Surprise Bills for Many Under Health Law Out-of-network charges often aren’t flagged before treatment, consumers say; states tightening laws

Stephanie Armour of the Wall Street Journal reports June 11, 2015
"Many consumers with health coverage through the Affordable Care Act are facing unexpected medical bills that in some cases greatly exceed the law’s caps on out-of-pocket expenses.
The law’s limits don’t apply to charges from out-of-network providers, and many insurance plans sold on ACA exchanges have limited networks—amplifying the risk of surprise bills...
When Arturo Paramo, a 50-year-old construction worker, experienced chest pains last year, he was admitted to St. Francis Hospital in Bartlett, Tenn., after a doctor sent him there following an electrocardiogram. His wife, Bainey, said they weren’t told the hospital in suburban Memphis didn’t accept her family plan. They got a $22,945 bill—above the ACA’s $12,700 cap for a family plan in 2014—in the mail....The couple appealed the charge, which the hospital reduced to $600—but only after the bill had been sent to a collections agency, which Ms. Paramo worries will hurt the family’s credit rating....
More states are passing laws that aim to halt unexpected out-of-network bills. Under California legislation approved this month, consumers who go to an in-network facility but are treated by an out-of-network provider there only have to pay what they would have been charged if the provider participated in their plan.
A New York law providing a number of out-of-network safeguards went into effect in April, and legislation has been introduced in Texas....More than half of Americans say making sure health plans have sufficient networks to provide a wide choice of doctors and hospitals should be a top health-care priority for the president and Congress, according to an April poll by the foundation....Anthem Blue Cross of California, Cigna Corp. and Blue Shield of California are facing lawsuits filed in 2014 by beneficiaries who say they were misled about the size of the networks when obtaining coverage on the state’s ACA exchange. The insurers either declined to comment or didn’t respond to an email seeking comment...." More.


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arbitration, wrongful death, trademark infringement, and corned beef, red cabbage, and purple potatoes with fresh mustard seed and thyme

Leslie, et al. v. Hancock County Board of Education, et al.

Docket: 12-13628

Opinion Date: July 12, 2013

Judge: Pryor

Areas of Law: Civil Rights, Constitutional Law, Labor & Employment Law

Plaintiffs, the superintendent of education and her assistant superintendent, filed suit claiming that the board and its members in both their official and individual capacities terminated the superintendent and demoted the assistant superintendent in retaliation for public comments plaintiffs made about local tax policy. The court concluded that it had jurisdiction over the appeal of the denial of qualified immunity, but lacked jurisdiction over the appeal of the board and its officials. Accordingly, the court dismissed the appeal of the board and its officials for lack of jurisdiction and reversed the denial of qualified immunity for the individual members of the board.

http://j.st/rXN

Southern Communications Serv. v. Thomas

Docket: 11-15587

Opinion Date: July 12, 2013

Judge: Tjoflat

Areas of Law: Arbitration & Mediation, Class Action, Consumer Law

This case involved arbitration proceedings stemming from plaintiff's class action suit alleging, among other things, that SouthernLINC's termination fees were unlawful penalties under Georgia law. SouthernLINC, a wireless provider, appealed the district court's denial of its motion to vacate two arbitration awards. Under the standard set forth by the Supreme Court in Oxford Health Plans LLC v. Sutter, the court concluded that the arbitrator did not exceed his powers under section 10(a)(4) of the Federal Arbitration Act (FAA), 9 U.S.C. 1 et seq., either in construing the arbitration clause as he did or in certifying a class. Accordingly, the court affirmed the judgment of the district court.

http://j.st/rXf

U.S. Steel Mining Co., LLC v. Director, OWCP, et al.

Court: U.S. 11th Circuit Court of Appeals

Docket: 11-14468

Opinion Date: June 27, 2013

Judge: Cox

Areas of Law: Constitutional Law, Health Law, Labor & Employment Law

U.S. Steel appealed the award of benefits to plaintiff, the widow of a deceased miner, under the black lung benefits program. The Benefits Review Board affirmed the award, concluding that plaintiff did not need to show the cause of her husband's death. The court concluded that 30 U.S.C. 932(l), as amended by section 1556(b) of the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 1556(b), 124 Stat. 119, 260, eliminated the need for survivors who could meet its requirements to prove that their associated miners died due to black lung disease; it applied retroactively to survivors' claims filed in the specified period; and this retroactive application did not violate the Due Process Clause of the Fifth Amendment. Accordingly, the court denied U.S. Steel's petition to review the Board's ruling.

http://j.st/KRM

Bankruptcy -- Adversary proceedings -- Investment fund that had control over original lenders of loan to defendant company to obtain a lottery and gaming license in Jamaica and entity that entered into forward share sale agreement for future right to purchase up to 17% of shares in defendant company filed multi-count complaint against 31 defendants, including debtor and five relief defendants, seeking determination that debts and claims against debtor were nondischargeable and seeking recovery from a variety of defendants based primarily on Federal and Florida racketeering laws -- Jurisdiction -- Related-to -- Severed counts asserting claims against defendants other than debtor should be dismissed for lack of subject matter jurisdiction -- It is not possible to determine either aspect of related-to jurisdiction in absence of an amended complaint, at which time reviewing court will be able to determine what causes of action survive and whether such actions are sufficient to trigger related-to jurisdiction, either by impact or common nucleus of facts -- Motions to dismiss for lack of personal jurisdiction are granted -- Plaintiffs failed to adequately allege personal jurisdiction over foreign defendants on basis that they are each co-conspirators and part of one or more of alleged criminal enterprises described in complaint where complaint fails in its description and allegations of their conspiracy or enterprise -- Standing -- Investment fund lacks standing to bring any action arising under Federal RICO and Florida RICO or the conspiracy claims associated with those actions because, even though RICO claims can be assigned, the assignment of such claims must be specific and complaint does not include any allegations that claims were assigned to investment fund -- Res judicata -- Claims relating to plaintiff's assertion of ownership right to, or interest in, stock and dividends derived therefrom are barred by res judicata with respect to certain defendants and barred by collateral estoppel with respect to other parties to complaint -- Jamaican judgment must be given full comity and recognition where plaintiffs have not argued that Jamaican court was incompetent or that its proceedings were not civilized or that Jamaican judgment violates American public policy notions of what is decent and just, and where allegations of fraud on Jamaican court were not brought before Jamaican courts and plaintiff has not complained that it could not bring this issue before such court -- Extraterritoriality -- Severed counts should be dismissed because there is no basis upon which any of counts, as described, would trigger application of any of Federal or Florida RICO laws or support any Florida state-law claims, where complaint does not allege a significant relationship between Florida or United States and any of the harm allegedly suffered by either plaintiff -- Plaintiffs cannot rely only on money, faxes, and copies of loan documents passing through Florida to overcome problems of extraterritoriality -- Relief defendants -- Claims against relief defendants should be dismissed with prejudice, because no court has recognized that a private party litigant has the right to include relief defendants in a lawsuit and, even if there was such a recognized concept, any cognizable claim against a relief defendant arises only from the claim that such defendant is holding something over which the relief defendant has no legitimate claim -- Claims asserted against relief defendants all relate to stock to which Jamaican court has already ruled plaintiff has no right -- Counts seeking imposition of constructive trusts on all of assets of relief defendants describe actual claims against relief defendants, but complaint fails to state a cause of action for assertion of constructive trust against general assets of relief defendants -- Pleading requirements -- Shotgun pleading -- Complaint fails to comply with requirements of Rule 8, where complaint's use of similar defined terms, and its conflation of facts, defendants, and claims in its various factual recitals, makes it virtually impossible to figure out who is alleged to have done what to whom, when and where -- Racketeering -- Pleading requirements -- Federal and Florida RICO claims and RICO conspiracy claims, which are based on mail and wire fraud, fail to comply with pleading requirements of Rules 8, 9 and 12 -- State law tort claims -- Claims for conversion, civil theft, common law conspiracy, common law fraud, and fraud in the inducement are dismissed with prejudiced, or dismissed with opportunity to amend -- Dischargeable debts -- Claims seeking determination that debts owed by debtor are non-dischargeable based on 11 U.S.C. §523(a)(2) as debt arising from false representation or fraud by debtor, §523(a)(4) as debt arising from embezzlement or larceny, and §523(a)(6) as debt arising from willful and malicious injury by debtor are dismissed, some with leave to amend and others with prejudice

In re: PAUL G. MOUTTET, Debtor. U.S. Bankruptcy Court, Southern District of Florida.

