Legal News

Case Summaries

Admiralty

[08/06] Southwest Marine, Inc. v. US
Fees incurred by plaintiff-shipyard operator during its unsuccessful defense of a private party Clean Water Act lawsuit are not allowable costs under Subpart 31.2 of the Federal Acquisition Regulation (FAR), 48 C.F.R. sections 31.201-31.205.

[08/04] Aguilera v. Alaska Juris F/V
In the context of general maritime law and injured seamen, the circuit court rules that maintenance and cure payments are subject to withholding for child support obligations, so long as those payments constitute income under relevant state law.

[07/25] Bd. of Comm'rs of the Orleans Levee Dist. v. M/V Belle of Orleans
In an admiralty action seeking to enforce a maritime lien raising contract and tort claims involving a paddlewheeler vessel that broke loose from its moorings during Hurricane Katrina, dismissal for lack of admiralty jurisdiction and denial of defendant's Rule 59(e) motion to alter, amend, or vacate are affirmed and reversed in part where: 1) the paddlewheeler was a "vessel" for purposes of establishing admiralty jurisdiction; 2) the district court improperly determined that it lacked admiralty jurisdiction over a tort claim; 3) the district court improperly refused to issue a writ of attachment under Rule B of the Supplemental Rules; and 4) a contract claim was properly dismissed for lack of admiralty jurisdiction because the lease at issue, while partially maritime in nature, was not a maritime contract for purposes of creating a maritime lien.

[07/23] Northwest Envtl. Advocates v. US Envtl. Prot. Agency
In an action challenging a regulation originally promulgated by the EPA in 1973 exempting certain marine discharges from the permitting scheme of sections 301(a) and 402 of the Clean Water Act (CWA), a decision vacating the regulation is affirmed where: 1) the district court had subject matter jurisdiction over the suit; 2) the EPA acted ultra vires in promulgating the regulation and its denial of plaintiffs' 1999 petition requesting a repeal of the regulation was not in accordance with law; and 3) the remedial order was a proper exercise of the district court's discretion.

[07/16] Turbomeca, S.A. v. Era Helicopters LLC
In a suit for economic loss arising out of the loss of a helicopter due to engine trouble, dismissal of tort claims alleging post-sale failure to warn of a pre-sale product defect is affirmed where: 1) the circuit court refuses to recognize an exception to the East River doctrine for post-sale negligent failure to warn claims; and 2) purchaser is restricted to a warranty or contract cause of action under maritime law.

[07/15] Kirksey v. Tonghai Maritime
In a negligence action brought under 33 U.S.C. section 905(b), judgment for plaintiff is reversed, the case remanded, and judgment rendered for defendants where: 1) a defect in the cargo stow was open and obvious to plaintiff; and 2) defendants did not have a turnover duty to warn or to furnish a reasonably safe ship against an obvious defect or unsafe condition.

[07/10] AGA Fishing Group, Ltd. v. Brown & Brown, Inc.
In a suit alleging that defendant owed a duty to recommend an adequate level of protection and indemnity coverage, summary judgment for defendants on all claims is affirmed where plaintiff did not show the existence of special circumstances that created a duty of care.

[06/25] Exxon Shipping Co. v. Baker
In an action brought against Exxon for economic losses resulting from the Exxon Valdez oil spill, a circuit court ruling remitting the punitive damages award to $2.5 billion is vacated and remanded for further reduction where: 1) the Court was equally divided on the question of whether a shipowner may be liable for punitive damages without acquiescence in the actions causing harm, and thus the circuit court's opinion is undisturbed on the issue; 2) federal statutory law does not bar a punitive award on top of damages for economic loss; but 3) the award in this case should be limited to an amount equal to compensatory damages, or approximately $500 million.

[05/22] McLaurin v. Noble Drilling (US) Inc.
In a negligence action, summary judgment for defendant is reversed and remanded where: 1) a claim under section 905(b) of the Longshore and Harbor Workers' Compensation Act (LHWCA) for vessel negligence is not cognizable since plaintiff was not injured "on navigable waters;" and 2) section 933 of the LHWCA preserves a maritime worker's ability to pursue separate claims against third parties including vessel owners allegedly responsible for the injury.

[05/13] Price v. Connolly-Pac. Co.
In an action brought by a "commuter seaman" claiming entitlement to "maintenance and cure" from his employer under maritime laws after he allegedly contracted West Nile encephalitis while working on a ship, judgment for employer is affirmed over claims that: 1) under the Shipowner's Liability Convention of 1936, a seaman only needs to prove that an illness incurred, aggravated or manifested itself during the period of employment instead of while in the service of a vessel; and 2) even if a commuter seaman is not on call or engaged in an activity generally considered in the service of a vessel, maintenance and cure is required if an illness is contracted while the seaman is participating in an on-shore activity which benefits the employer.

