The Fourth Turning

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Until a few years ago, I was only really interested in reading fiction. (I liked to read the Chuck Klosterman books, but I really thought of those more as extended New York Times Magazine or Book Review pieces than “non-fiction”.) Recently, however, I have found that non-fiction books have tended to have a bigger impact on me than novels. I …

The Recognitions

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I hate William Gaddis. As a would-be writer, Gaddis has had no direct influence on me. And yet, pretty much everything I have done, or planned to do, or started to do, as a writer, which I genuinely thought to be fresh or innovative, I have come to discover has pretty much already been done by him. The invasion or …

Winter’s Tale

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If someone had told me what Mark Helprin’s Winter’s Tale was about, I don’t think I would have read it. Written in 1983, the plot is three parts Gangs of New York, two parts Age of Innocence, with a dash of Dickens and a pinch of Lord of the Rings. A turn-of-century “period piece” set in and around the city …

American Pastoral

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I love the last sentence. “What on earth is less reprehensible than the life of the Levovs?” I love the Swede Levov character. I don’t know if I have ever identified with a fictional character (or even another real person) in the same way I identified with Levov. (Who, whether coincidentally or by design, is a literary alter ego of …

Infinite Jest

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From: Steve Herman To: Bill Chisholm Sent: Tuesday, January 31, 2006 12:36 AM Subject: Book of Last Ten Years What was “the” book of the last 10 years I am supposed to read? ————————————– From: Bill Chisholm Sent: Tuesday, January 31, 2006 11:12 AM infinite jest by david foster wallace ————————————– From: Steve Herman To: Bill Chisholm Sent: Sunday, March …

The Castle (with a touch of Michael Chabon and a lot of James Frey)

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The Castle is one of those books that is sitting on a shelf which I have been meaning to read for years. It really wasn’t as Kafkaesque as I would have expected. Why didn’t the guy just leave? But the book did have those great passages. The Castle, whose contours were already beginning to dissolve, lay silent as ever; never …

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Is John Updike the Shakespeare of Our Time? (The Centaur) (and a touch of Seinfeld)

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It seems like every piece of literary criticism I read lately uses Updike’s work as some sort of benchmark for great literature in the 20th Century. (X is the new Updike…; as Updike and X replaced Faulkner and Joyce…; there isn’t a clear figure from the latter part of the century whom you can point to like you could point …

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New York Superior Court Denies Motion to Seal Documents in Product Liability Action in the Interest of Public Policy

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Two parents sued Graco after their child died due to an alleged defect in a Graco stroller. The parties negotiated a settlement that contained a confidentiality agreement, and the plaintiffs filed an unopposed motion to seal with the court. While acknowledging the propriety of confidentiality of court proceedings under limited circumstances, the court noted that the inquiry into whether to …

The Martian (and a Lesson from Behavioral Economics)

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I thought The Martian was a pretty good movie. Well-made. Well-filmed. Well-acted. (I didn’t really like the Matt Damon character all that much, and found the voice-over narration via video diary a little formulaic and annoying, although I frankly can’t, off the top of my head, think of a better alternative.) But it was reasonably suspenseful and interesting. Thought-provoking. And/But …

District Court in Virgin Islands Calls Into Question the Efficacy of Stipulated Confidentiality Orders

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“In the Stipulated Confidentiality Order, the parties agree that certain categories of documents will be designated as confidential. If documents are so designated, the Stipulated Confidentiality Order requires that ‘if filed, the documents shall be filed under seal and shall remain sealed while in the Office of the Clerk as long as they retain their status as stamped “Confidential” documents.’  …

The Long Arc of Justice

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View Full Document Like many of you, I suspect, I began law school with something called Pennoyer v. Neff, followed shortly thereafter by something called a “progeny.” Not being a lawyer at the time, the whole thing made very little sense to me. While it seemed logical to ask whether the parties or events had a sufficient connection to a …

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“Legalnomics”: Lessons from the Field of Behavioral Economics about Perception and Decision-Making for Trial Lawyers

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View Full Document When I first started practicing law in 1994, the art of trial advocacy embraced the concept of storytelling as a central way of communicating the plaintiff’s cause to the jury. The convention, at that time, was to paint the plaintiff as the protagonist in his or her own life’s story. The jury would be sympathetic to his …

Personal Remarks

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From the LAJ President’s Luncheon, March 20, 2015: View Full Document Last night I read a blog post by my partner Jed about how hard it is to be a plaintiffs’ lawyer.[1] And I was reminded of this scene in the movie Philadelphia. Everyone probably remembers the scene where Denzel Washington goes to see Tom Hanks in his home, as …

To the Rules Committee: Some Thoughts About Class Actions

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Last year, it became clear that the Civil Rules Committee was going to take yet another look at potential changes to the Federal Class Action Procedure, embodied in Rule 23.  For whatever it may or may not have been worth, I provided the Committee with a few thoughts about the current state of class actions, from kind of a Big Picture …