Bankruptcy -- Claims -- Administrative expenses -- Priority -- Conversion of bankruptcy case from chapter 11 case to chapter 7 case does not impact the priority of a chapter 11 super-priority claim granted under Section 364(c)(1) of Bankruptcy Code, whether or not that claim is viewed as administrative claim

In re: NATIONAL LITHO, LLC, Debtors. U.S. Bankruptcy Court, Southern District of Florida, Miami Division.

Civil rights -- Attorney's fees -- Prevailing party -- District court abused discretion by awarding prevailing party attorney's fees under 42 U.S.C. section 1988 to plaintiff who was awarded $1.00 in nominal damages for violation of her Fourth Amendment right to be free from illegal seizure, given the de minimis nature of plaintiff's victory -- Plaintiff's victory is not substantial enough to justify award of attorney's fees, given degree of success obtained, significance of legal issue on which plaintiff prevailed, and public purposes served -- For purposes of measuring degree of success obtained, substantial difference between $25,000 judgment sought and nominal award received suggests that plaintiff's victory is in fact purely technical -- Plaintiff's victory carries very little legal significance, if any at all, given that plaintiff's litigation did not “change the law”, will not aid qualified immunity ligation in future cases, and did not alter landscape of civil rights law in public schools -- Plaintiff's litigation did not serve public purpose where examination of relief sought and obtained makes clear that litigation was commenced to redress private injury -- District court applied improper legal standard in making the determination to award attorney's fees when it misstated potential deterrent effect of plaintiff's litigation, by actually using attorney's fees as the deterrent to future civil rights violations

LAQUARIUS GRAY, a minor, by and through her mother and next friend, Toniko L. Alexander, Plaintiff-Appellee, v. ANTONIO BOSTIC, Defendant-Appellant. 11th Circuit.

Contracts -- Licensing agreement -- Appeals -- Jurisdiction -- Eleventh Circuit has jurisdiction over appeal of breach of contract claim that would also require resolution of a claim of patent infringement for the complainant to succeed where the patent infringement issue is heavily fact-bound and is not a “substantial question” of federal law -- Licensing agreement in instant case unambiguously granted plaintiff/licensee the exclusive right to use defendant's patents for blood irradiation system, preserved rights of defendant to exploit patents for products other than the system at issue, and prohibited defendant from infringing patented technology to create a directly competing medical device -- Language prohibiting defendant, during term of the agreement, from developing, manufacturing, distributing, promoting, marketing, selling, or leasing competing medical device embodying, in whole or in part, the patents at issue is not unenforceable restrictive covenant under Florida law -- District court did not clearly err in finding that subsequent medical device developed by defendant did not infringe patent, in whole or in part -- Failure to maintain patent -- District court did not err in finding that, although defendant breached agreement by failing to pay maintenance fees on one of the patents at issue, it was not a material breach because plaintiffs did not show that they suffered any harm -- District court did not clearly err in finding that defendant's refusal to consent to assignment of agreement to licensee's successor was not unreasonable -- Damages -- Although district court held that plaintiff committed first material breach of license agreement by assigning its interests without obtaining required consent of defendant, and assuming this ruling is correct under Florida law, it did not err in concluding that defendant was not entitled to any damages on its counterclaim because defendant/counterclaimant, with knowledge of breach, unreasonably delayed sending default notice and notice of termination until over a year after plaintiffs filed suit; or in finding that, although defendant had breached provision of license agreement which prevented it from competing with plaintiff for seven years, that breach was excused because of plaintiff's previous, first material breach -- Whether plaintiff's sublicense agreement with another entity was tantamount to an unconsented-to assignment under Florida law is unclear -- Question certified to Supreme Court of Florida: When a licensee enters into a contract to transfer all of its interests in a license agreement for an entire term of a license agreement, save one day, but remains liable to the licensor under the license agreement, is the contract an assignment of the license agreement, or is the contract a sublicense?

MDS (CANADA) INC., a Canadian corporation, BEST THERATRONICS, LTD., a Canadian corporation, BEST MEDICAL INTERNATIONAL, INC., a.k.a. Beast Medical International, Inc., Plaintiffs - Counter Defendants - Appellants, v. RAD SOURCE TECHNOLOGIES, INC., a Florida corporation, Defendant - Counter Claimant - Appellee. 11th Circuit.

Trademarks -- Infringement -- Appeals -- Jurisdiction -- Where district court ruled in favor of defendant on charge of trademark infringement but ruled against defendant on its affirmative defense that trademark was not enforceable, defendant is entitled to vacatur of portion of order adverse to him -- Supreme Court precedent clearly prescribes vacatur of district court's jurisdiction on question of validity, as the legal consequences of an appeal by an otherwise successful defendant in an infringement suit on merits of that question

UNIQUE SPORTS PRODUCTS, INC., Plaintiff - Appellee, v. FERRARI IMPORTING COMPANY, d.b.a. Gamma Sports, Defendant - Appellant. 11th Circuit.

Wrongful death -- State sovereign immunity -- Appeal from denial of state sovereign immunity to corrections personnel working at county jail as to state-based wrongful death claims from commission of suicide by inmate while in custody at jail -- Questions certified to Alabama Supreme Court: Whether the immunity granted to sheriffs' jailers pursuant to Alabama Code Section 14-6-1 applies where the conduct at issue occurred before Section 14-6-1's effective date, but the complaint was filed after the statute took effect? Whether Alabama Code Section 14-6-1's requirement that jailers act “in compliance with the law ” in order to receive immunity is intended to encompass only violations of the criminal code or all violations of Alabama law?

SHERRIE JOHNSON, as administratrix of the Estate of Alquwon Johnson deceased, Plaintiff-Appellee, v. RYAN CONNER, SONYA MAYO, GEORGE PARHAM, Captain, Defendants-Appellants, BARBOUR COUNTY, et al., Defendants. 11th Circuit.

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Health law appeals, bad faith insurance, medical malpractice and roasted chicken and garlic with sage-butter wild potatoes

Insurance -- Bad faith -- Jurisdiction -- Removal of state court action to federal court -- Remand to state court -- Diversity -- Under 28 U.S.C. section 1446(b), motion to remand bad faith action, which was removed to federal court on the basis of diversity, is granted where insurer's notice of removal was filed more than a year after “commencement of the action” -- Argument that action did not commence until plaintiffs amended complaint to add bad faith claim and underlying judgment on initial uninsured motorist contract claim became final, is rejected -- Under law of Florida, where action was originally filed, a civil action is commenced on date initial compliant is filed -- Further, plain language of section 1446(b) suggests that “commencement of the action” means the filing of original complaint that sets in motion resolution of all claims that may properly disposed of in the action, and addition of a new claim does not reset one-year limitation period -- Insurer's effort to invoke “separate and independent” controversy doctrine for invoking federal jurisdiction in removal action based purely on diversity necessarily fails where judiciary has been effectively divested of its power to analyze diversity actions under section 1441(c)
THOMAS A. MOULTROP and PATRICIA GUY MOULTROP, plaintiffs, v. GEICO GENERAL INSURANCE COMPANY, defendant. U.S. District Court, Southern District of Florida.

