Minding Your Business

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

Category Archives: Appellate

Subscribe to Appellate RSS Feed

N.Y. Court of Appeals: No Difference Between “Private” and “Public” Posts in Discovery

Those who thought designating social media posts as “private” would be sufficient to shield them from outsiders—including opposing parties in litigation—had better think again. On February 13, 2018, the New York Court of Appeals, New York’s highest court, unanimously held that the rules generally applicable to discovery in civil actions are just as applicable to … Continue Reading

Deceptive Discovery: Second Circuit Affirms Sanctions for Mishandling of Discoverable Data

Late last month, in Klipsch Grp., Inc. v. ePRO E-Commerce Ltd., the Second Circuit affirmed a $2.7 million sanctions award against defendant ePRO after repeated instances of discovery misconduct. Finding that the district court’s award properly reflected the additional costs plaintiff Klipsch Group Inc. was forced to bear due to ePRO’s actions, the Second Circuit … Continue Reading

Supreme Court Takes its Toll: Holds that Statute of Limitations for State Claims Stops While in Federal Court

On January 22, 2017, the U.S. Supreme Court issued its first 5-4 merits decision of the term in Artis v. District of Columbia. In this opinion, the Court held that bringing state claims in federal court stops the clock on the statute of limitations for those claims. Under 28 U.S.C. § 1367, federal courts may … Continue Reading

A Shot in the Arm: Second Circuit Holds Flu Shot Text Messages Didn’t Violate TCPA

Earlier this month, the Second Circuit ruled that Mount Sinai Health System did not violate the Telephone Consumer Protection Act (TCPA) when it sent automated flu shot text message reminders to patients. The three-judge panel in Latner v. Mount Sinai Health Systems, Inc. affirmed the dismissal of the putative class action, finding that the lead … Continue Reading

To Be or Not To Be: Can Attorney’s Fees Be Recovered on a Void Contract

Trying to collect attorney’s fees based on a void contract? Surprisingly, you can, according to a recent California Court of Appeal case. In California-American Water Co. v. Marina Coast Water Dist., the California Court of Appeal held that prevailing parties were entitled to recover attorney’s fees and costs based on a contract, even though the … Continue Reading

Privacy vs. Security: Will SCOTUS Leave the (Third) Party in 2018?

If the government obtains information about your past locations from your wireless provider, is that a search? If so, is it a search that requires the government to obtain a warrant? Courts have held that, because companies collect this kind of data in the ordinary course of business, consumers who voluntarily provide information to these … Continue Reading

Alibaba Securities Class Action Reinstated

The Second Circuit recently revived a putative securities class action against Alibaba Group Holding Ltd. and four of its top executives for alleged material misrepresentations in connection with the company’s $25 billion initial public offering in September 2014 – the largest in U.S. history. Chief Judge Colleen McMahon of the U.S. District Court for the … Continue Reading

Making VHS Relevant Again: The Uncertain Scope of Personal Information Protected by the Video Privacy Protection Act of 1988

The Ninth Circuit recently became the third federal appellate court to tackle what constitutes “personally identifiable information” protected by the Video Privacy Protection Act of 1988 (“VPPA”). Last year, the First Circuit and the Third Circuit propounded different standards for applying this statute, as they each grappled with the necessary leap from the age of VCRs … Continue Reading

Lawyers Beware: Battle of Legal Professional Privilege of Internal Investigation Continues in England and Wales

Last month, the Court of Appeal of England and Wales granted permission for Eurasian Natural Resources Corp. Ltd. (“ENRC”) to appeal the May 2017 decision by the High Court[1] relating to a dispute over the legal professional privilege with the Serious Fraud Office (“SFO”).[2] The Court of Appeal will likely hear the case next year.… Continue Reading

Location, Location, Location: Microsoft Debate Over Government’s Access to Overseas Data Heads to the Supreme Court

On October 16, 2017, the Supreme Court agreed to review the Second Circuit’s decision in United States v. Microsoft Corp., a case that highlights the current tension between law enforcement needs and privacy concerns in a rapidly changing digital landscape.… Continue Reading

Is the Frye Standard Making a Comeback in Florida?

