Minding Your Business

Proskauer’s perspective on developments and trends in commercial litigation.

Courts Split on Standing Issues in FCRA Suits After Spokeo

On October 5, 2016, two district courts came to opposite conclusions on whether putative class action plaintiffs had standing to bring claims based on prospective employers’ failure to comply with Fair Credit Reporting Act (FCRA) disclosure requirements.

Standing under Article III of the Constitution requires (1) an injury in fact (2) fairly traceable to the challenged conduct of the defendant and (3) likely to be redressed by a favorable judicial decision. Earlier this year, the Supreme Court in Spokeo, Inc. v. Robins clarified that to confer standing, an injury in fact must be both particularized – affecting the plaintiff in a “personal and individual” way – and concrete – “real, not abstract.” Continue Reading

New York Rejects Antitrust Defense To Breach Of Distribution Contract

Your client is sued for failure to pay on a contract and says it shouldn’t have to pay because the prices were fixed by a cartel or that it was strong-armed into paying for a “bundle” of services or distribution channels even though it only wanted a subset of the bundle. Is that a defense? After all, aren’t contracts for unlawful ends unenforceable?

The answer, most often, is “no.” A recent decision by a New York Commercial Division judge provides a useful reminder of the fairly limited allowance of antitrust defenses to contract claims. Continue Reading

It’s Not an Illusion! DISH Not Required to Give Credit When Channels Go Dark

Expanded Basic. Choice. Choice Plus. Cable and satellite TV customers pay monthly fees for bundled channel packages of different sizes. The packages are becoming “skinnier,” allowing you to customize your service from a set of modules (i.e., the Family package, the Sports package, various language packages, etc.). But each module is still a pre-set bundle of channels. Continue Reading

The Sixth Circuit’s Continued Scrutiny of Sealing Decisions

We wrote here previously regarding the Sixth Circuit’s decision in Shane Group v. Blue Cross Blue Shield of Michigan vacating a class action settlement because the district court improperly refused to unseal the parties’ substantive filings. In revisiting the district court’s sealing orders, the Court of Appeals found that the parties’ cursory justifications for their sealing requests were “patently inadequate.” And based on this failure to elucidate reasons for sealing, the Sixth Circuit vacated every one of the district court’s sealing orders. Since its decision in June, the Sixth Circuit had occasion to interpret and apply Shane Group, and in doing so, offered key learnings for litigants seeking to toe the line for compliance with the Sixth Circuit’s newly-pronounced standard. Continue Reading

Think Your Arbitration Award Is Final? Maybe “Look Through” It Again

The question of federal court jurisdiction over arbitration proceedings has historically led to different conclusions. A few years ago, the  United States Supreme Court clarified in Vaden v. Discover Bank that Section 4 of the Federal Arbitration Act (“FAA”) authorizes a federal court to “look through” to the underlying controversy to determine if there is federal court jurisdiction to adjudicate a motion compelling arbitration. Until recently, however, the “look through” approach had not been adopted by the Second Circuit for determining whether a federal court has jurisdiction to hear a motion to vacate an arbitration award. Continue Reading

Five Ways to Prepare for Business Interruption Insurance Claims in a Natural Disaster

hurricane-1The extraordinary images and reports of the devastation from Hurricane Matthew have filled the news outlets. While the focus remains on the human toll and concern for the well-being of friends, colleagues and business partners who may be personally affected by this disaster, its impact will extend far beyond those whose lives and businesses were immediately disrupted. In the coming days, we will begin to see assessments of the disasters impact on properties and businesses from the Caribbean to the East Coast.

Click here to read the full client alert.

California Adopts Amendments to Prop 65 “Safe Harbor” Warning Requirements

In September, California’s Office of Environmental Health Hazard Assessment (“OEHHA”) announced that it had adopted amendments to the regulations governing California’s Proposition 65, which requires that businesses provide a “clear and reasonable warning” before exposing an individual to any chemicals that California has determined cause cancer or reproductive harm. Although a business can create its own warning and hope that a court will conclude it is “clear and reasonable,” OEHHA has promulgated a series of regulations establishing a so-called “safe harbor” — warnings that are considered per se clear and reasonable. So, although OEHHA dubs the safe harbor warnings as “non-mandatory guidance,” for any company not willing to bear the risk of creating its own warning, the “safe harbor” regulations are de facto requirements.

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