Insurance -- Property -- Conditions precedent -- Examination under oath -- Error to enter summary judgment in favor of Florida Insurance Guaranty Association, as successor in interest for insurer, based on failure of insured and, subsequently, its assignee to submit to examination under oath where FIGA failed to plead and prove prejudice -- Moreover, record indicates that FIGA was not prejudiced
WHISTLER'S PARK, INC., Appellant, v. THE FLORIDA INSURANCE GUARANTY, ETC., Appellee. 5th District.

  Health Care Reform: TAXES LURK BEHIND COURT TEST OF OBAMA HEALTH LAW, 20 No. 1 Westlaw Journal Health Law 3, Westlaw Journal Health Law May 24, 2012 WASHINGTON, May 16 (Reuters) - While Supreme Court watchers focus on the controversial insurance requirement in President Obama's health care law, lesser known is that the court's upcoming ruling will also decide the fate of billions of dollars in new taxes. The 2010 law includes a 3.8 percent boost in taxes on investment income and a 0.9 percent increase in the Medicare payroll tax, both hitting people who earn more than $200,000 a year.

Health Care Reform: U.S. SETS DEADLINE FOR PROPOSALS ON STATE HEALTH CARE EXCHANGES, 20 No. 1 Westlaw Journal Health Law 4, Westlaw Journal Health Law May 24, 2012 WASHINGTON, May 16 (Reuters) - The Obama administration forged ahead with health care reforms, announcing a Nov. 16 deadline for state governments to submit proposals showing how they intend to operate health insurance exchanges in 2014. The Department of Health and Human Services released a detailed blueprint of the legal and operational requirements states must meet in their proposals if they expect to win federal approval to begin operating regulated insurance markets, in whole or in part.

Health Care Reform/Health Exchanges: NEW JERSEY GOVERNOR VETOES HEALTH EXCHANGE BILL, CALLS IT 'PREMATURE', 20 No. 1 Westlaw Journal Health Law 5, Westlaw Journal Health Law May 24, 2012 Rejecting a key provision of President Obama's health care overhaul law, Republican New Jersey Gov. Chris Christie has vetoed a measure that would have set up a health insurance exchange in the state. The Patient Protection and Affordable Care Act, Pub. L. No. 111-148, requires most Americans to carry health insurance by 2014 or face a fine. To help consumers meet this mandate, the law calls for states to establish "health exchanges," an online marketplace that would give small employers

Health Care Reform/Medicaid Service Fees: HHS PROPOSES PAY BOOST FOR MEDICAID DOCTORS, 20 No. 1 Westlaw Journal Health Law 6, Westlaw Journal Health Law May 24, 2012 Primary care physicians could see a pay raise in the next two years for treating Medicaid patients under a rule proposed May 9 by the Obama administration. The Department of Health and Human Services said the increase would bring service fees for Medicaid primary care in line with those paid by Medicare. Under the rule, physicians would see a 34 percent increase in average Medicaid primary care payments, according to the HHS.

Veterans Health Benefits: VETS LOSE SUIT ON MENTAL HEALTH CARE, Veterans for Common Sense v. Shinseki, 20 No. 1 Westlaw Journal Health Law 7, Westlaw Journal Health Law May 24, 2012 Courts cannot order the U.S. Department of Veterans Affairs to overhaul the way it cares for the treatment of military veterans with combat-related illnesses, a federal appeals court has ruled. The full 9th U.S. Circuit Court of Appeals said allegations of systemic delays and neglect in mental health care for veterans is something Congress, not the courts, needs to address.In a 10-1 decision, the appellate court reversed a prior 2-1 ruling by a 9th Circuit panel.

Reproductive Rights/Legislation: ARIZONA BANS FUNDING FOR PLANNED PARENTHOOD, OTHER ABORTION PROVIDERS, 20 No. 1 Westlaw Journal Health Law 8, Westlaw Journal Health Law May 24, 2012 Arizona Gov. Jan Brewer, R, has signed a bill that bans Planned Parenthood and other family planning organizations that perform abortions from receiving public funds. Signed into law May 4, House Bill 2800 excludes cases in which a clinic needs to perform an abortion in order to save the life of the mother or if the pregnancy is the result of an act of rape or incest. The legislation applies to any health care provider that is eligible for federal funding under 42 U.S.C. 1396d(1)(2)(B)

Reproductive Rights: JUDGE STOPS TEXAS FROM BARRING PLANNED PARENTHOOD FROM HEALTH PROGRAM, Planned Parenthood Ass'n of Hidalgo County v. Suehs, 20 No. 1 Westlaw Journal Health Law 9, Westlaw Journal Health Law May 24, 2012 A federal judge has temporarily blocked the state of Texas from excluding Planned Parenthood clinics from participating in the government-funded Women's Health Program because the organization provides abortions. The state's Health and Human Services Commission initiated a rule last year barring it from contracting with entities affiliated with abortion providers.Putting the state rule on hold until he can hear full arguments in the case.

Medical Devices/Patents: CORDIS TO APPEAL $40 MILLION JUDGMENT IN STENT PATENT CASE, Boston Scientific Corp. v. Cordis Corp., 20 No. 1 Westlaw Journal Health Law 10, Westlaw Journal Health Law May 24, 2012 Cordis Corp. has filed a notice of appeal in response to a $40 million judgment entered in favor of Boston Scientific Corp. after a Delaware federal judge doubled a jury verdict in a stent design patent dispute. U.S. District Judge Sue L. Robinson of the District of Delaware issued the enhanced damages order March 13, saying the doubling of the jury's $19.5 million award was "reasonable under the circumstances."She denied Cordis' motion for judgment as a matter of law

Medical Malpractice: CALIFORNIA JURY AWARDS $74.5 MILLION FOR GIRL'S BIRTH INJURIES, Blunt v. Haupt, 20 No. 1 Westlaw Journal Health Law 11, Westlaw Journal Health Law May 24, 2012 A California jury has awarded $74.5 million to the parents of a 3-year-old girl who suffers from cerebral palsy allegedly caused by an obstetrician's negligence during her birth. The San Luis Obispo County Superior Court jury awarded $53 million in future medical expenses for Jennifer and Andrew Blunt's daughter Sofia, in addition to $21.5 million in damages for emotional distress, future lost wages and noneconomic damages. The verdict is thought to be one of the largest in California history.

Nursing Homes: CLASS ACTION ALLEGES INADEQUATE STAFFING AT CALIFORNIA NURSING HOMES, Mingura v. HCR ManorCare, 20 No. 1 Westlaw Journal Health Law 12, Westlaw Journal Health Law May 24, 2012 Nursing home chain HCR ManorCare lured elderly and dependent adults to enter its facilities in California by concealing that they regularly fell below the "bare minimum" staffing requirements, a class-action lawsuit alleges. Plaintiff Rebeca Mingura says the company violated state health and consumer protection laws by failing to provide adequate staff to fulfill the legal minimum amount of direct nursing care to each patient.