[05/08] Royal Ins. Co. of Am. v. Orient Overseas Container Line Ltd.
In an action brought by Ford and its cargo insurer against defendant-ocean carrier for damages arising from the loss of cargo during a transatlantic voyage, partial summary judgment for defendant and third-party defendants is reversed where the district court erroneously interpreted the bill of lading to apply Carriage of Goods by Sea Act (COGSA) instead of the Hague-Visby Rules, and additional briefing and fact-finding may be required before the liability limitation may be appropriately applied. (Amended opinion)

[04/24] US v. Shi
A foreign national who forcibly seizes control of a foreign vessel in international waters may be subject to the jurisdiction of the U.S. when such vessel is intercepted by federal authorities. Foreign national's conviction and sentence for seizing control over a ship by force, and performing an act of violence likely to endanger the safety of the ship, is affirmed over challenges regarding: 1) the district court's jurisdiction; 2) the sufficiency of the indictment; 3) the admissibility of a statement to an agent; 4) the admissibility of letters seized from defendant's bunk; and 5) the constitutionality of his sentence.

[04/22] Great Lakes Exploration Group, LLC v. Unidentified Wrecked & Abandoned Sailing Vessel
In an in rem admiralty action brought by a private underwater exploration and salvage company seeking an arrest warrant for an ancient sailing vessel that sank in Lake Michigan in the 1600's, the circuit court rules that a district court may require a salvor to reveal the precise location of a shipwreck at the pleading stage where: 1) there is a need for the precise location because, for example, the embedded status of the shipwreck under the Abandoned Shipwreck Act (ASA) is in dispute; 2) the requested information is available and in the salvor's possession; and 3) the district court has taken sufficient steps to secure federal jurisdiction over the claim and, when warranted, to protect the information from public disclosure.

[04/21] In re: Aramark Leisure Servs. v. Kendrick
In a special proceeding under the Limitation of Vessel Owner's Liability Act arising from a boating accident, and involving coverage for the accident, a judgment finding that plaintiff-vessel owner's insurer was required to provide primary coverage to the vessel operator is reversed and remanded where: 1) there was federal subject matter jurisdiction over the matter; and 2) the district court erred in holding the insurer liable to the operator, as the insurer had a valid escape clause and the operator has no claim against it that he is required to exhaust under Utah Code Ann. section 31A-28-213(1)(a).

[04/10] US v. Vilches-Navarrete
Conviction and sentence for cocaine possession in violation of Maritime Drug Law Enforcement Act ("MDLEA") and conspiracy to distribute cocaine is affirmed over defendant's claims that: 1) the MDLEA is unconstitutional; 2) the district court lacked jurisdiction; 3) the district court erroneously refused to suppress evidence; 4) there was insufficient evidence to sustain his conviction; and 5) his sentence was unreasonable under Booker; and 6) cumulative errors in the case prejudiced his right to a fair trial.

[04/02] The Rice Co. (Suisse), S.A. v. Precious Flowers Ltd.
In an action brought by a rice shipper against defendants arising from damages sustained by rice cargo, denial of defendants' motion to compel arbitration in New York is affirmed where: 1) the parties to instruments at issue unambiguously structured their relationship such that defendant-vessel owner was not a party to the voyage charter containing the arbitration clause; 2) the district court did not err in holding that the bill of lading did not bind the vessel owner to the voyage charter's mandatory arbitration clause; and 3) the circuit court rejects a claim that if a bill of lading contains any arbitration clause, the in rem vessel and the in personam representative of the vessel must be compelled to arbitrate.

[04/01] Porina v. Marward Shipping Co., Ltd.
In a tort action against a ship owner for a collision allegedly caused by its negligent operations, dismissal of the complaint for lack of personal jurisdiction is affirmed where: 1) the owner of a vessel may not constitutionally be subjected to personal jurisdiction with respect to an unrelated suit merely because, as the owner may have expected, the vessel has repeatedly visited the forum's ports at the sole direction of its charterers; and 2) defendant's contacts with the United States did not satisfy the heightened minimum contacts requirement for general jurisdiction over a non-resident.

[03/27] In Re City of New York
In a tort action arising out of a ferry crash into a maintenance pier, a bench trial judgment which found the city negligent and denied limitations of liability is affirmed where the city did not act with reasonable care when it allowed a single pilot to operate the Staten Island Ferry without at least one other person in or near the pilothouse, aware of the navigational circumstances, and ready to render or summon assistance in the event of an emergency.

[03/20] New Hampshire Ins. Co. v. C'Est Moi, Inc.
In an action to rescind an insurance policy arising after defendant-insured's yacht sank, summary judgment for the insurer is affirmed where: 1) the parties didn't attempt to contract out of uberrimae fidei, or the federal maritime doctrine imposing a duty of utmost good faith in the context of marine insurance contracts; 2) the insured misrepresented material facts in an insurance policy application; and 3) thus, insurer was entitled to rescind the policy.