The King of Shorts

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During the Deepwater Horizon litigation, some of the lawyers circulated a few anonymous parodies of interviews that were given by a lawyer who is not involved in the litigation to the U.S. Chamber of Commerce, apparently seeking some attention for himself.  With a Hundred Years of Solitude type feel, they attempt of make light of a fairly incredulous situation.  Are some people really so desperate to feel relevant or …

Standing On The Shoulders Of Those Who Came Before Us

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View Full Document Thank you for the honor of serving as LAJ president. I look forward to the coming year and pledge my service to you. There is one important step you can take today that will make a difference in a new lawyer’s life. Become a mentor. In my law practice, I have been extremely fortunate to have benefitted …

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ABA Clarifies the “Generally Known” Exception Allowing the Use of Information Obtained in Connection with a Former Client’s Representation

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Under both the ABA Model Rule and Louisiana Rule of Professional Conduct 1.9(c)(1), a lawyer may not use information relating to the representation of a former client to the former client’s disadvantage without informed consent, (or except as otherwise permitted or required by the Rules of Professional Conduct), unless the information has become “generally known”.  The ABA’s Standing Committee on Ethics and …

N.Y. State Bar Prohibits Marketing Fees to Avvo

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A lawyer who wished to participate in Avvo Legal Services sought an Ethics Opinion from the New York State Bar Association.  Legal services would be offered through Avvo’s website, based on marketing fees that Avvo charges.  “Because” the Committee said, “Avvo’s method of operation is crucial to our response, we will devote several paragraphs to describing the Avvo Legal Services …

Duties Owed by Appointed Counsel to MDL Litigants Whom They Do Not Formally Represent

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Stemming from my experience in the BP Oil Spill Litigation, I started to think about the specific duties owed by Lead Counsel to other litigants in an MDL whom they do not formally represent. Which questions, among others, were raised in a series of speeches and papers that have evolved over time, Ethical Questions Raised by the BP Oil Spill …

ABA Issues Formal Opinion re Securing Communication of Protected Client Information over the Internet

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In sum, the Standing Committee on Ethics and Professional Responsibility advised as follows: “A lawyer generally may transmit information relating to the representation of a client over the internet without violating the Model Rules of Professional Conduct where the lawyer has undertaken reasonable efforts to prevent inadvertent or unauthorized access. However, a lawyer may be required to take special security …

U.S. Fifth Circuit Finds Attorney’s Promissory Note to Former Client Non-Dischargeable Where Attorney Violated Rule 1.8(h)

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Mr. Selenberg, an attorney, filed for Bankruptcy, and sought to discharge, among other things, a promissory note that was provided to a former client whose case Mr. Selenberg allowed to prescribe.  He argued that the debt should be discharged, as he did not make any “false representations” to his former client, Mrs. Bates. “For one, he notes that he accurately …

U.S. Supreme Court Reverses $2.7 Million Discovery Sanction Against GM Where Not Causally Related to the Misconduct

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Plaintiffs sued Goodyear, alleging that the failure of a G159 tire caused the family’s motorhome to swerve off the road and flip over. After several years of contentious discovery, marked by Goodyear’s slow response to repeated requests for internal G159 test results, the parties settled the case. Some months later, the plaintiffs’ lawyer learned that, in another lawsuit involving the …

U.S. Fifth Circuit Affirms Sanction of Attorneys Who Withheld Material Evidence from Rule 26 Disclosures

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The plaintiff in the underlying lawsuit claimed she was sexually assaulted on multiple occasions while incarcerated at the Maverick County Detention Center, operated by the defendant, GEO Group.  During the plaintiff’s deposition, she was confronted with recordings of telephone calls which had not be identified or produced as part of the initial disclosures under Rule 26.  The plaintiff filed a …

ABA Provides Guidance for Attorneys Seeking to Withdraw from Representation

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The ABA Standing Committee on Ethics and Professional Responsibility was called upon to address the potential conflict between Court Orders and/or Rules requiring the bases for withdrawal of representation and the attorney’s obligation to maintain client confidences.  While the issue was raised in the context of a desired withdrawal for non-payment of fees in particular, the Committee provided guidance that …

Seventh Circuit Says Wife’s Unauthorized Access to Husband’s E-Mails Could Violate Federal Wiretap Act

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A husband embroiled in an acrimonious divorce brought suit against his wife claiming a violation of the Electronic Surveillance Act by surreptitiously placing an auto-forwarding “rule” on his e-mail accounts that automatically forwarded the messages on his e-mail to her. He also alleges that the wife’s divorce attorney violated the Act by “disclosing” the intercepted emails in response to his …

Covington & Burling Admonished for Representing Non-Party Witnesses in Depositions

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The defendant, Jacobs, hired Covington & Burling to devlop factual information and defenses relating to Jacobs’ work for the Tennessee Valley Authority.  Among other things, Covington helped identify non-party witnesses who might have factual information regarding the TVA-Jacobs contract.  Covington worked with the witnesses to prepare and submit declarations in support of Jacobs’ Motion to Dismiss, asserting derivative sovereign immunity …