Torts -- Nursing homes -- Jurisdiction -- Non-residents -- Action against non-resident defendants who had ownership interests in entities that owned and operated Florida nursing homes -- Circuit court erred in finding that it had personal jurisdiction over defendants where, although plaintiff established defendants' ownership interests in nursing home's operating and management companies, plaintiff failed to establish any connexity between defendants' financial interests and alleged abuse from which plaintiff's claims arise, and failed to show that defendants have sufficient minimum contacts -- Plaintiff failed to demonstrate that defendants had control over day-to-day operations of nursing home sufficient to establish agency relationship where affidavit provided by plaintiff established nothing more than defendants' ownership interest -- Ownership interest, without more, is insufficient to establish personal jurisdiction over non-resident defendants
HARRIS SCHWARTZBERG; HARRIS SCHWARTZBERG TRUST; STEVEN SCHWARTZBERG TRUST; JUDITH SCHWARTZBERG TRUST; SCHWARTZBERG DESCENDANTS TRUST; HARRIS SCHWARTZBERG 2003 TRUST; STEVEN SCHWARTZBERG 2003 TRUST; HS MIDWEST TRUST #1; JS MIDWEST TRUST; FAM MIDWEST TRUST; JUDITH SCHWARTZBERG 2003 TRUST; HARRIS SCHWARTZBERG 2004 GST TRUST 1; HARRIS SCHWARTZBERG 2004 GST TRUST 2; JUDITH SCHWARTZBERG 2004 GST TRUST 1; JUDITH SCHWARTZBERG 2004 GST TRUST 2; SCHWARTZBERG FAMILY 2004 GST TRUST; SCHWARTZBERG 2004 DESCENDANTS TRUST; JS NATIONAL TRUST; HS NATIONAL TRUST #1; HS NATIONAL TRUST #2; FAM NATIONAL TRUST; and MAXWELL STOLZBERG, Appellants, v. KIM K. KNOBLOCH, as Personal Representative of the Estate of William Knobloch, Deceased, Appellee. 2nd District.

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Class Action? Chicago Lawyer Sues Southwest, Says Airline Breached Free-Drink Coupon Contract

"Although the airline revised its policy in August of last year, notifying customers that such coupons would be honored only on the day of the flight after August 2011, a Chicago lawyer is challenging that change.
Adam J. Levitt, who allegedly has about 45 now-worthless free-drink coupons from Southwest, filed suit yesterday in federal court in Chicago, according to Reuters.  The complaint, which seeks class action status, contends that the carrier breached a contract with passengers by changing its policy and refusing to honor the coupons, which have no expiration date. Alcoholic beverages purchased on board otherwise would cost about $5 each." More.

Posted in ABA Journal by Marcia Neil, Nov. 17, 2011

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Bank of America sued for outsourcing customer calls overseas

Posted by Zoe Tillman in The National Law Journal   August 04, 2011

"A class action filed Wednesday accuses Bank of America Corp. of putting the privacy of its customers' financial data at risk of U.S. government surveillance by transferring service calls to overseas call centers."  More.

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The End of Consumer Class Actions? Supreme Court Upholds AT&T Arbitration Contract

Posted in ABA Journal Law News Now  Apr 27, 2011 9:29 AM CDT  By Debra Cassens Weiss

The U.S. Supreme Court has sided with AT&T in its bid to enforce contract provisions banning class actions and requiring individual arbitration in consumer disputes.

The Federal Arbitration Act pre-empts a California common-law rule that allowed some consumers to avoid contracts in which they waived their class action rights, the court ruled in an opinion (PDF) by Justice Antonin Scalia.

"The dissent claims that class proceedings are necessary to prosecute small-dollar claims that might otherwise slip through the legal system,” Scalia wrote in his opinion. “But states cannot require a procedure that is inconsistent with the FAA, even if it is desirable for unrelated reasons.”

Tom Goldstein of SCOTUSblog calls the 5-4 decision in AT&T Mobility v. Concepcion “super-significant.” In a preview of the case, Vanderbilt law professor Brian Fitzpatrick had warned that a ruling for AT&T could “end class-action litigation in America as we know it.”

The court ruled against cell phone customers Vincent and Liza Concepcion, who sued AT&T for advertising discounted cell phones but charging sales tax—$30.22—on the full retail price. They had asked the court to uphold California court rulings finding AT&T's contractual class-action waivers were unconscionable as applied to consumers. More.

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Peppermint chocolate truffles and healthy insurance developments

Health Care Reform: VIRGINIA FEDERAL JUDGE DERAILS PART OF HEALTH CARE REFORM LAW, Commonwealth v. Sebelius, 18 No. 8 Westlaw Journal Health Law 1, Westlaw Journal Health Law December 21, 2010
A federal judge in Virginia has rejected a key part of President Obama's health care reform law, ruling it is unconstitutional to require people to purchase or obtain health insurance or face a penalty. U.S. District Judge Henry Hudson of the Eastern District of Virginia is the first jurist in the country to rule that Congress exceeded its constitutional authority in setting the minimum-coverage mandate."An individual's personal decision to purchase, or decline purchase, of health insurance.

Medicaid Services: CUTS IN MEDICAID HOME SERVICES WILL HURT LOUISIANA, SUIT SAYS, Pitts v. Greenstein, 18 No. 8 Westlaw Journal Health Law 2, Westlaw Journal Health Law December 21, 2010
Several low-income Louisiana residents say that although the state has announced budgetary cuts to home services, it has no clear plan to prevent nearly 11,000 needy people from being institutionalized in nursing facilities. Plaintiffs Helen Pitts, 78, Kenneth Roman, 47, Denise Hodges, 53, and Ricki Ainey 30, filed a class-action lawsuit, asserting the state's Department of Health and Hospitals is poised to slash its long-term personal care services program to help shore up a $1.6 million budget.

Medicare Fraud: CLINIC OWNERS GET PRISON FOR STEALING MEDICARE FUNDS, United States v. Pearson, 18 No. 8 Westlaw Journal Health Law 3, Westlaw Journal Health Law December 21, 2010
The owners of a defunct Mississippi clinic accused of cheating Medicare and Medicaid of millions of dollars have been sentenced to federal prison. U.S. District Judge Keith Starrett of the Southern District of Mississippi sentenced Theddis Marcel Pearson and Telandra Gail Jones to 10 years in prison and ordered them to pay $18 million in restitution. He also ordered them to forfeit $3.6 million in cash already seized by federal authorities.The defendants owned Statewide Physical Medicine Group.

Dental Malpractice: NEGLIGENT TOOTH EXTRACTION CAUSED WOMAN'S BLINDNESS, SUIT SAYS, Harrison v. United States, 18 No. 8 Westlaw Journal Health Law 4, Westlaw Journal Health Law December 21, 2010
A Kentucky woman says her sinus cavity was punctured during a tooth extraction at a federally operated health clinic, which caused life-threatening injuries and complete vision loss in her left eye. According to the complaint filed in the U.S. District Court for the Eastern District of Kentucky, Tammy Harrison saw Dr. Chaz Vose, a dentist at the White House Clinics-Berea, Aug. 20, 2009, to repair a cavity in her upper left molar. Vose performed an extraction that day.

Medical Device: MEDICAL DEVICE SUPPLIER ISN'T 'HEALTH CARE PROVIDER', Orthopedic Res. v. Swindell, 18 No. 8 Westlaw Journal Health Law 5, Westlaw Journal Health Law December 21, 2010
A trial court correctly determined that a medical device distributor is not a "health care provider" in the context of a Texas law requiring that plaintiffs file expert reports to accompany medical malpractice lawsuits, a state appeals court has found. A three-judge panel of the Court of Appeals in Dallas said distributor JTW Medical Products Inc. was acting outside the scope of its contract with a health care provider when its president allegedly gave a patient's husband faulty information.

Medical Malpractice: DOCTOR'S NEGLIGENCE, NOT MAN'S INTOXICATION, CAUSED INJURY, Beebe v. Hartman, 18 No. 8 Westlaw Journal Health Law 6, Westlaw Journal Health Law December 21, 2010
A Michigan appeals court has ruled that a Michigan man's intoxication at the time of a snowmobiling accident does not shield his doctor from malpractice liability allegedly associated with the treatment of his injuries. The ruling reverses the Branch County Circuit Court's order granting summary judgment to Dr. Christina Sheely and her practice pursuant to Mich. Comp. Laws 600.2955a.The law provides an absolute defense in an action over the death or injury of a person when alcohol impairment.