[03/17] US v. Approximately 64,695 Pounds of Shark Fins
In a case arising from a civil complaint brought by the government for the forfeiture under the Shark Finning Prohibition Act of 64,695 pounds of shark fins owned by claimant and found on board a U.S. vessel, a judgment of forfeiture is reversed and remanded where neither the statute nor regulations provided fair notice to claimant that the vessel, which purchased the fins at sea from other vessels, would be considered a fishing vessel under 16 U.S.C. section 1802(18)(B).

[03/11] Trans-Tec Asia v. M/V Harmony Container
A foreign supplier, by supplying fuel to a foreign-flagged vessel in a foreign port under an agreement that U.S. law applied to the transaction, may obtain a maritime lien under the Federal Maritime Lien Act, 46 U.S.C. section 31301 et seq. (FMLA), on the vessel docked in an American port.

[03/07] Day v. James Marine, Inc.
A ruling finding that a portion of the attorney's fees petitioner incurred in seeking workers' compensation did not shift to his employer under the Longshore and Harbor Workers' Compensation Act is affirmed in part and reversed in part where: 1) the Act does not allow an employee to collect attorney's fees incurred before the employer has rejected the employee's claim; but 2) the Act does allow, and indeed requires, fee shifting from the time the employer rejects the employee's claim through the employee's successful prosecution of that claim.

[03/06] Norwegian Bulk Transport A/S v. Int'l Marine Terminals P'ship
In an action brought for breach of a maritime contract and tort, a judgment dismissing plaintiff's complaint is affirmed for the reasons given by the district court in its Order and Reasons, which are adopted by the circuit court.

[03/03] In re M/V DG Harmony
In case involving liability for the explosion and resulting constructive total loss of the container ship the M/V DG Harmony, district court's finding that defendant PPG, which manufactured and shipped approximately 160,000 kilograms of calcium hypochlorite, was solely responsible for the explosion and loss, is reversed in part as to holdings that PPG was strictly liable under section 4(6) of the Carriage of Goods by Sea Act, and that it was liable under a general negligence theory. The judgment is vacated as the district court failed to address whether a warning, if given, would have prevented the harm.

[02/27] Pac. Merchant Shipping Ass'n v. Goldstene
In an action brought to enjoin the enforcement of state regulations limiting emissions from the auxiliary diesel engines of ocean-going vessels within twenty-four miles of California's coast, an injunction against the rules' enforcement is affirmed and reimposed as the Clean Air Act section 209(e)(2) preempts the Marine Vessel Rules and requires California to obtain EPA authorization prior to enforcement because the Rules are "emissions standards" that require that engines "not emit more than a certain amount of a given pollutant."

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Class Actions

[08/19] Fellner v. Tri-Union Seafoods, L.L.C.
In a class-action suit alleging injury caused by methylmercury and other harmful compounds in defendant's canned tuna products, grant of a motion to dismiss is reversed and remanded where: 1) the FDA had not enacted a pervasive regulatory scheme regarding mercury in tuna that would preempt plaintiff's state-law claims; 2) the FDA's decision not to require warning labels on tuna was not a conclusive determination preempting a state failure-to-warn claim; and 3) the FDA had not expressly rejected mercury warnings as misbranding under federal law.

[08/19] In Re: Nortel Networks Corp. Securities Litig.
In a matter involving attorneys' fees following settlement of a private securities class action, judgment awarding 3% of the class's recovery to class counsel rather than the requested 8.5% is affirmed where: 1) appellant has waived its argument that the Private Securities Litigation Reform Act altered the fee-award scheme for cases covered by the Act by failing to present this argument to the district court; and 2) the district court did not abuse its discretion in awarding a reasonable fee under established precedent.

[08/14] Abner v. Kansas City S. Ry. Co.
In employees' race discrimination suit, award of plaintiffs' attorney's fees and costs for an initial trial which ended in a hung jury is affirmed where a court may award reasonable fees, including those incurred in a first, inconclusive trial, and in doing so may: 1) cut out fees charged for work on unsuccessful claims and any other unreasonable work; and 2) look to the ultimate result of the case, especially as to the significant issues litigated, and the overall relief obtained.

[08/14] Gene & Gene LLC v. Biopay LLC
Order certifying a class of plaintiffs who alleged violations of the Telephone Consumer Protection Act (TCPA), 47 U.S.C. section 227, specifically unsolicited advertisements sent from one fax machine to another, is reversed where: 1) there was subject-matter jurisdiction over the case under the Class Action Fairness Act; and 2) plaintiffs had failed to advance any viable theory employing generalized, class-wide proof concerning the issue of lack of consent.

[08/14] Alch v. Time Warner Entertainment Co.
In a class action suit against studios, networks, production companies, and talent agencies asserting an industry-wide pattern and practice of age discrimination, writ petition by television writers to allow access to certain data on Writers Guild members is granted where trial court acted beyond its discretion when it sustained all objections of third parties to the disclosure of subpoenaed information on privacy grounds.

