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

In What's New in ERISA Litigation?, What's New in the Courts by gravierhouseLeave a Comment

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 …

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

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

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 Reverses Policy 495

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The U.S. Fifth Circuit Court of Appeals agreed with Class Counsel that its previous 2013 decision in Deepwater Horizon I did not imply that revenues should be moved, ‘smoothed’, or otherwise re-allocated, and therefore reversed the Specialized Frameworks which had been established with “Policy No. 495” for Construction, Agricultural, Educational and Professional Services Claims. See Fifth Cir Decision Reversing Policy …

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 Affirms Class-Wide Damages Model, Reverses Certification of Fraud Claims, and Remands for Further Consideration of Pot. Waiver Issue and Its Pot. Effect on the Question of Adequacy

In What's New in Class Action Law?, What's New in the Courts by gravierhouseLeave a Comment

In a case against Progessive for breach of contract, statutory insurance law, and fraud claims relating to the adjustment of total-loss claims, the U.S. Fifth Circuit Court of Appeals rejected Progressive’s challenge under Comcast: “Plaintiffs’ liability theory is that Defendant unlawfully used WorkCenter Total Loss (WCTL) to calculate the base value of total loss vehicles. Plaintiffs claim that using WCTL, …

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

In Legal Ethics & Professionalism, What's New in E-Discovery and Spoliation?, What's New in the Courts by gravierhouseLeave a Comment

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 …

District Court Judge in Northern District of Ohio Compels Defendant to Write Computer Program to Extract Relevant Information

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Plaintiff filed putative class action alleging violations of the TCPA.  Specifically, Meredith Plaintiff asserts that Defendant’s practice of using autodialed, prerecorded-voice collection calls using contact information obtained from its clients or third-party skip-trace services foreseeably results in Defendant making numerous wrong number calls to the cell phones of people other than the debtor. Previously, the Court ruled on Plaintiff’s motion …

U.S. Third Circuit Reverses Summary Judgment on Preemption in Fosamax Litigation

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Fosamax is a drug manufactured by Merck that belongs to a class of drugs known as bisphosphonates.  Both Merck and the FDA have long been aware that antiresorptive drugs like Fosamax could theoretically increase the risk of atypical femoral fractures. The question that both Merck and the FDA faced in the years following the drug’s approval was whether the developing …

Louisiana Fourth Circuit Emphasizes that, in Considering a Motion to Decertify, the Court Should Consider the Prejudice to the Parties at that Stage of the Proceedings

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The Louisiana Fourth Circuit Court of Appeal recently articulated ten principles relating to a court’s decision on a Motion to Decertify a class: 1. A trial court’s decision denying a decertification motion is an interlocutory judgment that is immediately appealable. 2. A trial court’s decision denying a motion to decertify a class is one involving a valid exercise of discretion …