Attorneys Sanctioned by Texas State Court for Collusive Settlement involving Minors Competing for Limited Insurance Coverage

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The victim of a trucking accident was survived by two different sets of children with two different mothers.  Each instituted a separate wrongful death action, which were consolidated, on motion of the defendant, in Webb County.  The defendant’s insurer was willing to settle for policy limits, and initally proposed mediation or arbitration to apportion the insurance proceeds between and among …

Supreme Court of Massachusetts Holds that a Brand Manufacturer Can Be Liable for Failure to Warn Doctors and Patients Injured by Generic Forms of the Drug, where the Conduct is Not Merely Negligent, but Reckless

In What's New in Product Liability Law?, What's New in the Courts by gravierhouseLeave a Comment

“Where failure to warn claims are brought by consumers of a manufacturer’s own product, the risk of injury can be insured by the manufacturer and distributed among the public as a cost of doing business…. But if consumers of generic drugs were allowed to recover damages for a brand-name manufacturer’s negligent failure to warn, it would be far more difficult …

U.S. Fifth Circuit Strikes Down the Obama Administration’s “Fiduciary Rule”

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

The U.S. Chamber and two other business groups filed suit in the Northern District of Texas, challenging the “Fiduciary Rule” – a package of seven different DOL Regulations that broadly re-interpret the term “investment advice fiduciary” and re-define exemptions that relate to fiduciaries from ERISA and the Internal Revenue Code.  On appeal, the U.S. Fifth Circuit struck down the Rule. …

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

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

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 …

Alaska Bar Provides Guidance to Lawyers Sending or Responding to E-Mails in Which Clients are cc:d or bcc:d

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The Alaska Bar Association recently issued an opinion to address two questions: (i) Under what circumstances, if any, may a lawyer “cc” or “bcc” the lawyer’s client in e-mail correspondence with opposing counsel? and (ii) What are the ethical responsibilities of opposing counsel in responding to an e-mail where the e-mail includes a “cc” to opposing counsel’s client? First, the …