[08/12] Saunders v. Farmers Ins. Exch.
In purported class actions on behalf of persons living in a "single, contiguous black community in Kansas City" claiming, inter alia, that defendant-insurance companies violated the Fair Housing Act, and federal civil rights laws by charging higher rates to homeowners in such community than those charged to homeowners in white communities, dismissal of plaintiffs' claims is affirmed where the theory of liability asserted and the relief sought by plaintiffs would impair state law by interfering with Missouri's comprehensive administrative regime, and thus the claims are barred by the McCarran-Ferguson Act.

[08/08] Renteria-Marin v. Ag-Mart Produce, Inc.
In a class action brought by plaintiff migrant farm workers under Migrant and Seasonal Agricultural Worker Protection Act (AWPA), ruling in favor of plaintiffs is reversed in part and affirmed in part where: 1) the district court erred in its determination that defendant grape tomato producer "controlled" the housing within the meaning of the AWPA; and 2) defendant "provided" housing to plaintiffs such that it could be held liable for failing to post required housing information. Action is remanded for determination of proper damage award based on defendant's violation.

[08/07] Peck v. Cingular Wireless, LLC
In a class action lawsuit brought by a former employee against Cingular claiming, inter alia, it violated state law by passing a business and occupation tax (B&O tax) on to consumers in the form of a line item charge, dismissal of the suit is vacated where, contrary to the ruling below, there was no federal preemption of plaintiff's state law claims.

[08/07] Chin v. Chrysler LLC
In a products-liability action claiming defects in braking systems in defendant's cars, an order awarding attorney's fees under California law is reversed where: 1) no substantive provision of California law had ever been pled, nor had any underlying California cause of action ever been found violated; and 2) the district court was bound to apply New Jersey's attorney's fees rule.

[08/07] New Jersey Carpenters Pension & Annuity Funds v. Biogen IDEC, Inc.
In a federal securities class action matter alleging defendant drug company and senior executives intentionally misrepresented the safety of and the market for new drug for multiple sclerosis by omission and commission, dismissal of complaint is affirmed where the complaint failed to meet adequately the pleading requirements for scienter established in the Private Securities Litigation Reform Act of 1995 ("PSLRA").

[08/06] Zessar v. Keith
In a class-action suit alleging due-process violations in the rejection of absentee ballots without notice or a hearing, partial summary judgment for plaintiff and award of attorney's fees are vacated where: 1) the state legislature's subsequent amendment of the election code to change the procedure for handling absentee ballots mooted plaintiff's challenge; and 2) plaintiff did not qualify as a "prevailing party" entitled to attorney's fees under 42 U.S.C. section 1988.

[08/05] Hunt v. U.S. Tobacco Co.
In a putative class-action suit alleging deceptive conduct by producers of smokeless tobacco products under the Pennsylvania Uniform Trade Practices and Consumer Protection Law, denial of motion to dismiss is vacated and remanded where a complaint alleging deceptive conduct must allege that plaintiff justifiably relied on defendant's wrongful conduct or representation.

[08/01] Bullard v. Burlington N. Santa Fe Ry. Co.
In a "mass action" alleging injuries caused by negligent handling of chemicals, denial of a motion to remand to state court is affirmed where the Class Action Fairness Act grants federal jurisdiction when plaintiffs propose to try their claims jointly, and this requirement is met upon filing of a single complaint involving common questions of law or fact, even where plaintiffs do not actually seek class certification.

[08/01] Windy City Metal Fabricators & Supply, Inc. v. CIT Tech. Fin. Servs., Inc.
In a class-action suit alleging fraud and deceptive business practices, grant of a motion to dismiss is affirmed in part and reversed in part where: 1) fraud claims did not meet the heightened pleading requirements for such claims under Fed. R. Civ. P. 9(b) by articulating the "who, when, and how" of all alleged frauds; 2) deceptive-practices claims, though made under the Illinois Consumer Fraud Act (CFA), were properly held to federal, rather than state, pleading standards; 3) deceptive business practice claims under the CFA are subject to the notice pleading standard of Rule 8, not the heightened standards of Rule 9(b); and 4) plaintiffs' CFA claims met the Rule 8 requirements.

[07/31] Liner v. Workers Temp. Staffing, Inc.
In a class-action suit alleging that defendant overcharged day laborers for transportation between defendant's labor halls and its worksites in violation of Florida Statutes section 448.24(1)(b), judgment for defendants is affirmed and declaration that the statute was unconstitutionally vague is reversed where: 1) defendant was not liable to plaintiff under the statute because its transportation charges were within the statutory requirement that employers charge a "reasonable amount" for such transportation; and 2) because the case could be decided on those grounds, the court should refrain from deciding the constitutional question.

