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 …

U.S. Fifth Circuit Affirms Judgment of Dismissal under LPLA, Rejecting Res Ipsa and Claims of “Misconduct” by Defense

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The plaintiff, Mr. Lyles, underwent anterior corpectomy and discectomy surgery, in which a “Verte-Stack” vertebral body replacement device was implanted in Lyles’s cervical spine, along with Progenix, a putty-like bone graft material that was mixed with bone dust.  In addition, an Atlantis Translations Anterior Cervical Plate System was used to stabilize the Verte-Stack and to promote fusion. Some time after …

Magistrate Judge Compels Production from Additional Custodians in Absence of Even an Estimate of the Alleged “Burden”

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Plaintiffs sought to discovery e-mails from the Mayor of Chicago and ten additional custodians in related wrongful arrest cases.  The City agreed to search the e-mail files of two custodians, while objecting to the others as unduly burdensome.  Granting the motion to compel, in pertinent part, the court ordered the City to search and produce responsive materials from the Mayor …

Southern District of New York Certifies (b)(1) Class Claims under ERISA for Mismanagement of 401(k) Plan

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“Defendants object to class certification under Rule 23(b)(1) as improper in the wake of the Supreme Court’s decisions in LaRue and Wal-Mart. Although courts are split over whether Rule 23(b)(1)(B) remains an appropriate class vehicle for fiduciary-breach claims under ERISA, a majority have held that it is…. “Defendants argue that, because the Supreme Court in LaRue held that §1132(a)(2) allows …

District Court in Colorado Orders GM to Produce FEM Data in Roof Crush Case

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Pertile, a front seat passenger, was badly injured in a rollover. GM’s expert, Ms. Lu, issued a report which states that the roof structure was evaluated in tests that subjected the design to various collision speeds, impact directions and loading directions, and opined, in part based upon her “review of the technical reports and engineering documents” that the 2011 Chevrolet …