Minding Your Business

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

CCP 2031.280(a): New Document Production Obligations in California Civil Litigation

Effective as of January 1, 2020, all civil litigants in California will have additional discovery burdens. The California Code of Civil Procedure now requires “[a]ny documents or category of documents produced in response to a demand for inspection, copying, testing, or sampling shall be identified with the specific request number to which the documents respond.”  Cal. Civ. Pro. § 2031.280(a). This is a major departure from the prior rule. Responsive documents can no longer be produced as they were “kept in the usual course of business.”  This new requirement applies to all pending cases in California, regardless of whether a case commenced prior to the amendment’s effective date of January 1, 2020.  Continue Reading

Fifth Circuit Holds Failure to Mitigate is No Bar to Statutory Damages Under Copyright Act

Recently, copyright owners suing in the jurisdiction of the United States Court of Appeals for the Fifth Circuit were given a new reason to seek statutory damages instead of actual damages under the Copyright Act. Failure to mitigate damages is not an absolute defense to a claim for statutory damages, the Court ruled on Wednesday, January 15, 2020. Continue Reading

Is Increased Transparency into Litigation Financing on the Horizon?

The market for litigation finance shows no signs of slowing down, but pressure from rulemaking bodies and the judiciary may reshape whether and to what extent funding arrangements must be publicly disclosed. The use of litigation finance to fund claims that may not otherwise have been pursued or as a risk management strategy has continued to expand in recent years. For much of its history, parties were not required to disclose whether they were receiving litigation financing or the source of such funding, however the recent trend is toward increased transparency into funding arrangements. Continue Reading

Data Breaches and Damages: Consumer Action Under the CCPA

With less than one month to go before the California Consumer Privacy Act of 2018’s (“CCPA”) effective date of January 1, 2020, businesses should be aware of the potential litigation that awaits them.

The CCPA is a California privacy law that gives California consumers the rights to know about and control the personal information that businesses collect about them.  In turn, the CCPA requires businesses to give consumers the ability to effectuate these rights.  For a more in-depth review of the CCPA, please view our previous posts on our Privacy Law BlogContinue Reading

“Ain’t No River Wide Enough”: Second Circuit Says No Per Se Bar to Extraterritorial Application of Section 1782

This month, the Second Circuit weighed in on open issues relating to discovery under 28 U.S.C. § 1782. Section 1782 allows federal courts to order entities that “reside[] or [are] found” in their district to produce evidence for use in a proceeding before “a foreign or international tribunal” upon request by “any interested person.” Continue Reading

Attacking Class Certification on a Motion to Dismiss? A Recent Decision Says There is a Way

Plaintiffs often try to define the broadest possible class at the outset of a case on the belief that the scope of the class can be refined on class certification after discovery has been completed. For this strategy to work, however, plaintiffs must get past the pleading stage. Historically, this has not been too difficult for class plaintiff. But a recent decision in In re Railway Industry Employee No-Poach Antitrust Litigation suggests that the tide may be turning. There, the court held that plaintiffs’ conclusory class allegations – standard fare in many antitrust class action complaints – failed to set facts that, if true, demonstrated that injury could be proven on a class-wide basis, and striking the class allegations from the Complaint. The decision thus shows a new boldness in striking class allegations before discovery or a motion for certification. If it stands, this holds great promise for defendants seeking to attack the class action procedure at the pleading stage.

Read the full client alert here.

For The First Circuit, Transaction Costs in Structured Settlements are Not Fraud

Liability insurers charge premiums in exchange for an agreement to cover certain claims against their policyholders. When settling a tort claim against a policyholder, the insurance company can pay a lump-sum of cash or, in some cases, will enter into a “structured settlement” with the claimant. Here, the insurance company purchases an annuity (or a stream of payments over a set period of time) from, for example, a life insurance company, under which the beneficiary/claimant will receive these payments to settle the claim. However, the process of buying an annuity generates certain transaction costs in the form of a broker’s commission payable by the liability insurer to the life insurance agent. If the liability insurer were to purchase a stream of payments for the amount owed to the claimant but the claimant received less than the insurer paid, what should we call the missing funds: fraud or the price of doing business? Continue Reading

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