[07/31] In re: Estate of Ferdinand E. Marcos Human Rights Litig.
In a proceeding brought to extend a prior judgment in multidistrict litigation against Ferdinand Marcos and his estate so that an enforcement action in another district could proceed, orders denying intervention to the party against whom collection was sought are reversed, and an order granting the extension is vacated, where: 1) the party against whom enforcement was sought had a significant protectable interest at stake that gave it the right to be heard in the extension proceeding, and to appeal; and 2) the district court erred in extending the judgment pursuant to a request that was not made within ten years after the original judgment was rendered.

[07/29] Parra v. Bashas', Inc.
In a class action brought by current and former employees of defendant alleging that they had been discriminated against based upon their national origin in violation of Title VII and 42 U.S.C. section 1981, a decision denying certification of the class alleging pay discrimination is reversed where the district court abused its discretion in failing to find commonality in plaintiffs' original class definition for the discriminatory pay claim.

[07/28] Garcia v. Tyson Foods, Inc.
In a class-action case brought against Tyson Foods alleging, inter alia, violations of the Fair Labor Standards Act of 1938 (FLSA), defendants' appeal from an interlocutory order denying their motion for partial summary judgment is dismissed where the interlocutory order had no precedential effect and could not have modified an injunction that had been entered against defendant's predecessor-in-interest in another case.

[07/28] Koponen v. Pacific Gas & Electric
In a class action suit against defendant Pacific Gas & Electric Company (PG&E) for damages after PG&E leased or licensed rights in easement burdening plaintiffs' property to telecommunications companies for purposes of installing and using fiber optic lines, the case is remanded where: 1) trial court erred in ruling that Public Utilities Code section 1759 deprived it of jurisdiction to consider all of plaintiffs' claims; and 2) some of those claims survive the bar of the section.

[07/28] Rickher v. Home Depot, Inc.
In a class-action suit alleging that defendant's sale of damage waivers for tool rentals violated the Illinois Consumer Fraud and Deceptive Business Practices Act (CFA), summary judgment for defendants is affirmed where plaintiff failed to demonstrate that the waiver offer was "deceptive" and therefore covered by the CFA.

[07/24] Clark v. Optical Coating Lab., Inc.
In a toxic tort action following a jury trial that resulted in mistrial, award of attorney's fees and sanctions to defendants is reversed where there was no legal basis for the attorney's fees, costs, and expert witness fees awarded as sanctions against plaintiffs and their attorneys. Grant of a renewed motion to dismiss in favor of one defendant is also reversed where, even without excluded material, plaintiffs had sufficient evidence to support a jury verdict against defendant. Summary judgment and award of expert witness fees under Code of Civil Procedure section 998 in favor of the state are affirmed where there was no abuse of discretion in the fact or amount of such award.

[07/22] Brinker Restaurant Corp. v. Superior Ct
In an action involving alleged violations of laws governing rest and meal breaks on transfer from the state supreme court, the court of appeals rules that: 1) while employers cannot impede, discourage or dissuade employees from taking rest periods, they need only provide, not ensure, rest periods are taken; 2) employers need only authorize and permit rest periods every four hours or major fraction thereof and they need not, where impracticable, be in the middle of each work period; 3) employers are not required to provide a meal period for every five consecutive hours worked; 4) while employers cannot impede, discourage or dissuade employees from taking meal periods, they need only provide them and not ensure they are taken; and 5) while employers cannot coerce, require or compel employees to work off the clock, they can only be held liable for employees working off the clock if they knew or should have known they were doing so.

[07/22] Bondi v. Capital & Fin. Asset Mgmt. S.A.
Denial of motion by debtor in foreign bankruptcy proceedings to enjoin actions brought against it in the United States is affirmed where the district court acted within its sound discretion in interpreting 11 U.S.C. section 304(c)'s instruction to assure an economical and expeditious administration of a foreign estate.

[07/21] In re Lugo
In a habeas class action on behalf of parole-eligible life prisoners involving, inter alia, efforts to reduce the backlog of parole suitability hearings, an order by the trial court in the matter is affirmed with respect to an attorney's fee award but reversed to the extent the order required the Board "not to deny further parole consideration for more than one year in the case of prisoners who have formerly been denied for one year, in the absence of a significant change in circumstances, which must be stated on the record." A separate order is reversed to the extent it related to the preparation of parole hearing transcripts or imposed penalties for the untimely preparation of such transcripts.

[07/18] LA ex rel Caldwell v. Allstate Ins. Co.
In a parens patriae action alleging violations of Louisiana's antitrust laws, denial of plaintiff's motion to remand the case back to state court after removal to federal court pursuant to the Class Action Fairness Act is affirmed where: 1) the Louisiana attorney general has power to bring parens patriae antitrust actions and possesses broad powers to vindicate the interests of the state; 2) the policyholders and not the state are the real parties in interest due to the state's request for treble damages; and 3) plaintiff waived its Eleventh Amendment immunity.

