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
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 … 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
On Friday, March 22, a split panel of the Ninth Circuit Court of Appeals found that a company with no direct contractual relationship with independent contractors could be found vicariously liable for the actions of those contractors in a class action suit. The majority held that ratification may create an agency relationship when none existed … Continue Reading
Litigation funders are well aware that half of the potential market is largely untapped. Clients would prefer to focus on their business rather than litigation, and offload some or all of their defense costs to a third-party. Law firms want the fee flexibility that defense-side funding could provide. So why is defense funding still the … Continue Reading
The United States Court of Appeals for the Ninth Circuit recently issued a decision holding that the Americans with Disabilities Act (“ADA”) applies to websites that connect customers to goods and services offered at a physical location. In Robles v. Domino’s Pizza LLC, the plaintiff, who is blind, brought suit against Domino’s for failing to … Continue Reading
Consumer advocates, defense attorneys, tort reformists, and trial judges are all eagerly awaiting a decision by the Ninth Circuit which all hope will clarify the process for certifying a nationwide settlement class in the Ninth Circuit. Specifically, an en banc Ninth Circuit panel will decide whether “variations in state law can defeat” predominance in class … Continue Reading
On Monday, March 4, the Supreme Court unanimously decided that a copyright claimant may only bring a suit for copyright infringement after the copyright has been registered by the Copyright Office, not while the registration is pending.… Continue Reading
Characterizing the decision to bring a books and records inspection action after filing a plenary or substantive action as “[i]nherently contradictory,” the Delaware Court of Chancery recently dismissed a Section 220 action brought by a group of investors. The decision signals that the Court of Chancery remains alert to the use of books and records … Continue Reading
In its recent decision in Hall vs. Hall, the U.S. Supreme Court ruled unanimously that after a final decision in one of several consolidated cases, the losing party has the immediate right to appeal that decision, even when other consolidated cases are still pending. Courts may consolidate cases for efficiency. Writing for the Court, Justice … Continue Reading
On December 1, 2017, two amendments to the Federal Rules of Evidence came into effect that impact how courts authenticate digital evidence. The addition of two categories to Rule 902’s list of self-authenticating documents seeks to streamline the introduction of digital evidence by avoiding costly delays that often serve little purpose. In doing so, it … Continue Reading
When it overturned a federal court’s order suppressing a litigant’s right to publicly gripe about a pending suit late last month, the Ninth Circuit took the opportunity to remind those of us in the legal profession that we are held to a different, higher standard when it comes to public comment on litigation. In an … Continue Reading
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
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
Last week, a federal judge in California denied the plaintiff’s motions to disqualify the defendant’s counsel, finding that the firm’s former representation of the plaintiff was not sufficiently recent, substantial, or substantively related to the firm’s current representation of the defendant to warrant disqualification. The plaintiff, IPS Group, Inc., brought two related lawsuits against Duncan … Continue Reading
Discovery of relevant material extends far beyond documents created on personal computers. Discoverable data exists in many forms, including electronic data found in vehicles such as tractors used for tractor-trailers. This type of data is also subject to spoliation sanctions if not properly preserved. A recent case in the Northern District of Alabama, Barry v. … Continue Reading
When drafting settlement agreements, most lawyers give due attention to the scope of any release clause. And for good reason: for defendants, the extent to which the release protects against future litigation is critical, and for plaintiffs, the extent to which it preserves future claims may be equally critical. But lawyers – and particularly those … Continue Reading
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
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
Recently, the U.S. Supreme Court clarified in Goodyear Tire & Rubber Co. v. Haeger that even a district court’s exercise of broad discretion to impose a civil sanction for a litigant’s bad faith conduct has to be limited by a causal link. The parties in Goodyear had reached a settlement of the underlying product liability … Continue Reading
It is not uncommon for parties to enter into agreements containing jury waiver provisions. However, enforcing such provisions in California courts may be a losing battle. California has a strong public policy in favor of the right to a trial by jury, and California courts will not enforce a jury waiver except under limited circumstances. … 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
Currently, the New York Civil Practice Law and Rules permit temporary restraining orders (“TROs”) to be issued without notice to the opposing party – though this practice is discouraged by most judges. CPLR § 6313(a). Notice is not required if the moving party can demonstrate that there will be significant prejudice by reason of giving … Continue Reading
