was whether a plaintiff who obtained a judgment in his favor of $5,100 under Rule 68 of the South Carolina Rules of Civil Procedure was a prevailing party within the meaning of the Civil Rights Act, 42 U.S.C. §

Submitted by: Jim Hoover and Chris Thompson, Burr & Forman LLP - Posted: 04/29/2016
04/28/2016
Victor W. Patterson, Toby G. Breedlove, and Jeanine B. Rulis v. CitiMortgage, Inc. and Mortgage Electronic Registration Systems, Inc.
An Obvious, Unilateral Mistake Prevents Contract Formation And Saves Citimortage From Facing Consequences
United States Court of Appeals for the Eleventh Circuit

This involved an appeal from summary judgment granted to CitiMortgage, Inc. and Mortgage Electronic Registration Systems, Inc. (“Mortgage Systems”). Patterson and Breedlove sought to enforce a contract between Patterson and CitiMortgag

Submitted by: Jim Hoover and Chris Thompson, Burr & Forman LLP - Posted: 04/29/2016
04/27/2016
Ramona Two Shields, Mary Louis Defender Wilson, individually, and on behalf of all others similarly situated v. United States
Native American Plaintiffs Barred From Making Claims Due To Failure To Opt Out Of An Earlier Settlement
United States Court of Appeals for the Federal Circuit

This appeal from the Court of Federal Claims involved the alleged mismanagement of the millions of acres of Indian allotment land that the U.S. government, as trustee, manages through the Bureau of Indian Affairs (“BIA”). In particular

Submitted by: Jim Hoover and Chris Thompson, Burr & Forman LLP - Posted: 04/28/2016
04/26/2016
The Bank of New York Mellon Trust Company, N.A. v. Morgan Stanley Mortgage Capital, Inc.
Notice To Cure Not Required Upon Breach Of Representation Of Mortgage Loan Purchase Agreement
United States Court of Appeals for the Second Circuit

This case involved a breach?of?contract action between plaintiff-appellant Bank of New York Mellon Trust Company, N.A. (“BNY”) and defendant-appellee Morgan Stanley Mortgage Capital, Inc. (“Morgan Stanley”). Morgan Stanley

Submitted by: m Hoover and Chris Thompson, Burr & Forman LLP - Posted: 04/28/2016
04/26/2016
Marisela Herrerra, et al. v. JFK Medical Center Limited Partnership, d/b/a/ JFK Medical Center, et al.
Eleventh Circuit Reverses District Court's Striking Of Class Allegations In Personal Injury Protection ("Pip") Action Based Solely On The Face Of The Complaint
United States Court of Appeals for the Eleventh Circuit

Florida law requires that motor vehicle owners purchase personal injury protection ("PIP") insurance coverage of $10,000. PIP policies cover 80% of all reasonable and necessary medical expenses related to a motor vehicle accident, includ

Submitted by: Jim Hoover and Ben Coulter, Burr & Forman LLP - Posted: 04/27/2016
04/26/2016
Heffernan v. City of Patterson, New Jersey, et al.
Employees May Challenge Unlawful Actions Under The First Amendment And § 1983 Even If The Employer's Bad Acts Were Based On A Factual Mistake About The Employee's Behavior
The Supreme Court of the United States.

The Plaintiff-Petitioner was a police officer working in Patterson, New Jersey. He worked as a detective in the office of Patterson's chief of police, James Wittig. Wittig and the Plaintiff's supervisor had been appointed by Paterson's

Submitted by: Jim Hoover and Ben Coulter, Burr & Forman LLP - Posted: 04/27/2016
04/12/2016
HALO V. YALE HEALTH PLAN DIRECTOR OF BENEFITS RECORDS YALE UNIVERSITY
An ERISA Plan’s failure to establish or follow reasonable claims procedures in accordance with DOL regulations entitles the claimant a de novo review unless the Plan establishes that it has procedures that fully comply with the regulations and can show any failure on the Plan’s part was inadvertent and harmless.
United States Court of Appeals for the Second Circuit

A Yale University student, appearing pro per, brought a claim for benefits seeking coverage for an eye surgery performed by an out-of-network provider.  This plan provided that claims would be subject to the arbitrary and capricious standard

Submitted by: William M. Demlong, Phoenix, Az - Posted: 05/02/2016
03/24/2016
Economical Mutual Insurance Co. v. Caughy
Active use of a vehicle is not a strict requirement for meeting the definition of "accident
Ontario Superior Court of Justice (Divisional Court)

This case arises out of an accident which occurred at a trailer park. The Respondent, Caughy, was playing a game of tag with his children when he tripped and fell over a parked motorcycle, wherein he fell head first into a trailer, sustaining sign

Submitted by: David A. Bertschi,, Bertschi Orth Solicitors & Barristers LLP, - Posted: 05/03/2016

 

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