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Consumer Protection

[08/18] Yabsley v. Cingular Wireless, LLC
In a claim that defendant-Cingular engaged in unfair competition in violation of Business and Professions Code section 17200 and misleading advertising by failing to inform consumer that a tax would be imposed on the full price of the cellular phone, judgment in favor of defendant is affirmed where: 1) when specific legislation provides a safe harbor, plaintiffs may not use the general unfair competition law to assault that harbor; 2) a sales invoice Cingular gave to plaintiff stated the amount of the sales tax imposed on the sale and gave plaintiff notice of the amount of sales tax that would imposed; and 3) plaintiff had the right to refuse to enter into the contract for the price stated.

[08/18] Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA
The Fair Debt Collection Practices Act's (FDCPA) bona fide error defense applies to mistakes of law, and is not limited to procedural or clerical errors. In an action claiming law firm and one of its attorneys violated the FDCPA when they used allegedly deceptive forms to notify her of a foreclosure on her home, summary judgment for defendants is affirmed where: 1) although defendants violated the FDCPA by instructing plaintiff that she had to dispute the debt in writing; nevertheless, 2) defendants qualified for the FDCPA bona fide error defense.

[08/14] Gene & Gene LLC v. Biopay LLC
Order certifying a class of plaintiffs who alleged violations of the Telephone Consumer Protection Act (TCPA), 47 U.S.C. section 227, specifically unsolicited advertisements sent from one fax machine to another, is reversed where: 1) there was subject-matter jurisdiction over the case under the Class Action Fairness Act; and 2) plaintiffs had failed to advance any viable theory employing generalized, class-wide proof concerning the issue of lack of consent.

[08/07] Peck v. Cingular Wireless, LLC
In a class action lawsuit brought by a former employee against Cingular claiming, inter alia, it violated state law by passing a business and occupation tax (B&O tax) on to consumers in the form of a line item charge, dismissal of the suit is vacated where, contrary to the ruling below, there was no federal preemption of plaintiff's state law claims.

[08/05] Hunt v. U.S. Tobacco Co.
In a putative class-action suit alleging deceptive conduct by producers of smokeless tobacco products under the Pennsylvania Uniform Trade Practices and Consumer Protection Law, denial of motion to dismiss is vacated and remanded where a complaint alleging deceptive conduct must allege that plaintiff justifiably relied on defendant's wrongful conduct or representation.

[08/04] Tammi v. Porsche Cars N. Am., Inc.
In a state lemon-law suit, motion for judgment notwithstanding the jury's verdict for plaintiff is affirmed, and remand of appeal on damages is stayed for certification of questions to the Wisconsin Supreme Court where: 1) the jury's verdict was not against the clear weight of the evidence regarding the substantial impairment of the use of the vehicle; and 2) the Wisconsin lemon-law statute provided insufficient guidance on what constitutes "pecuniary loss."

[08/01] Windy City Metal Fabricators & Supply, Inc. v. CIT Tech. Fin. Servs., Inc.
In a class-action suit alleging fraud and deceptive business practices, grant of a motion to dismiss is affirmed in part and reversed in part where: 1) fraud claims did not meet the heightened pleading requirements for such claims under Fed. R. Civ. P. 9(b) by articulating the "who, when, and how" of all alleged frauds; 2) deceptive-practices claims, though made under the Illinois Consumer Fraud Act (CFA), were properly held to federal, rather than state, pleading standards; 3) deceptive business practice claims under the CFA are subject to the notice pleading standard of Rule 8, not the heightened standards of Rule 9(b); and 4) plaintiffs' CFA claims met the Rule 8 requirements.

[08/01] Jaramillo v. Weyerhaeuser Co.
In an appeal from summary judgment dismissing a strict liability action brought by injured worker plaintiff against defendant former owner of injuring machine, a question is certified to the New York Court of Appeals concerning when a seller of used machinery may be deemed a regular seller for purposes of New York's strict products liability law.

[07/30] Californians for Disability Rights v. Mervyn's LLC
In a case brought by plaintiff-organization representing disabled individuals against defendant-retailer Mervyn's for maintaining narrow pathways between merchandise display racks that block shoppers with wheelchairs and other mobility aids from reaching the merchandise, judgment for Mervyn's is reversed and remanded where: 1) there was sufficient evidence to support a finding that removal of barriers to access was not readily achievable in this instance, and thus not legally mandated; but 2) a retailer does not meet its obligation to make its merchandise available to disabled individuals denied access to the retailer's existing stores by constructing new and geographically distant stores that are accessible.

[07/28] Rickher v. Home Depot, Inc.
In a class-action suit alleging that defendant's sale of damage waivers for tool rentals violated the Illinois Consumer Fraud and Deceptive Business Practices Act (CFA), summary judgment for defendants is affirmed where plaintiff failed to demonstrate that the waiver offer was "deceptive" and therefore covered by the CFA.

