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

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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

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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 …

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 …

Magistrate Judge in the Northern District of Indiana Declines to Compel Re-Production of Non-Compliant Electronic Data in Light of Proportionality Considerations

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Addressing the issue of whether electronically-stored information had been produced in compliance with Rule 34, Magistrate Judge Gotsch noted that: “To show that it produced documents as they were kept in the ordinary course of business, a producing party cannot simply assert that the format of its production comports with its usual business practices. A producing party must also show …

U.S. Ninth Circuit Affirms Certification of RICO Claims against Credit Card Processing Service Providers

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Small businesses and business owners who leased “point of sale” credit and debit card processing equipment brought two related class claims against Leasing Defendants, a group of entities who financed their acquisition of such equipment.  As a matter of general background: Credit and debit card transactions are processed through financial networks called interchanges that are run by entities such as …

Ninth Circuit Rejects Stand-Alone ‘Administrative Feasibility’ Requirement in Addition to the Superiority considerations under Rule 23(b)(3)

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Plaintiffs brought a putative class action against ConAgra on behalf of consumers who purchased Wesson-brand cooking oil products labeled “100% Natural” which they allege was false or misleading, as Wesson oils are made from bioengineered ingredients that are “not natural”.  The district corut granted class certification, and the U.S. Ninth Circuit Court of Appeals affirmed. “The language of Rule 23 …