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U.S. Ninth Circuit Vacates Nationwide Settlement Class Based on Variations in State Law

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A nationwide class action settlement arising out of misstatements by Hyundai and Kia regarding fuel efficiency was vacated by the U.S. Ninth Circuit Court of Appeals on the basis that the District Court was required to apply a choice-of-law analysis and consider whether variations in State Law destroyed predominance under Rule 23(b)(3) – noting, with respect to remand, that the Court …

U.S. Fifth Circuit Allows Removal under CAFA when Plaintiffs Seek Consolidation of New Action into Pre-Existing Multi-Plaintiff Case

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In 2002, over 600 plaintiffs filed a petition in Lester v. Exxon, alleging property damage and/or personal injuries arising from naturally occurring radioactive material (NORM). The State Court utilized a “flighting” system to segregate the Lester plaintiffs’ claims into smaller trials or “flights.”  There is no preclusive effect from one flight to the next, and, thus far, no flight has …

U.S. Third Circuit Refuses to Enforce Approved Class Settlement against the State of Louisiana as an Indirect Purchaser

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In the underlying lawsuit, private indirect purchasers moved for final approval of a class settlement, after the District Court had already certified the class. The State of Louisiana, an indirect Flonase purchaser, qualified as a potential class member but did not receive the approved Class Notice. Instead, it only received CAFA Notice.  In the second ancillary suit, the settling defendant, …

Louisiana Fourth Circuit Holds that Action for Intentional Spoliation Does Not Accrue Until Plaintiff Sustains Actual Harm

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One of the parties to an underlying child custody dispute filed a petition for damages based on the intentional spoliation of potentially relevant video recordings. The defendant argued, and the trial court held, that the action was prescribed, because it was filed more than one year after the trial of the custody matter, wherein the videos could have been useful. …

California Supreme Court Holds That Brand Manufacturers Are Liable for Failure to Warn Claims by Patients Who Took Generic Forms of the Medication

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“Federal law explicitly conveys to the brand-name manufacturer — and only that manufacturer — the responsibility to provide an adequate warning label for both generic terbutaline and its brand-name equivalent, Brethine. Only the brand-name drug manufacturer has unilateral authority to modify the drug’s label by adding to or strengthening a warning. Generic drug manufacturers are required to follow the brand-name …

U.S. Fifth Circuit Holds, Based on Language in Arbitration Provision at Issue, that Action which Included Claims for Injunctive Relief under Sherman Antitrust Act Were Not Subject to Arbitration

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Sued by a competitor for antitrust violations, the defendants sought to enforce an arbitration agreement. The magistrate judge granted the motion to compel arbitration, holding that the threshhold question of arbitrability belonged to an arbitrator. The district court reversed, holding it had the authority to rule on the question of arbitrability, and that the claims at issue were not arbitrable. …

ABA Clarifies the “Generally Known” Exception Allowing the Use of Information Obtained in Connection with a Former Client’s Representation

In Legal Ethics & Professionalism, What's New in the Courts by gravierhouseLeave a Comment

Under both the ABA Model Rule and Louisiana Rule of Professional Conduct 1.9(c)(1), a lawyer may not use information relating to the representation of a former client to the former client’s disadvantage without informed consent, (or except as otherwise permitted or required by the Rules of Professional Conduct), unless the information has become “generally known”.  The ABA’s Standing Committee on Ethics and …

U.S. Fifth Circuit Holds that Penalty Action for Failure to Provide Plan Documents is Subject to Louisiana’s One-Year Prescriptive Period

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“Babin primarily argues that the ten-year period should apply because his claim is based on a contractual and fiduciary obligation…. But analogizing §1132(c) to a breach of fiduciary duty does not help Babin’s case. Louisiana courts do not apply the ten-year statute of limitations to all breach of fiduciary duty claims. Rather, a breach of fiduciary duty claim is contractual …

U.S. Fifth Circuit Explains Savings Clause Affirming Dismissal of Suit for Life Insurance Benefits Originally Filed in State Court

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Swenson filed suit in Louisiana State Court seeking benefits from a life insurance policy after her husband passed away. The insurance company refused to pay based on its belief that Swenson’s husband was not a covered employee at the time of his death. Swenson cited Louisiana statutes imposing certain requirements on group life policies concerning the rights of a discharged …

U.S. Fifth Circuit Holds Express Warranty Claim Against the Manufacturer of Surgically Implanted Neurostimulator Not Preempted

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The preemption question “comes down to whether the warranty on Medtronic’s website was consistent with assessments made during the approval process, in which case this lawsuit would be preempted as a challenge to the FDA’s determination of safety and effectiveness, or whether the warranty goes beyond what the FDA considered. “What did the warranty promise? “Medtronic argues that it equates …

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