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 …

Connecticut Supreme Court Modifies Consumer Expectation Test under 402A, Rejects Affirmative Requirement for Alternative Feasible Design under Third Restatement

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In certified question arising from wrongful death action brought in Federal Court by survivors of former smoker, Philip Morris urged the Connecticut Supreme Court to adopt the Third Restatement, which “imposes two requirements that are not mandated under our [Second Restatement] § 402A tests: (1) proof that the harm was foreseeable; and (2) proof that a reasonable alternative design existed …

Plaintiff’s Social Media History is Discoverable, but with Limitations

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Defendant in a personal injury case sought the plaintiff’s social media history.  While the plaintiff technically waived her objections to the discovery requests by failing to serve them within thirty days, Magistrate Judge Erin Wilder-Doomes, sitting in the Middle District of Louisiana, nevertheless limited them as overbroad: “As Defendant points out, social media is generally discoverable. However, a request for …

U.S. Fifth Circuit Affirms Sanction of Attorneys Who Withheld Material Evidence from Rule 26 Disclosures

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The plaintiff in the underlying lawsuit claimed she was sexually assaulted on multiple occasions while incarcerated at the Maverick County Detention Center, operated by the defendant, GEO Group.  During the plaintiff’s deposition, she was confronted with recordings of telephone calls which had not be identified or produced as part of the initial disclosures under Rule 26.  The plaintiff filed a …

Seventh Circuit Says Wife’s Unauthorized Access to Husband’s E-Mails Could Violate Federal Wiretap Act

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A husband embroiled in an acrimonious divorce brought suit against his wife claiming a violation of the Electronic Surveillance Act by surreptitiously placing an auto-forwarding “rule” on his e-mail accounts that automatically forwarded the messages on his e-mail to her. He also alleges that the wife’s divorce attorney violated the Act by “disclosing” the intercepted emails in response to his …

Covington & Burling Admonished for Representing Non-Party Witnesses in Depositions

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The defendant, Jacobs, hired Covington & Burling to devlop factual information and defenses relating to Jacobs’ work for the Tennessee Valley Authority.  Among other things, Covington helped identify non-party witnesses who might have factual information regarding the TVA-Jacobs contract.  Covington worked with the witnesses to prepare and submit declarations in support of Jacobs’ Motion to Dismiss, asserting derivative sovereign immunity …