Corporate fiduciary duty, business records, statute of limitations, and wild boar with mustard and thyme sauce and wild lingonberries

Appeals -- Absence of transcript -- Trial court erred in granting summary judgment in favor of insurer in case involving proper application of policy deductible -- Although there is no transcript of pre-trial conference where ruling was made, error is apparent on face of record where explanation of review documents submitted by insurer show that insurer applied the fee schedule authorized by 627.736(5)(a)1.f. to total charges before applying PIP deductible. NORTH BROWARD CHIROPRACTIC AND WELLNESS CENTER, INC. a/a/o CRISTINA CORRIDORI, Appellant, v. GOVERNMENT EMPLOYEES INSURANCE COMPANY, Appellee. 4th District.

Appeals -- Real property -- Appeal of nonfinal order scheduling sale of property ordered partitioned pursuant to final judgment -- Appeal is essentially an untimely challenge to judgment ordering partition of property where notice of appeal was filed more than 30 days after rendition of that final order -- Order of partition is final at such time as court directs sale of the property -- Appeal dismissed. LISONEL PEREZ, Appellant, v. PEDRO A. JAIMOT and MARILYN JAIMOT, Appellees. 3rd District.

Attorney's fees -- Trial court erred in awarding attorney's fees to defendant pursuant to prevailing party provision in contract where defendant failed to plead entitlement to contractual attorney's fees -- Exception to pleading requirement for seeking attorney's fee set forth in Stockman v. Downs is not applicable where plaintiff did not, through any action or inaction, waive any objection to defendant's failure to plead claim for contractual attorney's fees. TIMOTHY LENAHAN, Appellant, v. SHANNON LENAHAN, Appellee. 3rd District.

Civil procedure -- Relief from judgment -- Jurisdiction -- No error in vacating order setting aside mediated settlement agreement where suit had been voluntarily dismissed prior to entry of the order. GAYLE M. BURNS, Appellant, v. LAW OFFICES OF LYNWOOD ARNOLD, P.A., Appellee. 2nd District. 

Contracts -- Asset purchase agreements -- Assumption of debt -- Action alleging that defendant had assumed debt which was secured by equipment defendant purchased as part of APA -- Error to enter summary judgment in favor of plaintiff where plaintiff did not refute defendant's affirmative defense that plaintiff failed to state a cause of action against it -- Although plaintiff alleged that defendant assumed debtor's obligations under the note and repeatedly alleged that defendant breached “the note,” defendant had never been a party to the note -- Because any obligation that defendant may have to plaintiff is based solely on APA to which plaintiff was not a party, and which never mentioned the note, plaintiff has a cause of action against defendant only under third-party beneficiary theory -- Plaintiff's failure to allege requisite elements of a third-party beneficiary claim precluded entry of summary judgment in its favor -- Additionally, plaintiff did not refute affirmative defense of lack of consideration -- Reduction of APA purchase price by amount of debt did not constitute consideration, but simply ensured that defendant would not pay for the equipment twice. OTI FIBER, LLC, Appellant, v. CENTERSTATE BANK, N.A.; FLORIDA FIBER NETWORKS, LLC; DAVID ORSHAN; and DAVID S. SUAREZ, Appellees. 2nd District.

Dissolution of marriage -- Alimony -- Long-term marriage -- Trial court erred in denying former wife's request for alimony based on finding former husband had no ability to pay without also making a specific factual determination as to whether former wife had an actual need for alimony -- Moreover, when one party is entitled to permanent periodic alimony but other spouse has no current ability to pay, trial court should award a nominal sum which would give court jurisdiction to reconsider award should parties' financial circumstances change. IRENE SAMANIEGO, Appellant, v. LOUIS SAMANIEGO, Appellee. 2nd District.

Dissolution of marriage -- Attorney's fees -- Jurisdiction -- Timeliness of motion -- Trial court erred in denying wife's post-judgment motion for attorney's fees based on mistaken belief that rule 1.525 divested it of jurisdiction to entertain motion for fees filed more than 30 days after judgment -- Rule does not apply to family law cases -- Fee proceedings in family law cases are governed by section 61.16, and that statute does not impose 30-day limitation on trial court's post-judgment jurisdiction to consider fee motions. WELLY JUHL, n/k/a Welly Garza, Appellant, v. TED M. JUHL and TMJ OF PINELLAS COUNTY, INC., Appellees. 2nd District.

Employer-employee relations -- Veterans -- Retaliation -- Termination -- Employee who testified in judicial proceeding under a subpoena -- Sovereign immunity -- Action alleging wrongful termination in violation of section 92.57 and retaliation under the Uniformed Services Employment and Reemployment Rights Act -- Trial court erred in denying Fish and Wildlife Conservation Commission's motion to dismiss on sovereign immunity grounds -- Sovereign immunity bars private actions brought under USERRA against a state agency -- There is no clear and unequivocal waiver of sovereign immunity in section 92.57, and the waiver provisions of section 768.28 do not apply. FLORIDA FISH & WILDLIFE CONSERVATION COMMISSION, Appellant, v. JEFFREY HAHR, Appellee. 1st District.

