Alaska Bar Association Prohibits Use of “Web Bugs”

In Legal Ethics & Professionalism, What's New in the Courts by gravierhouse1 Comment

A “web bug” is a technology tool that tracks certain information about the document to which it is attached.  They can be used in e-mail newsletters to help track readers, for example, but can also be used in e-mails to “invisibly” track, among other things: when the email was opened; how long the email was reviewed (including whether it was …

Tennessee Formal Ethics Opinion Precludes Settlements That Require Attorney to Return His or Her Work Product

In Legal Ethics & Professionalism, What's New in the Courts by gravierhouseLeave a Comment

The Tennessee Board of Professional Responsibility issued a formal Ethics Opinion concluding that a settlement provisions requiring attorneys to turn over documents protected by attorney work product may be prohibited by Rule 5.6(b). Specifically, a lawyer may not propose or agree to a settlement agreement that requires a lawyer to turn over any work product materials as part of the …

U.S. Fifth Circuit Sanctions Defendant Who Contests Liability and Presents Purported Experts in Bad Faith

In Legal Ethics & Professionalism, What's New in the Courts by gravierhouseLeave a Comment

“The general rule in federal court, the so-called ‘American Rule,’ is that litigants are responsible for their own fees. Federal courts, however, possess ‘inherent power’ to assess fees as sanctions when the losing party has acted in bad faith, vexatiously, wantonly, or for oppressive reasons. Under this test, sanctions are warranted when a party knowingly or recklessly raises an objectively …

Fifth Circuit Throws Out ERISA Suit against BP over 2010 Spill

In What's New in ERISA Litigation?, What's New in the Courts by gravierhouseLeave a Comment

On interlocutory appeal, the U.S. Fifth Circuit Court of Appeals reversed the denial of BP’s Rule 12 Motion to Dismiss the Amended Complaint of BP pension plan stockholders for breach of fiduciary duty. “In Fifth Third, the Supreme Court stated that the plaintiff’s proposed alternative must be one that ‘a prudent fiduciary in the same circumstances would not have viewed …

Eastern District of North Carolina Certifies Class and Grants Summary Judgment under ERISA on Unpaid Contributions

In What's New in Class Action Law?, What's New in ERISA Litigation?, What's New in the Courts by gravierhouseLeave a Comment

Participants filed a putative class action against Trojan Horse and Glen Burnie Hauling for failing to make deposits into their defined contribution 401(k) plan, despite having continued to make such deductions and withholdings from plaintiffs’ wages.  The plaintiffs also joined Ascensus Trust, and sought summary judgment on fiduciary status and breach. The Court found that “the unpaid Plan contributions are …

Louisiana Fourth Circuit Reverses Summary Judgment on Intentional Spoliation Claim

In What's New in E-Discovery and Spoliation?, What's New in the Courts by gravierhouseLeave a Comment

In summary: “The trial court found Ms. Fiveash failed to present any evidence to establish that Defendants intentionally destroyed evidence with the purpose of depriving her of its use at trial. Louisiana jurisprudence has held summary judgment based on subjective facts like intent is rarely appropriate. The trial court incorrectly relied on self-serving and conclusory affidavits that Defendants offered in …

Attorney Can Be Sued for Copyright Infringement When Using Substantial Portions of Another’s Brief

In Legal Ethics & Professionalism, What's New in the Courts by gravierhouseLeave a Comment

A lawyer copied “substantial portions” of a brief drafted by a co-defendant in a patent case, who was “the owner of a valid and registered copyright” for its brief.  Judge Hatter, sitting in the Central District of California, rejected the defendant’s claim of “fair use”. First, the defendant “did not add new expression, meaning or message to Newegg’s draft brief. …

Northern District of Illinois Certifies FDCPA Claims, Rejecting Challenges based on Ascertainability and Article III

In What's New in Class Action Law?, What's New in the Courts by gravierhouseLeave a Comment

A debt collector’s “attempt to impose percentage-based collection costs or fees absent a prior express agreement violates the FDCPA, unless such costs are allowed by applicable state law…. NRA contends that the proposed class is not ascertainable because ‘to the extent liability, if any, turns on whether or not the “costs” charged to each putative class member were expressly authorized …

Magistrate Judge in the Middle District of Louisiana Discusses Limitations on Discovery of Social Media

In What's New in E-Discovery and Spoliation?, What's New in the Courts by gravierhouseLeave a Comment

“Movants are seeking relevant information posted on social media directly pertaining to Plaintiff’s claims in the Petition. Such social media is generally discoverable…. “The issue here is whether Plaintiff shared relevant information to the claims and defenses in this action with third parties. Regardless of whether Plaintiff emplaced privacy settings on her social media postings, these postings were freely shared …

U.S. District Court in Hawaii Finds Formal Trial Plan Unnecessary in Absence of Individualized Proof Problems

In What's New in Class Action Law?, What's New in the Courts by gravierhouseLeave a Comment

A class action was brought against Lloyds Bank regarding the issuance of certain dual currency, or International Mortgage System (“IMS”), loans.  The U.S. District Court in Hawaii certified a class, and the U.S. Ninth Circuit denying Lloyds’ Rule 23(f) petition. Lloyds then filed a Motion to Compel Trial Plan “illustrating the expected course of proceedings at trial and showing that …