On July 11, 2017, the Florida Supreme Court accepted jurisdiction of a case in which it is expected to finally decide, conclusively, whether Florida courts are to apply the Frye or Daubert standard to determine admissibility of expert or scientific evidence. The Frye standard, which was adopted in Florida in 1952, applies to expert testimony based upon new or novel scientific … Continue Reading

The Supreme Court Enters the Digital Age

Electronic filing is coming to the U.S. Supreme Court! Effective November 13, 2017, amendments to the Supreme Court’s rules take effect that require represented parties (and their amici) to submit petitions, briefs, and most other filings through the Court’s electronic filing system. The Rules explain that the new e-filing requirements are “[i]n addition to the … Continue Reading

Concrete Enough to Stand: Ninth Circuit Upholds FCRA Claims in Spokeo

On August 15, 2017, the Ninth Circuit delivered the latest episode in the Robins v. Spokeo saga, reaffirming on remand from the Supreme Court that plaintiff Robins had alleged an injury in fact sufficient for Article III standing to bring claims under the Fair Credit Reporting Act (FCRA). Robins had brought a putative class action against … Continue Reading

Supreme Court Clarifies Specific Jurisdiction and Ends Forum Shopping Spree

The Supreme Court has put an end to a jurisdictional contrivance used by the plaintiffs’ bar to shop for a friendly state forum, even if neither the plaintiff, nor the defendant, nor the actionable conduct took place in those states. In last month’s Bristol-Myers Squibb Company v. Superior Court decision, the Court ruled that out-of-state … Continue Reading

Supreme Court Clarifies When Service by Mail is Permitted under the Hague Convention

The Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (“Hague Service Convention” or “Convention”), was designed to simplify and standardize the service of legal documents across international borders. But for decades, U.S. courts divided over a seemingly simple question: does the Hague Service Convention prohibit service by mail?… Continue Reading

The Supreme Court Says “Game Over” to Crafty Gamers’ Attempt to Circumvent Class Certification Appeals

The Xbox 360 is designed for gaming. Appellate litigation, gamers learned, is not. On behalf of a putative class of purchasers of the Xbox 360, a group of gamers brought suit alleging a defect with the consoles. After the district court struck the class allegations, plaintiffs sought permission to appeal under Rule 23(f), which the … Continue Reading

Venezuela Mines for a Reversal in Federal Appeals Court

Venezuela is taking its fight over a $1.4 billion arbitral award to the District of Columbia’s federal court of appeals. The award capped a bitter dispute between Venezuela and Crystallex International Corporation, a Canadian mining company. The fight began in 2002, when Crystallex acquired the rights to develop the Las Cristinas gold deposits in Venezuela. … Continue Reading

Standing in the Shoes of a Suspended Corporation under California Law

A California Court of Appeal recently provided a reminder that under Code of Civil Procedure § 368, assignment of a right to recover money or other personal property (“a thing in action”) is subject to any defense existing at or before notice of the assignment, including defenses regarding the assignor’s corporate status. Thus, an assignee … Continue Reading

First Department Finds Work-Product Protection Not Waived by Storage of Documents on Company Laptop

On June 6, 2017, the First Department had an opportunity to apply—and reaffirm—last month’s decision in Peerenboom v. Marvel Entm’t, LLC, where the Court held that use of a company email system for personal purposes “does not, standing alone, constitute a waiver of attorney work product protections” even if the user lacked reasonable assurance of … Continue Reading

Arbitration Clauses Extending to Non-Signatory Affiliates: Are They Enforceable?

A recent decision of the New Jersey Appellate Division considered the enforceability of arbitration agreements by non-signatories. In Foti v. Toyota Motor Sales, U.S.A., Inc., the plaintiff filed a putative class action complaint against defendant alleging violations of New Jersey’s Truth-In-Consumer Contract, Warranty and Notice Act (“TCCWNA”), as well as the state’s Lemon Law (N.J.S.A. … Continue Reading

Recent Decisions Clarify (Un)Enforceability of Class Action Waivers in Employment Agreements

Companies looking to waive class action rights of employees may instead be waving goodbye to provisions in their employment contracts. Two recent decisions in California—one administrative and one in the 9th Circuit—recently found that class action waivers in employment contracts were unenforceable as a matter of law and public policy, resulting in the removal of … Continue Reading