Insurance -- Bad faith -- Third-party bad faith -- Contracts -- Cunningham agreements -- Limitation of actions -- Trial court erred in dismissing bad faith action based on conclusion that claim was barred by statute of limitations -- Parties' modified Cunningham agreement, which was intended to serve as the functional equivalent of the excess judgment needed to pursue third-party bad faith claim, did not constitute the functional equivalent of an excess judgment until the court approved it one year after both parties had signed it -- Trial court's conclusion that agreement did not require court approval was not supported by the plain language of the agreement, and was inconsistent with the parties' stated purpose for entering the agreement -- Because bad faith action was filed within four years from date trial court approved parties' agreement, the action was not barred by statute of limitations. WRIGHT INSURANCE AGENCY, INC. and ANTHONY WRIGHT, Appellants, v. NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, Appellee. 2nd District.

Insurance -- Homeowners -- Directed verdict -- Error to enter directed verdict in insurer's favor on claim that insurer breached contract by not fully paying for a covered loss within 20 days of receiving insured's sworn proof of loss based on trial court's conclusion that insurer had 90 days to investigate claim -- Subsection in loss-payment provision of insurance policy which contained the 90-day limit commenced upon insurer's receipt of notice of an initial claim, not upon filing of sworn proof of loss -- Viewing facts in light most favorable to insured, insured's lawsuit was not premature where a jury could have found that insurer received notice of initial claim more than 90 days prior to the filing of insured's suit -- Even assuming suit was premature, proper procedure would have been to abate the action or dismiss without prejudice -- Trial court erred by granting insurer a directed verdict on count which alleged that insurer breached contract by not fully repairing home after it exercised its option to repair -- Based on testimony at trial, a jury could reasonably have found that insurer exercised its option to repair notwithstanding insurer's failure to give written notice as policy required. MARY IWANICKI, Appellant, v. SAFEPOINT INSURANCE COMPANY, Appellee. 2nd District.

Paternity -- Child custody -- Petition for determination of paternity, parental responsibility, parenting plan, time-sharing schedule, and child support by petitioner, who claims to be biological father of child born during wedlock, seeking to gain custody of child -- Trial court violated due process by entering involuntary dismissal without affording petitioner opportunity to present his full case-in-chief, including opportunity to present evidence to establish standing. ALPHA RANSOM, Appellant, v. KITREANA GRANT-VAN BROCKLIN, et al., Appellees. 3rd District.

Torts -- Corporations -- Breach of fiduciary duty -- Conversion -- Aiding and abetting -- Dismissal -- Derivative action brought by one of two shareholders in closely-held corporation alleging that the other shareholder, with assistance from his family, froze plaintiff out of corporation and transferred corporate assets to a new competing entity -- Order dismissing complaint with prejudice for failure to state a cause of action is reversed -- Discussion of the fiduciary duties of officers and directors of a corporation -- Complaint stated a cause of action for breach of fiduciary duty against defendant shareholder where it alleged that defendant shareholder owed a fiduciary duty as the sole operating officer; defendant shareholder breached that duty by mounting a takeover of the company, diverting corporate business relationships and revenues to a competitor, and executing documents to transfer corporate property to competitor; and that alleged breaches damaged corporation by causing its assets to be wasted and dissipated to a nominal value -- There is no authority for proposition that a complaint must plead a breach of fiduciary duty with heightened specificity to state a cause of action -- Even assuming the existence of such an elevated pleading requirement, it was satisfied in this case -- Claims against defendant shareholder's family members stated a cause of action for aiding and abetting defendant shareholder's breach of fiduciary duty -- Allegations against defendant family members were not commingled where, although defendants were sometimes collectively referred to as the “family,” complaint set forth separate counts against each defendant family member and alleged specific conduct against each individual defendant -- Complaint stated a cause of action for conversion as to some of corporation's assets, such as goodwill of the business -- Action for conversion may be based upon a wrongful takeover of intangible interests in a business venture -- No error in dismissing conversion claim as to cash, misappropriation of trade secrets, and business and contractual relationships -- Error to dismiss claim of aiding and abetting conversion based on conclusion that Florida does not recognize such a cause of action -- Because Florida recognizes aiding and abetting liability for common law torts, it follows that Florida recognizes a claim for aiding and abetting conversion. HARRY TAUBENFELD, as shareholder of PASSOVER FB., INC., Appellant, v. JONATHAN LASKO, SAMUEL LASKO, ARLENE LASKO, AVI LASKO, and LASKO GETAWAYS, LLC., Appellees. 4th District.

Torts -- Dismissal -- Denial of motion -- Appeals -- Certiorari -- Petition seeking review of order denying motion to dismiss complaint for pure bill of discovery and directing petitioner to file an answer is denied because petitioner failed to demonstrate irreparable harm. IMC MEDICAL CENTERS, LLC and JOSEPH YORK a/k/a JOSEPH ZUMWALT, Petitioners, v. JOHN DELUCA, Respondent. 4th District.