Nursing Homes: PATIENTS SUFFER SUB-PAR CARE AT CALIFORNIA FACILITIES, CLASS ACTION SAYS, Valentine v. Thekkek Health Servs., 18 No. 8 Westlaw Journal Health Law 7, Westlaw Journal Health Law December 21, 2010
A group of California skilled nursing facilities operated by Paksn Inc. has "systematically" failed to meet state minimums for direct patient care and staffing, according to a state court class action. Maryann N. Valentine says Vacaville, Calif.-based Paksn, Thekkek Health Services, and seven nursing homes and licensees owned by Antony and Prema Thekkek have continuously failed to provide 3.2 hours of daily, direct nursing care to each patient as mandated by Cal. Health & Safety Code.

Nursing Homes: HOME'S NEGLECT CAUSED ACTOR GENE BARRY'S DEATH, FAMILY SAYS, Barry v. Sunrise of Woodland Hills, 18 No. 8 Westlaw Journal Health Law 8, Westlaw Journal Health Law December 21, 2010
The children of film and television actor Gene Barry have alleged in a California state court lawsuit that a Los Angeles-area nursing home caused his death by neglecting to monitor his condition after a debilitating fall. According to the complaint filed in the Los Angeles County Superior Court, Sunrise of Woodland Hills admitted Barry in 2009 despite knowing it was not equipped to meet his needs as an Alzheimer's and dementia sufferer.

Pharmaceuticals: GLAXO AND SUBSIDIARY SETTLE CIVIL, CRIMINAL CASES FOR $750 MILLION, United States v. GlaxoSmithKline, 18 No. 8 Westlaw Journal Health Law 9, Westlaw Journal Health Law December 21, 2010
Pharmaceutical firm GlaxoSmithKline has agreed to pay the government $600 million, and its SB Pharmco subsidiary will plead guilty to violating federal law and pay a $150 million fine for shoddy drug manufacturing at a Puerto Rico plant. The civil and criminal cases were based on violations of the Food, Drug and Cosmetic Act, 21 U.S.C. 351(a)(2)(B), at SB Pharmco's now-closed plant in Cidra, Puerto Rico.

Obstruction of Justice: FORMER GLAXO LAWYER CHARGED WITH OBSTRUCTION IN 'OFF-LABEL MARKETING' CASE, United States v. Stevens, 18 No. 8 Westlaw Journal Health Law 10, Westlaw Journal Health Law December 21, 2010
A former vice president and in-house counsel at GlaxoSmithKline has been indicted for allegedly withholding documents from the Food and Drug Administration during an investigation into the marketing of an antidepressant for unapproved uses. The Justice Department identified the attorney as Lauren Stevens, of Durham, N.C. The charges were filed in the U.S. District Court for the District of Maryland. Although the drug and the name of Stevens' employer were not disclosed in the agency's statement.

Wrongful Death: LACK OF BLOOD FOR DYING MOM COSTS MINNESOTA HOSPITAL $4.6 MILLION, Calcagno v. Emery, 18 No. 8 Westlaw Journal Health Law 11, Westlaw Journal Health Law December 21, 2010
A Minnesota jury has awarded $4.6 million to the family of woman who died following the birth of her first child because the hospital did not have enough blood for a transfusion. Claudia Calcagno, 36, died hours after giving birth to her son Jan. 18, 2008, at Monticello-Big Lake Community Hospital, according to the complaint filed in the Wright County District Court. Calcagno bled to death after Drs. Jennifer Emery and Timothy Olson could not perform a lifesaving transfusion.

News in Brief: NEWS IN BRIEF, 18 No. 8 Westlaw Journal Health Law 12, Westlaw Journal Health Law December 21, 2010
Christian group to challenge health care reform ruling A Christian legal group says it will challenge a federal judge's decision allowing the government to require uninsured individuals to purchase health insurance coverage. U.S. District Judge George Caram Steeh denied the Thomas More Law Center's request for an injunction against a provision in the Patient Protection and Affordable Care Act that imposes a penalty on anyone who fails to buy or otherwise obtain health insurance by 2014.
Automotive (Personal Jurisdiction): OVERSEAS GOODYEAR COMPANIES SAY THEY CAN'T BE SUED IN U.S., Goodyear Luxembourg Tires v. Brown, 21 No. 12 Westlaw Journal Insurance Coverage 2, Westlaw Journal Insurance Coverage December 23, 2010
Goodyear companies based in Luxembourg, Turkey and France argue in a merits brief to the U.S. Supreme Court that they should not be subject to jurisdiction in this country simply because their products are sold here. "The exercise of general jurisdiction over petitioners, simply because their products reached North Carolina through the stream of commerce, violates the due-process clause," the companies say.
Automotive (Preemption): TRIAL LAWYERS: PREEMPTION RULING DENIED 'RIGHT TO LEGAL RECOURSE FOR INJURY', Williamson v. Mazda Motor Am., 21 No. 12 Westlaw Journal Insurance Coverage 3, Westlaw Journal Insurance Coverage December 23, 2010
The American Association for Justice says in an amicus brief filed with the U.S. Supreme Court that a California appeals court's ruling in a seat belt case "expands the doctrine of preemption far beyond its constitutional foundation." The group also says the decision denied the plaintiffs a valid remedy for wrongful death. The plaintiffs are Delbert and Alexa Williamson, the husband and daughter, respectively, of accident victim Thanh Williamson.

Bankruptcy: SUPREME COURT HEARS BANKRUPTCY CASE OVER OWNERSHIP COSTS FOR VEHICLES, Ransom v. MBNA Am. Bank, 21 No. 12 Westlaw Journal Insurance Coverage 4, Westlaw Journal Insurance Coverage December 23, 2010
The U.S. Supreme Court heard oral argument Oct. 4 in a dispute over whether Chapter 13 debtors who own vehicles free and clear of any obligations can take the standard "ownership costs" deduction when calculating their projected disposable income. At issue is a 2009 decision by the 9th U.S. Circuit Court of Appeals that above-median-income debtors can deduct vehicle ownership expenses only if they are actually making automobile loan or lease payments.
Bankruptcy: FEDS, TRUSTEES GROUP BACK ANNA NICOLE SMITH'S ESTATE IN SUPREME COURT, Stern v. Marshall, 21 No. 12 Westlaw Journal Insurance Coverage 5, Westlaw Journal Insurance Coverage December 23, 2010
The federal government and a group of bankruptcy trustees have told the U.S. Supreme Court that a bankruptcy judge had the authority to award Anna Nicole Smith a huge chunk of her billionaire husband's estate. Acting U.S. Solicitor General Neal Katyal and the National Association of Bankruptcy Trustees filed separate amicus briefs supporting Smith's former boyfriend and lawyer, Howard K. Stern, in his bid to reinstate the late bombshell's inheritance.Stern claims the 9th U.S. Circuit Court of Appeals.
Class Action: SUPREME COURT TO DECIDE IF STATES CAN BAN CLASS-ACTION WAIVERS, AT&T Mobility v. Concepcion, 21 No. 12 Westlaw Journal Insurance Coverage 6, Westlaw Journal Insurance Coverage December 23, 2010
In a case that could affect the future of class-action litigation, the U.S. Supreme Court heard oral argument Nov. 9 to determine if federal arbitration law preempts state laws that ban class-action waivers in contracts. AT&T Wireless customers filed three suits in California federal court in 2005 and 2006, alleging the telecom fraudulently charged $30 in sales tax for phones it advertised as "free." Although the company tried to force the plaintiffs to arbitrate their claims.
Class Action (Pharmaceuticals): HIGH COURT TAKES UP CLASS CERTIFICATION FIGHT IN SUIT OVER RECALLED DRUG, Smith v. Bayer Corp., 21 No. 12 Westlaw Journal Insurance Coverage 7, Westlaw Journal Insurance Coverage December 23, 2010
The U.S. Supreme Court will hear oral argument Jan. 18 over whether a West Virginia man's proposed state court class action over the cholesterol drug Baycol was properly blocked because a similar suit had already been rejected by a Minnesota federal court. Keith Smith filed a proposed economic-loss class action against Baycol maker Bayer Corp. in a West Virginia state court shortly after the drug's 2001 recall. The suit was dismissed in a ruling later affirmed by the 8th U.S. Circuit Court of Appeals.

