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

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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 …

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 …

U.S. Fifth Circuit Affirms Dismissal of Claim for Disability Benefits where Loss of Eye from Fungal Infection not “Accident” under Plan

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The plaintiff traveled to West Texas twice in connection with his job, and developed a fungal infection in his right eye that was diagnosed as coccidioidomycosis. Medical providers determined that contact with a West Texas fungus caused the infection, which led to progressive loss of vision, and the ultimate removal of that eye. Disability benefits were denied based on the …