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
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 LPLA
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
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 …
Duties Owed by Appointed Counsel to MDL Litigants Whom They Do Not Formally Represent
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
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 …
U.S. Fifth Circuit Reverses Policy 495
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
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 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)
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 …