Class Action (Employment): WAL-MART GETS HIGH COURT TO HEAR LARGEST-EVER CLASS ACTION, Wal-Mart Stores v. Dukes, 21 No. 12 Westlaw Journal Insurance Coverage 8, Westlaw Journal Insurance Coverage December 23, 2010
In a move that is expected to permanently change the landscape of class- action lawsuits, the U.S. Supreme Court has agreed to hear Wal-Mart Stores' challenge to a gender discrimination lawsuit with 1.5 million potential plaintiffs. "While not unprecedented, the Supreme Court's decision to address this issue likely signals that it intends to review the underpinnings of the expansive class certified in this case and the extent to which the pursuit of punitive damages impacts the certification.

Computer & Internet (First Amendment): CALIFORNIA, VIDEO GAME INDUSTRY GO TO BATTLE OVER VIOLENT-GAMES BAN, Schwarzenegger v. Entm't Merchants Ass'n, 21 No. 12 Westlaw Journal Insurance Coverage 9, Westlaw Journal Insurance Coverage December 23, 2010
The U.S. Supreme Court heard oral argument Nov. 2 in California's bid to reinstate its ban on the sale of violent video games to minors. The state is challenging a decision of the 9th U.S. Circuit Court of Appeals that struck down the law last year. Video Software Dealers Ass'n v. Schwarzenegger, 556 F.3d 950 (9th Cir. 2009).The appeals court upheld a ruling in favor of the Entertainment Software Association and the Video Software Dealers Association, two industry trade groups that sued the state.

Employment (Roundup): SUPREME COURT AGREES TO SETTLE EMPLOYMENT LAW CONFLICTS, 21 No. 12 Westlaw Journal Insurance Coverage 10, Westlaw Journal Insurance Coverage December 23, 2010
So far this term, the U.S. Supreme Court has agreed to review eight employment-related lawsuits, including Wal-Mart Stores v. Dukes, by far the most watched case this year. Dukes is a huge gender-bias class action with a potential plaintiff class of 1.5 million women and billions in damages. This roundup looks at six of those cases, which cover a range of topics, including workplace privacy, third-party retaliation, liability for employment of "unauthorized aliens".

Employment: JUSTICES TO DECIDE IF ORAL COMPLAINT COVERED BY WAGE-AND-HOUR STATUTE, Kasten v. Saint-Gobain Performance Plastics Corp., 21 No. 12 Westlaw Journal Insurance Coverage 11, Westlaw Journal Insurance Coverage December 23, 2010
The U.S. Supreme Court heard argument in October in a case where an employer accused of retaliation under a federal wage-and-hour law has defended itself by arguing the fired employee's oral complaint is not protected under the statute. A decision in the case is expected to have huge ramifications for workers who hope to prove that they were targeted for retaliation because they engaged in a protected activity. This is especially relevant given the fact that employees frequently complain orally.

Environmental: CLIMATE CHANGE CASE HEADS TO SUPREME COURT, Am. Elec. Power Co. v. Connecticut, 21 No. 12 Westlaw Journal Insurance Coverage 12, Westlaw Journal Insurance Coverage December 23, 2010
The U.S. Supreme Court said Dec. 6 it would review an appeals court decision that revived a public nuisance lawsuit against several power companies by eight states seeking to reduce greenhouse gas emissions from coal-burning facilities. The companies want the high court to decide whether judges can regulate greenhouse gas emissions at the behest of states and private parties and, if so, under what standards. Attorney Richard Faulk of Gardere Wynne Sewell.
Government Contract: STATE SECRETS PRIVILEGE TESTED IN GOVERNMENT CONTRACT CASE, Gen. Dynamics Corp. v. United States, 21 No. 12 Westlaw Journal Insurance Coverage 13, Westlaw Journal Insurance Coverage December 23, 2010
The U.S. Supreme Court will be determining the role of the state secrets privilege in a lawsuit brought by two companies challenging the government's termination of their contract to build Navy jets. The high court agreed to hear the case Sept. 28 upon the request of both Boeing Co., as the successor to McDonnell Douglas Corp., and General Dynamics Corp. The companies are asking the Supreme Court to decide whether the government can assert the state secrets privilege.

Intellectual Property (Patent Infringement): STANDARD FOR INDUCEMENT OF PATENT INFRINGEMENT IS BEFORE HIGH COURT, Global-Tech Appliances v. SEB S.A., 21 No. 12 Westlaw Journal Insurance Coverage 14, Westlaw Journal Insurance Coverage December 23, 2010
The U.S. Supreme Court has agreed to decide whether "deliberate indifference" is the correct standard for the "state of mind" element in a claim for active inducement of patent infringement. Petitioner Pentalpha Enterprises Ltd. argues that the U.S. Court of Appeals for the Federal Circuit got it wrong when it applied the deliberate- indifference standard. The appeals court should have used the "purposeful, culpable expression and conduct" standard applied by the Supreme Court in MGM Studios.
Intellectual Property: UNIVERSITY'S PATENT RIGHTS BATTLE WITH BIOTECH FIRM ON COURT'S DOCKET, Stanford Univ. v. Roche Molecular Sys., 21 No. 12 Westlaw Journal Insurance Coverage 16, Westlaw Journal Insurance Coverage December 23, 2010
The U.S. Supreme Court has agreed to decide whether a federal law pertaining to government contractors' patent assignment rights barred a Stanford University researcher from assigning his rights to a third party. In its petition for certiorari Stanford said the U.S. Court of Appeals for the Federal Circuit was wrong when it said no. Opposing Stanford is Roche Molecular Systems, which says the Federal Circuit correctly decided that the Bayh-Dole Act, 35 U.S.C. 200, did not bar the assignment.

Pharmaceutical (Preemption): COURT TO RULE ON PREEMPTION OF STATE LAW CLAIMS AGAINST VACCINE MAKERS, Bruesewitz v. Wyeth Inc., 21 No. 12 Westlaw Journal Insurance Coverage 17, Westlaw Journal Insurance Coverage December 23, 2010
In oral argument held Oct. 12 the U.S. Supreme Court grappled with the question of whether the National Childhood Vaccine Injury Act bars all design defect claims or whether a family has recourse for an injury in state court. The case was argued before eight justices. Justice Elena Kagan recused herself because she was serving as U.S. solicitor general when the government submitted an amicus brief urging the high court to review the case.A 4-4 tie would result in a win for defendant Wyeth Inc.