[07/24] Bodine v. Graco, Inc.
The private right of action under the Motor Vehicle Information and Cost Savings Act is limited to allegations of fraud relating to a vehicle's mileage.

[07/23] Thompson v. Toll Dublin, LLC
In a matter involving various fraud-related claims arising from the purchase of condominiums built and/or sold by defendants, denial of defendants' petition to compel arbitration and stay proceedings is affirmed where: 1) the arbitration agreement did not apply to plaintiffs' fraud-related claims; and 2) the arbitration provisions were, in any event, unconscionable and therefore unenforceable.

[07/17] Owen v. Gen. Motors Corp.
In a putative class action brought against GM after plaintiffs' windshield wipers failed alleging breach of warranty, breach of contract, unjust enrichment, fraudulent concealment and violations of the Missouri Merchandising Practices Act (MMPA), dismissal and other rulings against plaintiffs are affirmed where: 1) the district court did not err in dismissing breach of warranty and fraudulent concealment claims on statute of limitations grounds; 2) dismissal of a breach of contract claim was proper as well; 3) there was no abuse of discretion in denying leave to amend; 4) summary judgment on the state law MMPA claim was proper as plaintiffs presented no evidence from which a jury reasonably could conclude that their loss was the result of the alleged defect that GM failed to disclose.

[07/16] Sovereign Bank v. BJ's Wholesale Club, Inc.
Orders dismissing claims arising from the theft of credit card information from a retailer's computer files are affirmed in part and reversed in part where: 1) respective grants of summary judgment to defendant-acquirer on question of whether plaintiffs-card issuers were intended third-party beneficiaries under state law of the contract between defendant-acquirer and defendant-merchant required reversal, as plaintiffs had met their burden to show the existence of a genuine issue of material fact; 2) dismissal of equitable indemnification claims for cardholders' losses due to unauthorized charges was proper since TILA section 1643 addresses only the liability of cardholders, not card issuers, for unauthorized charges; 3) the economic loss doctrine barred recovery for negligence where plaintiff suffered only monetary losses without any accompanying physical or property damage; 4) for purposes of an unjust enrichment claim, plaintiff could not show that defendants derived more than an incidental benefit from plaintiff's conduct.

[07/16] Brack v. Omni Loan Co., Ltd.
In a suit alleging violations of borrower's rights under the Finance Lenders Law, and raising claims under the Consumers Legal Remedies Act and Unfair Competition Law, dismissal of the suit based on choice of law provisions in the loan agreements is reversed where: 1) the Finance Lenders Law represents a fundamental policy of the state and application of the provisions would undermine the policy; and 2) application of Nevada law would impair California's regulatory interests to a far greater extent than application of California law would impair Nevada's interests.

[07/15] Campfield v. State Farm Mut. Auto. Ins. Co.
In a suit alleging violations of the Sherman Act, the Colorado Consumer Protection Act (CCPA), and tortious interference with contractual relations, dismissal and summary judgment for defendant, and a decision not to rule on plaintiff's objection to discovery orders are affirmed where: 1) plaintiff's claims under section 2 of the Sherman Act failed to allege an appropriate market; 2) defendants dod not engage in per se horizontal restraint of trade under section 1 of the Act; 3) claims under section 1 of the Sherman Act failed for failure to allege a legally relevant market; 4) plaintiff has failed to provide sufficient evidence for a CCPA claim; 5) tortious interference claims failed for lack of evidence; and 6) there was no abuse of discretion in not ruling on plaintiff's discovery motion.

[07/15] Sony Computer Enter. Am., Inc. v. Am. Home Assurance Co.
In a suit brought by Sony against insurers for failing to indemnify and defend it in a class action suit alleging product defects in the Sony PlayStation 2 video game system, summary judgment for defendants is affirmed where neither insurance company had a duty to indemnify or defend Sony in the underlying lawsuit, primarily since the suit did not assert claims within the meaning of the term "negligent publication." The circuit court defines the term "negligent publication" as a narrow tort in which the publication of material encourages or instructs readers to engage in harmful conduct.

[07/14] Tammi v. Porsche Cars N. Am., Inc.
In a suit brought under Wisconsin's Lemon Law for a Porsche leased by plaintiff, a jury verdict for plaintiff is affirmed where: 1) there was sufficient evidence presented that the vehicle plaintiff leased suffered a nonconformity that substantially impaired its use; and 2) the jury's verdict was not against the clear weight of the evidence regarding the substantial impairment of the use of the vehicle. However, the circuit court stays remand of the appeal and certifies four questions to the Wisconsin Supreme Court regarding pecuniary loss under Wisconsin law.

[05/22] TJX Companies, Inc. v. Superior Court (Caldwell)
In a review of lower court rulings of a pending class action based on alleged violations of a statute prohibiting businesses from requiring credit cards users to provide certain personal identification information, the court of appeals rules that: 1) because the statute imposes a "penalty", it is subject to the one-year statute of limitations of Code of Civil Procedure section 340; and 2) based on the plain meaning of the statutory language, the statute does not apply to merchandise returns.

