U.S. Fifth Circuit Affirms Class of Inmates for Injunctive Relief over Temperatures in Holding Areas

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Defendants’ overarching objection to the district court’s certification focuses on the common contention that “excessive heat constitutes a condition of confinement that poses a substantial risk of serious harm to the health of inmates.”  Defendants do not contest that putative class members are all exposed to essentially the same temperatures. Defendants also do not contest that Pack Unit temperatures, particularly …

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 …

U.S. Fifth Circuit Dismisses Appeal for Lack of Jurisdiction Where Appellant Fails to Timely Object in the District Court

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“The class members get nothing. The attorneys get their fees. A class member objects, but untimely. Consequently, we lack appellate jurisdiction.” Explaining more fully: “The Supreme Court has often underscored that only parties to a lawsuit, or those that properly become parties, may appeal an adverse judgment. But then the Devlin Court came along and concluded that it should carve …

U.S. Fifth Circuit Grants Rehearing, En Banc, to Consider the Appropriate Standard of Review for Factual Determinations Where Plan Does Not Afford Administrator Discretion

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On July 10, 2017, the U.S. Fifth Circuit granted a Petition for Rehearing, En Banc, to consider the panel’s decision in Ariana M. v. Humana, 854 F.3d 753 (5th Cir. 2017), affirming the denial of medical benefits to a plan beneficiary who had been hospitalized due to serious mental health conditions.  Applying an abuse of discretion standard of review under the Circuit’s …

U.S. Supreme Court Rejects Application of American Pipe Tolling to a Statute of Repose

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In 2007 and 2008, Lehman Brothers raised capital through several public securities offerings. In 2008, a putative class action asserted claims under Section 11 of the Securities Act, alleging that the registration statements included material misstatements or omissions. Because the complaint was filed on behalf of all persons who purchased the identified securities, petitioner was a member of the putative class. In …

Louisiana Fourth Circuit Affirms Verdict Against Tractor Manufacturer under the LPLA

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The plaintiff suffered permanently disabling injuries when she lost her footing and became pinned underneath the two rear tires of an over-the-road tractor while running alongside the vehicle in an attempt to shut off its engine. A jury found the manufacturer Daimler Trucks North America (DTNA) 90% at fault, while apportioning 10% of the fault to the owner of the …

U.S. Supreme Court Rejects Personal Jurisdiction in Pharmaceutical Case with Respect to Non-Resident Plaintiffs

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A group of plaintiffs, including 86 California residents and 592 residents of other states, sued Bristol-Myers Squibb Company (BMS) in California state court, alleging that the pharmaceutical company’s drug Plavix had damaged their health. BMS is incorporated in Delaware and headquartered in New York, and it maintains substantial operations in both New York and New Jersey. Although it engages in …

Magistrate Judge Limits Discovery of E-Mails and Text Messages to Those Directly Relevant to Employment Claims on Proportionality Grounds

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In suit brought by a former State employee for retaliation, invasion of privacy, and defamation, U.S. Magistrate Judge Erin Wilder-Doomes, in the Middle District of Louisiana, granted in part, and denied in part, the defendant employer’s motion to compel various e-mail and text messages. With respect to requests for plaintiff’s e-mails and text messages from his own personal cell phone …

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 …

U.S. Fifth Circuit Affirms Order to Reimburse Plan and to Pay Attorneys Fees, Rejecting Participant’s Challenge to ERISA’s Written Instrument Requirements

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Rhea was the beneficiary of an employee benefit plan who suffered injuries from medical malpractice. The plan covered some of her medical expenses, and, after she settled the malpractice claim, sought reimbursement.  Rhea refused to reimburse the plan, claiming that it did not have an enforceable written instrument.  The court, on report and recommendation of the presiding Magistrate Judge, held that …