Securities Litigation & Regulation (Fraud): JUSTICES WEIGH ARGUMENTS ON INVESTMENT ADVISERS' 'MISLEADING' STATEMENTS, Janus Capital Group v. First Derivative Traders, 21 No. 12 Westlaw Journal Insurance Coverage 18, Westlaw Journal Insurance Coverage December 23, 2010
The U.S. Supreme Court heard arguments Dec. 7 in a case that will decide whether shareholders can sue mutual fund manager Janus Capital Group for allegedly helping to mislead investors. The plaintiff, First Derivative Traders, traded shares of Janus stock and alleged that the stock price was artificially inflated as a result of misleading statements in the prospectuses. In November several groups filed amicus briefs supporting the plaintiff's position.

Securities Litigation & Regulation (Fraud): HIGH COURT TO RULE ON DRUG COMPANIES' DUTY TO DISCLOSE 'ADVERSE EVENTS', Matrixx Initiatives v. Siracusano, 21 No. 12 Westlaw Journal Insurance Coverage 19, Westlaw Journal Insurance Coverage December 23, 2010
The U.S. Supreme Court is set to hear arguments in a securities fraud case that has the pharmaceutical industry alarmed over the prospect of having to disclose to investors so-called "adverse event reports" even when those reports are statistically trivial. Adverse event reports are anecdotal complaints from users indicating harm from a pharmaceutical product. The case involves Zicam, an over-the-counter cold remedy marketed by defendant Matrixx Initiatives Inc.

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Civil law decisions with a healthy mix and classy class actions

Complete Angler, LLC v. City of Clearwater, Fla. ,(M.D.Fla.)
Real Property - Marine themed mural on outside wall of bait shop was protected non-commercial speech.
A marine themed mural on the outside wall of a bait shop and a banner placed over the mural reciting the First Amendment were protected non-commercial speech. Therefore, a city's ordinance defining paintings displayed in conjunction with a commercial enterprise as commercial speech rather than art work was an impermissible restriction on non-commercial speech as applied to the mural and banner. Although the mural could occasionally inspire the purchase of bait, it reflected a local artist's impression of the natural habitat and waterways surrounding the bait shop. It also alerted viewers to the threats posed to certain fish species it depicted.

Josendis v. Wall to Wall Residence Repairs, Inc. ,(S.D.Fla.)
Labor and Employment - Laborer employed by Florida company did not fall under FLSA's wage and hour protections under theory of enterprise coverage.
A laborer employed by a family-owned Florida residential remodeling company did not fall under the wage and hour protections of the Fair Labor Standards Act (FLSA) under a theory of enterprise coverage. The company asserted in its statement of undisputed facts on its motion for summary judgment that it never grossed $500,000 annually during the limitations period, and the employee's opposition statement of facts did not properly controvert that assertion. The laborer also failed to establish that his employer was "engaged in the operation of a hospital or an institution primarily engaged in the care of the sick, the aged, or the mentally ill or defective who reside on the premises of such institution" through the assertion that a "Jewish Home and Hospital" itself would be covered by that language and that the maintenance and repair work he performed there during the relevant period was "closely or intimately related" to enterprise engaged in interstate commerce.

AXA Equitable Life Ins. Co. v. Infinity Financial Group, LLC ,(S.D.Fla.)
Insurance - Nonresident trustees and trusts holding life policies were subject to personal jurisdiction based on civil conspiracy claim.
Trustees, as residents of Delaware, holding life insurance policies in trusts organized in Delaware, purposely directed their activities at Florida residents, in an alleged civil conspiracy to fraudulently recruit elderly Florida applicants for policies that were paid for and held by outside investors in trusts to disguise true ownership of the policies. Thus, the Delaware trustees and trusts had sufficient contacts with Florida to have fair warning that they could be subject to the insurer's suit in Florida, as required to satisfy due process requirements for exercise of jurisdiction consistent with fair play and substantial justice.

Dissolution of marriage -- Equitable distribution -- Disproportionate distribution -- Factors relied upon by trial court did not weigh in favor of unequal distribution of property in favor of wife -- Desirability of retaining marital home as residence for parties' dependent children did not justify permanent transfer of marital home to former wife -- To extent trial court relied upon this factor to award marital residence to former wife, it should have granted her an exclusive interest only until parties' youngest child reached majority -- Fact that parties had used funds principally originating in former wife's trust account to purchase property in foreign state and marital home was found in prior appeal to be irrelevant to distribution of marital property in this case -- Unequal distribution cannot be based on spouse's disproportionate financial contributions to marriage unless there is showing of “extraordinary services over and above the normal marital duties,” and evidence does not demonstrate the former wife provided such extraordinary services on former husband's behalf -- Remand with instructions that marital assets be equally divided between the parties -- Alimony -- Error to impute income to husband from “sedentary employment” where trial court made finding following first trial that former husband's physical disability left him “unemployable,” appellate court concurred with this finding on appeal, no evidence was offered regarding amount or source of imputed income, and trial court made no findings concerning either factor -- Remand for reevaluation of alimony award without any consideration of imputed income
Reported at 34 Fla. L. Weekly D845b

Contracts -- Civil procedure -- Vacation of judgment -- Order vacating judgment for defendant in action for breach of contract to build and sell residence to plaintiff, and setting case for new trial, on ground that court committed judicial error by depriving plaintiff of opportunity to seek return of earnest money deposit -- Any error in trial court's failure to order return of earnest money deposit is not type of error cognizable under rule 1.540 -- Judicial errors must be corrected within ten days pursuant to rule 1.530 -- Even if trial court acted on its own initiative pursuant to rule 1.530(d), court was without jurisdiction to order new trial on its own motion because court did not initiate action within time limit set out in rule -- Order vacating final judgment reversed
Reported at 34 Fla. L. Weekly D795a

Attorney's fees -- Claim or defense not supported by material facts or applicable law -- Administrative law judge erred in awarding attorney's fees under section 57.105, Florida Statutes, to party who did not comply with mandatory notice provisions of statute -- Counsel's letter to opposing counsel threatening to seek attorney's fees under section 57.105 was not the same as the statutorily required motion, which is required to be served on opposing counsel and later filed with court
Reported at 34 Fla. L. Weekly D826a

Contracts -- Stock purchase agreement -- Arbitration -- Action against guarantors of promissory notes given in connection with stock purchase agreement was not subject to arbitration provision in stock purchase agreement -- Arbitration provision in agreement applies only to indemnification claims, and suit to enforce unconditional guarantee was not a claim for indemnity -- Arbitration clause applies to claims for indemnification caused by purchaser's failure to fulfill an obligation of an agreement related to stock purchase agreement, but plaintiffs are not seeking indemnification from purchaser, but instead are seeking payment on unconditional guarantees executed by defendants
Reported at 34 Fla. L. Weekly D814c

Prohibition -- Judges -- Disqualification -- Real property -- Action challenging amendments to development's declaration of covenants and restrictions which imposed mandatory country club membership on all new owners taking title to certain property in defendant's subdivisions -- Where defendant discovered that judge was involved in similar dispute with his own homeowners association and had expressed critical opinions on the matter, a circumstance which aligned judge with plaintiff's position on the primary issue to be determined in suit, defendant had well-founded fear of bias, and disqualification was required
Reported at 34 Fla. L. Weekly D807b

Hoving v. Lawyers Title Ins. Co.,(E.D.Mich.)
Class Actions - Named plaintiff was not appropriate class representative in action against title insurer to recover overcharges on mortgage rates.
A federal district court in Michigan has denied certification of a refinancing homeowner's putative class action against a title insurer which allegedly overcharged on premiums on policies issued to mortgage lenders. The named plaintiff had not established that he could fairly and adequately protect the interests of the class. His effort at setting up a do-it-yourself trust established some doubt about whether he had the authority to grant the refinancing mortgage on the property and close the loan at the time. Furthermore, his testimony that in attempting to set up the trust he filled out the papers himself, was unfamiliar with the process, sought no legal advice despite the fact his sister was an attorney who served in the Judge Advocate General Corps, conveyed his property to complete strangers with whom he had never spoken and whom he had never met, paid a fee but kept no copies of documents or a record of payment, and was defrauded cast grave doubt over his ability to perform the functions of a lead plaintiff in major class action litigation.

