The global pandemic has brought about countless changes, including, for many households, increased reliance on online retail and delivery services, such as Amazon. When consumers sign up for these services or place their orders, they are likely to see a notice regarding terms and conditions, which may include an arbitration agreement pursuant to which the consumer … Continue Reading
Common practice dictates that plaintiffs often prefer to be in state court – and will sometimes go to great lengths to avoid federal court jurisdiction. That was the case in Deroy v. Carnival Corporation, a recent Eleventh Circuit decision, wherein the court rejected a plaintiff’s “creative effort” to escape a forum-selection clause requiring her to … Continue Reading
On August 18, the D.C. Circuit directed the Copyright Royalty Board (“CRB”) to reconsider what royalties are owed to artists by Music Choice for its streaming services, vacating the final determination of the Copyright Royalty Board. In the Court’s view, the CRB wrongfully excluded internet transmissions from the grandfathered royalty rate paid by some music … Continue Reading
On July 24, 2020, a panel of the Court of Appeals for the Federal Circuit issued splintered precedential opinions surrounding the interplay of state sovereign immunity under the Eleventh Amendment and required joinder of parties under Rule 19 of the Federal Rules of Civil Procedure in a patent-in-suit infringement case in Gensetix, Inc. v. Baylor … Continue Reading
In July 2020, the Pennsylvania Supreme Court agreed to tackle the thorny question of whether Amazon can be held liable for defective products sold by third parties on its website. The Third Circuit offered up the case in June after hearing arguments in February and concluding that it was “unable to predict based on existing … Continue Reading
As we previously reported, the Magistrate Judge in In re: Capital One Customer Data Security Breach Litigation, found that a forensic report that Capital One had claimed was protected by the privilege and work product doctrines needed to be produced because Capital One had not met its burden under the dual-purpose doctrine to show that … Continue Reading
A foreign business recently failed to prevail in a trademark lawsuit because it could not demonstrate it had immediate plans to commence use of the trademark in the United States.… Continue Reading
In early April 2020, the First Department affirmed the dismissal of a complaint by a Russian lawyer who had received an L.L.M. from Fordham University alleging “civil conspiracy” against Fordham and several American attorneys, reasoning that New York does not recognize a stand-alone claim of civil conspiracy.… Continue Reading
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, … Continue Reading
In a decision with major implications for fans of wine, liquor, or free trade, the Supreme Court has affirmed a ruling that struck down a Tennessee law, which imposed certain residency requirements to operate retail liquor stores, as impermissibly violating the Commerce Clause. Tennessee Wine and Spirits Retailers Assn. v. Thomas. Justice Alito, writing for the majority … Continue Reading
Effective December 1 of this year, Rule 23 of the Federal Rules of Civil Procedure – governing class action lawsuits – was amended. Among other things, the amendments modernize the rule with respect to electronic communications, set forth a more unified approach to approving settlements, and discourage bad faith objectors to class action settlements.… Continue Reading
A divided New York Court of Appeals recently held that Civil Rights Law § 50-a bars disclosure of police officer personnel records except under very limited circumstances, eliminating access to such records by the press or advocacy groups under the Freedom of Information Law (“FOIL”) even if the police department itself is willing to release them … Continue Reading
California overhauled its Rules of Professional Conduct effective November 1, 2018. This post highlights some impactful revisions for commercial litigators. However, all California lawyers should familiarize themselves with the sixty-nine new and revised rules.… Continue Reading
It was a tragedy. The 1977 plane crash that killed Ronnie Van Zant and Steven Gaines almost ended the band Lynyrd Skynyrd forever. In the wake of the crash, the survivors swore an oath never again to perform as “Lynyrd Skynyrd.” That oath made its way to court where it would be memorialized in a … Continue Reading
Last week, the Florida Supreme Court adopted section 90.5021, Fla. Stat. – Florida’s fiduciary lawyer-client privilege – to the extent it is procedural and held that the decision is retroactive to the Florida legislature’s enactment of the statute in 2011. The statute provides for application of the lawyer-client privilege when that client is a fiduciary, … Continue Reading
On August 1, 2017, plaintiff Raymond Alvandi filed a putative class action in California federal court against Annie’s, Inc., seeking damages and injunctive and declaratory relief. Alvandi alleges that Annie’s misrepresented the strawberry content and nutritional and health qualities of its “Summer Strawberry” Organic Bunny Fruit Snacks. Alvandi seeks to represent a nationwide class of all … Continue Reading
When a contract awards attorneys’ fees to one party in a contract action, California Civil Code § 1717 intervenes by a) directing the attorney’s fees to the prevailing party, regardless of the party awarded fees in the contract, and b) requiring the court to fix the attorney’s fees as an element of the costs of … Continue Reading
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
The recent case of Jarvis v. BMW of North America, LLC is an important reminder to attorneys to avoid inadvertently reaching a settlement agreement that is unacceptable to the client, or equally problematic, one that is missing critical (but not legally “essential”) terms and conditions. In Jarvis, the District Court for the Middle District of Florida … Continue Reading
In 2011, Florida’s legislature enacted section 90.5021, Fla. Stat., which provides for application of the lawyer-client privilege – even when the client is a fiduciary. Specifically, the statute protects communications between a lawyer, on the one hand, and a client who is a trustee, personal representative or executor, or guardian, on the other hand. The … Continue Reading
We previously covered a proposed amendment to the New York Commercial Division Rule 20 that aimed to require moving parties seeking a temporary restraining order (“TRO”) to, absent significant prejudice, provide opposing parties with copies of all supporting papers as well as notice before any TRO could be issued. … Continue Reading
On February 28, 2017, Southern District of New York Magistrate Judge Andrew J. Peck issued a warning shot, stylized as a “wake-up call,” to the SDNY Bar: comply with the now 15-month-old amendments to the Federal Rules of Civil Procedure when objecting to requests for the production of documents and electronically stored information (ESI), or … Continue Reading
On March 27, 2017, the Commercial Division of the New York Supreme Courts updated its rule on trial length, giving judges the express authorization to impose time limits, at their discretion, on different phases of trial. The goal of this amendment, first proposed by the Commercial Division Advisory Council in October 2016, is simple: to … Continue Reading
On March 22, the U.S. District Court for the Southern District of California dismissed a putative class action against Saks Inc. alleging that Saks advertised “phantom markdowns” of Saks-branded products. The Plaintiff alleged that he purchased a pair of men’s shoes “valued” by Saks at $145 but sold at a discounted price of $79.99. The … Continue Reading
