U.S. Fifth Circuit, En Banc, Reverses Pierre, and Holds that Review for Factual Determinations is De Novo Where Plan Does Not Afford Administrator Discretion

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  “When an ERISA plan lawfully delegates discretionary authority to the plan administrator, a court reviewing the denial of a claim is limited to assessing whether the administrator abused that discretion. For plans that do not have valid delegation clauses, the Supreme Court has held that a denial of benefits challenged under §1132(a)(1)(B) is to be reviewed under a de …

U.S. Third Circuit Addresses Preemption in the Context of a Product that is Made Up of Some, But Not All, Class III Components; Allows Personal Jurisdiction Discovery to Go Forward on Alter Ego Theory

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This case presents an issue of first impression among the Courts of Appeals: How courts should apply the express preemption provision under the Federal Food Drug & Cosmetic Act to State Law tort claims challenging the design and manufacture of a medical device comprised of multiple components, some of which are from ‘Class III’ medical devices subject to Federal requirements, …

On Mandamus, U.S. Fifth Circuit Reverses Attempt to Expand Privilege Waiver

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The plaintiff, Itron, acquired a company called SmartSynch, unknowingly assuming a $60 million contractual obligation to a third company, Consert. After years of litigation, Itron settled with Consert for $18 million, and now sues SmartSynch defendants for negligent misrepresentation, seeking the cost of the Consert litigation and settlement.   The Complaint never specifically pleads reliance on any legal advice, nor does …

Louisiana Supreme Court Emphasizes that Daubert Only Applies to Methodology, and Not to the Expert’s Conclusions Themselves, Nor Issues of Credibility; in Proving Causation, either a Qualitative or Quantitative Assessment will Suffice

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Defendant, Fon’s Pest Management, spot treated the plaintiffs’ home for termites using a termiticide containing fipronil, an odorless and colorless neurotoxin that has been widely used since 1996. Following the treatments, the plaintiffs allegedly experienced headaches, nausea, dizziness, and confusion, and subsequently filed suit.  In support of their action, the Freemans retained several experts, including two medical toxicologists, a PhD …

U.S. Fifth Circuit Affirms Dismissal of Breach of Fiduciary Duty Claims in Connection with Radio Shack Bankruptcy

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The RadioShack 401(k) Plan allowed participants to invest their deferred salary or company match contributions in over twenty investment options. The Plan had an Employee Stock Ownership Plan (ESOP) that allowed participants to invest their retirement savings in RadioShack stock, which was held in the RadioShack Stock Fund. Plan documents required that RadioShack be offered as an investment option. If …

U.S. Ninth Circuit Vacates Nationwide Settlement Class Based on Variations in State Law

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A nationwide class action settlement arising out of misstatements by Hyundai and Kia regarding fuel efficiency was vacated by the U.S. Ninth Circuit Court of Appeals on the basis that the District Court was required to apply a choice-of-law analysis and consider whether variations in State Law destroyed predominance under Rule 23(b)(3) – noting, with respect to remand, that the Court …

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 …