Rodriguez v. West Publishing Corp.,(C.A.9 (Cal.))
Class Actions - Incentive agreements signed by some class representatives did not require rejection of antitrust settlement.
Although incentive agreements between the named plaintiffs and class counsel created conflicts among the named plaintiffs, their counsel, and the rest of the class in an antitrust action against two bar review course providers, a district court was not required to reject a $49 million settlement of the action on that account, since there were two other class representatives who had no incentive agreements and whose separate counsel were not conflicted. The agreements required class counsel to apply to a court for an incentive award for the named plaintiffs, and tied the named plaintiffs' compensation to a sliding scale based on the amount recovered.

State, Dept. of Transp. v. Douglas Asphalt Co.,(Ga.App.)
Appeals - Dismissal of defendant's cross-appeal was required following dismissal of plaintiff's direct appeal.
The Court of Appeals of Georgia has held that a defendant's cross-appeal from the trial court's partial grant of a plaintiff's motions in limine to exclude certain evidence and partial denial of the defendant's initial motion for summary judgment had to be dismissed, upon the dismissal of the plaintiff's direct appeal from the court's partial grant of defendant's second motion for summary judgment. This was the case because the grant of the plaintiff's motions in limine and the trial court's partial denial of the defendant's motion for summary judgment were not final appealable judgments, but were subject to the certification requirement and application procedures for interlocutory appeal. Since the plaintiff's appeal had been dismissed, and the defendant filed no application for interlocutory review of the grant of the plaintiff's motions in limine or the court's partial denial of the defendant's motion for summary judgment, the Court of Appeals had no independent jurisdiction over the cross-appeal. In so holding, the Court overruled a prior decision.

U.S. v. Nicholas,(C.D.Cal.)
Privileges - Attorney-client privilege applied to client's interview with his attorneys.
The attorney-client privilege applied to a client's interview with his attorneys regarding his employer's stock option granting practices. The substance of interview was disclosed by his attorneys to the employer's outside auditors, to the Securities and Exchange Commission (SEC), to the United States Attorney's Office, and was summarized in a FBI form memoranda. The client reasonably believed an attorney-client relationship existed with his attorneys in both the direct and derivative actions brought against him and his employer. He also reasonably believed that he was communicating with his attorneys in the context of the attorney-client relationship for the purpose of obtaining legal advice. Finally, he reasonably believed that any information he provided to his attorneys would remain confidential.

Payne v. Wyeth Pharmaceuticals, Inc.,(E.D.Va.)
Estoppel - Discharged debtor was judicially estopped from seeking damages exceeding $1 million in personal injury action.
A discharged Chapter 7 debtor, who sought $25 million in damages in personal injury action, was judicially estopped from seeking damages exceeding $1 million from defendant where the debtor declared the value of his claim as $1 million in the bankruptcy court and never amended his schedules to reflect his belief that his claim was worth more. The debtor advanced a position in which was inconsistent with the position he took in bankruptcy court, the value of debtor's claim was a question of fact, bankruptcy court relied upon debtor's representations made on the bankruptcy schedules, including his representation of his $1 million valuation, before agreeing to discharge his debt, and the debtor had a motive for concealment when valuing his claim and/or failing to amend after he had filed the lawsuit since the secured creditors would have been able to collect on any award or settlement recovered by the debtor.

Fort Brown Villas III Condominium Ass'n, Inc. v. Gillenwater,(Tex.)
Judgment - Striking of affidavit of plaintiff's expert witness submitted in response to defendants' summary judgment motion was justified.
The Supreme Court of Texas has held that the rule providing for the exclusion of evidence due to an untimely response to a discovery request applies in a no-evidence summary judgment proceeding. In so holding, the Court abrogated Court of Appeals' decisions holding to the contrary. In the case at bar, the Court concluded that the trial court's striking of an affidavit of the plaintiff's expert witness submitted in response to the defendants' no-evidence summary judgment motion was justified, because the plaintiff failed to timely disclose his expert pursuant to the deadline provided in the agreed scheduling order and the subsequent extension agreements. Also, the plaintiff failed to satisfy his burden of establishing good cause or lack of unfair surprise or prejudice against the defendants.

This decision may not yet be released for publication.

Budisukma Permai SDN BHD v. N.M.K. Products & Agencies Lanka (Private) Ltd.,(S.D.N.Y.)
Attachment and Garnishment - Plaintiff need only make prima facie showing of alter ego liability to avoid vacatur of maritime attachment.
A plaintiff need only make a prima facie showing of alter ego liability to avoid the vacatur of a maritime attachment, a New York district court has ruled, noting a split of authority on the issue within its district and following the majority view. A vessel owner satisfied this prima facie burden in pleading that related entities were the alter egos of a charterer in support of a maritime attachment against the related entities. The owner alleged that a website identified the charterer and the related entities as a "group of companies," and that the related entities sold the same products. The owner also alleged that the charterer and the related entities had common office addresses and telephone numbers and a common, three-person core of directors and shareholders, that the related entities were closely owned and directed by what appeared to be the same group of people, and that the related entities were the successors in interest of the charterer.

Wickline v. Dutch Run-Mays Draft, LLC,(S.D.W.Va.)
Removal - Court could not consider evidence of $100,000 settlement offer made after removal in determining motion to remand.
The District Court could not consider evidence of a $100,000 offer of settlement made by the defendant after the case was removed on the basis of diversity jurisdiction, or expert testimony that the amount-in-controversy for diversity jurisdiction was satisfied, in determining the plaintiff's motion to remand, based on a failure to establish the jurisdictional amount-in- controversy for diversity jurisdiction. The Court noted that neither the settlement offer nor the expert testimony was on the record at the time the notice of removal was filed.

Shumaker, Loop & Kendrick, LLP v. Zaremba,(N.D.Ohio)
Privileges - Burden-shifting approach was to be used for purposes of determining validity of written waiver of attorney-client privilege.
As a matter of first impression, the district court held that a burden- shifting approach should be used for purposes of determining the validity of a written waiver of the attorney client privilege. The proponent of the privilege had the burden of demonstrating, by a preponderance of the evidence, that the elements of the privilege were established. The opponent of the privilege was required to present sufficient evidence upon which a reasonable person could find that the privilege had been waived, and, if the opponent met its burden, the proponent of the privilege was required to disprove each demonstrated claim of waiver by a preponderance of the evidence.

Vargas v. Shepherd,(Ind.App.)
Privileges - Former patient waived the physician-patient privilege as to surgeon's treatment of former patient's prior back injury.
A former patient waived the physician-patient privilege as to a surgeon's treatment of the former patient's prior back injury. The former patient reinjured his back while working at an apartment complex and filed a lawsuit against the apartment complex to recover damages. By filing the lawsuit, the former patient placed at issue the condition of his back and any injury or treatment relating to it.

Ford Motor Co. v. Castillo,(Tex.)
Discovery - Manufacturer was entitled to discovery in breach of settlement action to determine juror misconduct in underlying tort action.
A plaintiff motorist in a products liability action, by seeking enforcement of a settlement agreement, necessarily asserted a separate claim for breach of contract against the defendant automobile manufacturer. Therefore, the manufacturer was entitled to conduct discovery to determine whether a juror's pre-settlement note to the trial court concerning the maximum allowable award in the products liability action, which note prompted the settlement, was attributable to any outside jury influence. The juror's note, which was submitted following a recess, raised a legitimate question about the integrity of the trial process.

This decision may not yet be released for publication.

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