Torts -- Sanctions -- Joint and severable liability -- Final judgment imposing sanctions against two parties jointly and severally is reversed where there was no basis in record for doing so. WIDERMAN MALEK, P.L. AND CELEBRATION LAW, P.A., Appellants, v. C.H. AS SETTLOR OF THE J.F. SPECIAL NEEDS TRUST, THE CENTER FOR SPECIAL NEEDS TRUST ADMINISTRATION, INC., AS TRUSTEE OF THE J.F. SPECIAL NEEDS TRUST, Appellees. 5th District.

 

Segarra Miranda v. Banco Popular de Puerto Rico
Court: US Court of Appeals for the First Circuit
Docket: 20-9006
Opinion Date: August 6, 2021
Judge: Sandra Lea Lynch
Areas of Law: Bankruptcy, Real Estate & Property Law
The First Circuit affirmed the judgment of the Bankruptcy Appellate Panel for the First Circuit (BAP) affirming the summary judgment entered by the bankruptcy court against the bankruptcy trustee (the Trustee) for an estate of two individuals, holding that an unrecorded mortgage in Puerto Rico is not a transfer of the debtor's property that is voidable by a bona fide purchaser that triggers the bankruptcy trustee's authority to avoid and preserve the lien. Jose Antonio Lopez Cancel and Carmen Nereida Medina Gonzalez acquired a property in Puerto Rico that they used as their primary residence. Banco Popular de Puerto Rico held the mortgage, but the mortgage was never recorded. The bankruptcy court treated the mortgage as a general unsecured claim covered by an earlier discharge order. The Trustee then filed this action to avoid the mortgage and preserve it on behalf of the bankruptcy estate, arguing that the unrecorded mortgage was a transfer of the debtor's property that was voidable by a bona fide purchaser. The bankruptcy court concluded that the Trustee could not avoid and preserve an unrecorded mortgage because, under Puerto Rican law, an unrecorded mortgage is not a property interest. The BAP affirmed. The First Circuit affirmed, holding that there was no error.

 

Reid Hospital and Health Care, Inc. v. Conifer Revenue Cycle Solutions, LLC
Court: US Court of Appeals for the Seventh Circuit
Docket: 20-1735
Opinion Date: August 11, 2021
Judge: HAMILTON
Areas of Law: Business Law, Contracts, Health Law
Healthcare revenue cycle management contractors manage billing and behind-the-scenes aspects of patient care, from pre-registering patients to reviewing and approving documentation upon release. Reid Hospital contracted with Dell, a revenue cycle management contractor. Their contract limited both sides’ damages in a breach of contract action in the absence of willful misconduct or gross negligence. Dell sold much of its portfolio to Conifer in 2012 while Dell was still losing money on the Reid contract. Conifer began reducing staff and neglecting duties; there was a slowdown throughout the revenue-management cycle and in processing patients’ discharge forms, leading to longer hospital stays that third-party payors refused to reimburse fully. After two years, Reid took its revenue operation back in-house. Reid's consultant found significant errors in Conifer’s work. Reid sued for breach of contract, claiming that Conifer’s actions caused the hospital to lose tens of millions of dollars. The court granted Conifer summary judgment, reading the contract as defining all claims for lost revenue as claims for “consequential damages,” prohibited absent “willful misconduct.” The Seventh Circuit reversed. Even if lost revenue is often considered consequential, this was a contract for revenue collection services and did not define all lost revenue as an indirect result of any breach. Lost revenue would have been the direct and expected result of Conifer’s failure to collect and process that revenue as required under the contract. The parties did not intend to insulate Conifer entirely from damages.

 

Life Spine, Inc. v. Aegis Spine, Inc.
Court: US Court of Appeals for the Seventh Circuit
Docket: 21-1649
Opinion Date: August 9, 2021
Judge: St. Eve
Areas of Law: Intellectual Property, Patents
Life Spine makes and sells a spinal implant device called the ProLift Expandable Spacer System. Aegis contracted with Life Spine to distribute the ProLift to hospitals and surgeons. Aegis promised to protect Life Spine’s confidential information, act as a fiduciary for Life Spine’s property, and refrain from reverse-engineering the ProLift. Aegis nonetheless funneled information about the ProLift to its parent company, L&K Biomed to help L&K develop a competing spinal implant device. Shortly after L&K’s competing product hit the market, Life Spine sued Aegis for trade secret misappropriation and breach of the distribution agreement. The district court granted Life Spine a preliminary injunction barring Aegis and its business partners from marketing the competing product. Aegis argues that the injunction rested on a flawed legal conclusion—that a company can have trade secret protection in a device that it publicly discloses through patents, displays, and sales. The Seventh Circuit affirmed. While public domain information cannot be a trade secret, a limited disclosure does not destroy all trade secret protection. Life Spine did not publicly disclose the specific information that it seeks to protect by patenting, displaying, and selling the ProLift. Life Spine’s trade secrets are not in the public domain but are accessible only to third parties who sign confidentiality agreements.

 

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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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