Minding Your Business

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

eDiscovery Includes Electronic Vehicle Data and Possible Sanctions for Spoliation

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. Big M Transportation, Inc., addressed whether sanctions were warranted when electronic vehicle data was not preserved for a tractor-trailer that was involved in an accident. Continue Reading

Consider Whether the Promise of a Bird in the Hand is Better Than Two in the Bush

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 representing plaintiffs – should also give thoughtful attention to the timing of a release clause in any settlement agreement. Otherwise, a plaintiff may find that its “compromise” was nothing more than a unilateral agreement to reduce the value of its claim. 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 filing requirements” already set forth in the Rules. Accordingly, parties and their amici will still be required to submit forty copies of their briefs on paper in booklet form, and they now must additionally submit one paper copy on 8.5 x 11 inch paper (in case the Clerk’s office needs to scan the brief for any reason). The paper submission remains the “official filing” for purposes of determining timeliness, but e-filing is supposed to occur “contemporaneously” with the paper filing. Pro se parties will continue to file submissions exclusively on paper; those submissions will be scanned by the Clerk’s office and posted on the Court’s web site. Continue Reading

California Defendants Beware: Failing to Compel Arbitration Against Named Plaintiff Could Have Far-Reaching Consequences

California defendants in class actions should be wary of seeking a strategic advantage by litigating before seeking to compel arbitration. The Court of Appeal held recently in Sprunk v. Prisma LLC  that a defendant in class action litigation can waive its right to seek arbitration against absent, unnamed class members by deciding not to compel arbitration against the named plaintiff within a reasonable timeframe. 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 Spokeo, which operates a “people search engine” that compiles consumer data into online reports of individuals’ personal information.  Robins alleged that Spokeo had willfully violated the FCRA’s procedural requirements, including that consumer reporting agencies must “follow reasonable procedures to assure maximum possible accuracy of the information” in consumer reports, because Spokeo’s report on Robins allegedly listed the wrong age, marital status, wealth, education level, and profession, and included a photo of a different person.  According to Robins, the inaccuracies in the report about him harmed his employment prospects and caused him emotional distress. Continue Reading

The Eighth Circuit Reignites Claims of Continuing Conduct in Propane Tank Conspiracy

A split Eighth Circuit recently reversed a prior panel ruling and reignited antitrust claims against distributors of pre-filled propane tanks. The 5-4 majority cited the 1997 Supreme Court decision Klehr v. A.O. Smith Corp. to rule that for allegations of a price-fixing conspiracy under the Sherman Antitrust Act, each sale at an artificially inflated price restarts the statute of limitations. Continue Reading

LinkedOut: Court finds Ex-Employee Likely Violated Non-Solicitation Provision with LinkedIn Post

The use of social media sites, like LinkedIn, can be a helpful tool to reach a customer base. But a recent district court case out of Minnesota exemplifies the need to ensure that LinkedIn usage complies with the user’s employment agreement. Specifically, in late July 2017, a Minnesota court in Mobile Mini, Inc. v. Vevea granted a preliminary injunction preventing a LinkedIn user from soliciting customers through the website in violation of non-solicitation clause in the employment agreement of her prior employer. The opinion differentiates between posting mere status updates and posting solicitations, the latter of which can trigger violations of non-solicitation clauses.

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