Ninth Circuit holds that website intake from potential clients is not subject to disclosure.

In Legal Ethics & Professionalism, What's New in Class Action Law?, What's New in Product Liability Law?, What's New in the Courts by gravierhouseLeave a Comment

Granting a mandamus in an action where attorneys were compelled to turn over initial responses by clients on the Internet in suit against the makers of Paxil, the court re-affirmed the principle that the attorney-client privilege extends to initial consultations, even where the attorney and client acknowledge that no formal attorney-client relationship has been established. “Potential clients must be able …

High Court rejects preemption of state law tort claims under FIFRA.

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Peanut farmers brought claims against Dow alleging that its Strongarm pesticide stunted the growth of their peanut plants, despite the EPA-approved label which originally advertised that “Use of Strongarm is recommended in all places where peanuts are grown.” Apparently, after the plaintiffs first complained, Dow investigated, the label was subsequently changed (with approval by the EPA) to advise purchasers not …

U.S. Fifth Circuit reverses verdict under the LPLA where plaintiff failed to prove – by direct evidence, with direct and specific expert testimony – that his injuries would have been more severe had the defendant’s airbag deployed in collision.

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Driver whose head hit steering wheel during collision successfully established breach of express warranty under the LPLA. The court, however, reversed the jury award on the basis that plaintiff failed to satisfy the “proximate causation” requirement that “he sustained more severe injuries than he would have received if the air bag had deployed.” Curiously, the Court found expert testimony that …

Third Circuit rejects Milofsky and concludes that participants in 401(k) plan who suffered losses may bring suit under Section 502(a)(2).

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Participants in the Schering-Plough Corporation 401(k) Plan brought suit against fiduciaries on behalf of the Savings Plan and all participants whose accounts included investments in Schering stock, (alleging that the defendants breached their fiduciary duties of loyalty, prudence and due care by continuing to offer the Company Stock Fund when they knew that Schering’s stock price was artificially inflated). The …

District Court allows suit for breach of fiduciary duty brought by plan participant against plan’s PBM to proceed.

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Robert Moeckel, a participant in the John Morrell & Co. Employee Benefit Plan, brought suit for breach of fiduciary duty against Caremark, the plan’s Pharmacy Benefits Manager (“PBM”). The suit seeks statutory relief on behalf of the Plan, pursuant to Section 502(a)(2), as well as injunctive and equitable relief for the Plan and its participants who paid percentage co-payments, pursuant …

Equitable set-off of attorneys fees against pension benefits of participant asserting unsuccessful claim under ERISA Section 502(a)(1).

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Plaintiff brought a claim for an increase in his disability benefits. The claim was denied, and attorneys fees were assessed against the plaintiff. In addition, the court granted an equitable set-off against future benefits to ensure payment of the attorneys’ fees. The Third Circuit reversed. “While it may be argued that plan participants, like Martorana, who bring suits which are …

The Ninth Circuit holds that failure to comply with the time limitations imposed by 29 C.F.R. 2560.503-1(h) does not require de novo review; technical violations of the Act do not alter the standard of review unless they result in substantive harm.

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In 2002, (opinion withdrawn and superceded in 2003), the Ninth Circuit, in Jebian v. Hewlett-Packard, held that the plan administrator’s failure to decide an appeal within 120 days justified de novo review – where the Plan provides for the 120-day period found in the regulations. On May 31, 2005, the Court refused to apply the holding where the participant or beneficiary relies …

Eighth Circuit reverses Silzone Heart Valve certification.

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The Minnesota District Court certified a medical monitoring class under (b)(2) and a national class of consumer claims under the Minnesota Consumer Protection Statutes under (b)(3). The Eighth Circuit found that the medical monitoring claims lacked coherence and could not be certified. With respect to the consumer claims, the Court did not preclude the possibility of certification, but reversed and …

Third Circuit draws line on “piggy-backing”.

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The U.S. Third Circuit held that American Pipe would toll the filing of successive class actions if the deficiency in the original class is based on deficiencies in the class representative, as opposed to a finding that the claims were not suitable for class treatment. Yang v. Odom, 392 F.3d 97 (3d Cir. 2004), cert. denied, 125 S.Ct. 2294 (2005).

Second Circuit rejects (b)(1) certification under “limited punishment” theory absent a fund with a “definitely ascertained limit” as required under Ortiz.

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Judge Weinstein previously certified a mandatory no-opt-out class under Rule 23(b)(1) for all smokers with respect to claims for punitive damages. The certification was based on a “limited punishment” theory, under which “the limited fund involved would be the constitutional cap on punitive damages, set forth in BMW v. Gore and related cases.” While the Second Circuit acknowledged the possibility of …