The plaintiff was seriously injured while operating a crane that started to tip when one of the crane’s counter-weights fell onto the cab, and knocked him to the ground. On appeal, the manufacturer argued that the warning about the general hazards of tipping over (severe injury or death, for example) – combined with the instructions about how to avoid a …
New York City Bar Association Issues Opinion re “Contingent” Loans to Attorneys
The New York City Bar Association opined that: “A lawyer may not enter into a financing agreement with a litigation funder, a non-lawyer, under which the lawyer’s future payments to the funder are contingent on the lawyer’s receipt of legal fees or on the amount of legal fees received in one or more specific matters.” Distinguishing from arrangements in which …
While Enforcing Arbitration Provision, U.S. District Court in California Sanctions Defendant
Plaintiff Kate McLellan sued Fitbit for alleged misrepresentations about the accuracy of heart rate monitoring in its devices. Fitbit told the Court that the Terms of Service McLellan had agreed to required arbitration of her claims at the American Arbitration Association (AAA). Fitbit also said that McLellan’s objections to the scope and enforceability of the agreement were delegated to the …
U.S. District Court in Illinois Allows Suit Against Professional Objectors to Proceed
In a suit brought by class action attorney Jay Edelson against professional objectors Darrell Palmer and Chris Bandas, the court dismissed the RICO and abuse of process claims, but allowed the claims based on unauthorized practice of law to proceed. “Bandas does not contest Plaintiff’s categorization of his and Palmer’s activities in the Gannett litigation as constituting the ‘practice of …
U.S. District Court in New Jersey Precludes Trial Counsel from Responding to Juror who Reached Out to Explain what Happened During Deliberations
Following a jury verdict in favor of plaintiffs in an employment discrimination case, one of the defense counsel received the following message through the firm’s website: “Hello, This message is for Mr. Carmagnola and not for legal advice. As a member of the jury for the Montone vs. Jersey City case, I was wondering if you’d like to know a …
U.S. Fifth Circuit Affirms Dismissal of Imprudence Claims
A putative class of participants in and beneficiaries of the Idearc Retirement Plan brought claims for breach of loylaty and imprudence in the management and administration of the plan – a “defined contribution” or “individual account” plan, allowing participants to contribute to the plan and invest their contributions in a variety of pre-selected investment options, including Idearc stock. The plaintiffs …
U.S. Fifth Circuit Reverses Denial of Life Insurance Benefits where Plan Administrator Fails to Address Beneficiary’s Expert Report
Esther White was the beneficiary of her husband’s life insurance policies governed by ERISA, which contained exclusions where death is caused, at least in part, by “intoxication” as defined by Arkansas law, or by the “voluntary ingestion” of any “narcotic” or “drug” that is not prescribed by a physician. Coverage was denied by the Plan Administrator, and summary judgment was …
U.S. Fifth Circuit Allows Hospital to Pursue Assigned Claims for Benefits Against Blue Cross
Innova Hospital of San Antonio sued multiple insurance companies and third-party plan administrators in Texas State Court as an assignee of the insurance benefits owed to the patients treated at its facility alleging that the defendants either failed to pay or reduced payment substantially. The action was removed under ERISA. The District Court dismissed the hospital’s claims, but the Fifth …
U.S. Supreme Court Limits Application of American Pipe in Successive Class Actions
The Securities Exchange Act of 1934 has both a two-year statute of limitations and a five-year statute of repose. With respect to complaints that China Agritech engaged in fraud and misleading business practices causing the company’s stock price to plummet when the misconduct came to light, the accrual date for purposes of the two-year limitation period was February 3, 2011, …
U.S. Supreme Court Denies Cert from Colorado Supreme Court “Stream of Commerce” Decision
A Colorado resident purchased a replacement main rotor holder for his radio-controlled helicopter from a retailer in Colorado. The main rotor holder was manufactured by Align Corporation, a Taiwanese company, and distributed by Horizon, a Delaware-based corporation. Align has no physical presence in the United States, but it contracts with U.S.-based distributors to sell its products to retailers who, in …