[05/14] Saunders v. Branch Banking and Trust Co. of Virginia
In an action alleging violation of defendant-lender's duties as a furnisher of information under the Fair Credit Reporting Act (FCRA), judgment against defendant including a denial of defendant's motions for judgment as a mater of law and for remittitur is affirmed where: 1) a decision by defendant to report a debt to credit reporting agencies without mention of a dispute was in violation of section 1681s-2 of the FCRA; 2) plaintiff was able to demonstrate that defendant knowingly and intentionally withheld information of a valid dispute from credit reporting agencies; 3) there were sufficient facts for a jury to find that plaintiff had an excuse for failing to make payments; and 4) an $80,000 punitive award was not grossly excessive in light of defendant's reprehensible conduct and the fact that a lower award would not have a punitive or deterrent effect.

[05/06] Pludeman v. N. Leasing Sys., Inc.
The court of appeals rules that plaintiffs sufficiently pleaded a cause of action for fraud against individually-named corporate defendants pursuant to CPLR 3016(b) where it was not unequivocal, as a matter of law, that a finder of fact could not reasonably infer the requisite knowledge or participation by the individual defendants in an act of fraud.

[04/30] Clark v. Time Warner Cable
The doctrine of primary jurisdiction permits a district court to refer a claim raising a novel and technical question of federal telecommunications policy to the Federal Communications Commission (FCC) for its consideration in the first instance.

[04/30] Trans-Spec Truck Serv., Inc. v. Caterpillar Inc.
In a case applying the accrual and statute of limitations provisions of the Massachusetts U.C.C. to breach of warranty claims brought against an engine manufacturer, dismissal of plaintiff's warranty and Massachusetts Gen. Laws chapter 93A claims as time-barred, as well as summary judgment for defendant on plaintiff's negligence claims, are affirmed where: 1) the breach of warranty claim, accruing on the date of delivery of goods, was filed after the expiration of the limitations period, and plaintiff's equitable estoppel arguments were unavailing; and 2) plaintiff made no compelling argument and cited no specific facts which would invalidate the exculpatory language contained in a negligence exclusion clause.

[04/25] Ross v. Bank of America, N.A.
In an appeal involving whether mandatory arbitration clauses found in credit card contracts issued by defendants, assuming they were products of illegal collusion among credit providers, give rise to Article III standing, dismissal of plaintiffs-cardholders' antitrust suit is vacated and remanded where: 1) the district court erroneously held that plaintiff-cardholders failed to allege an "injury in fact" sufficient to confer Article III standing; and 2) plaintiffs' claims were ripe for adjudication.

[04/24] Ackermann v. Wyeth Pharm.
In case brought plaintiff-wife alleging that defendant failed to adequately warn about drug-induced risk of suicide from its drug Effexor, leading to her husband's suicide, summary judgment against plaintiff is affirmed where plaintiff failed to demonstrate causation under the learned-intermediary doctrine.

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Drugs & Biotech

[08/18] Voda v. Cordis Corp.
In a patent-infringement suit involving catheters used in interventional cardiology, judgments are affirmed in part, reversed in part, and vacated and remanded in part where: 1) patent claim terms were properly construed; 2) one of plaintiff's patents was not invalid for anticipation or obviousness; 3) a permanent injunction was properly denied; 4) defendant waived arguments that it did not infringe certain claims under the court's construction of those claims; 5) substantial evidence supported the jury's findings that defendant's catheter was equivalent to the claimed invention; 6) prosecution history estoppel prevented plaintiff from establishing infringement as to certain claims; and 7) an intervening circuit court decision required a remand for determination of the willfulness of defendant's infringement.

[08/15] Prasco, LLC v. Medicis Pharm. Corp.
In an action seeking a declaratory judgment that one of plaintiff's benzoyl peroxide cleansing products did not infringe various patents owned by defendants, dismissal for lack of subject matter jurisdiction is affirmed where: 1) the "all-circumstances" test stated in MedImmune, Inc. v. Genentech, Inc., 127 S. Ct. 764 (2007), rejected the Federal Circuit's "reasonable apprehension of suit" test as the sole test for determining subject matter jurisdiction in declaratory judgment actions, but proving a reasonable apprehension of suit remains one of multiple ways that a declaratory judgment plaintiff can satisfy the all-circumstances test for jurisdiction; and 2) in this case, plaintiff failed to establish, based on all the circumstances, that there was a justiciable case or controversy.

[08/13] Polski v. Quigley Corp.
In a products liability action alleging plaintiffs suffered severe and permanent impairment of their senses of taste and smell due to their use of a nasal spray made and distributed by defendant for the treatment of cold symptoms, summary judgment for defendant is affirmed where: 1) the district court did not err in excluding plaintiffs' expert's proposed testimony as his causation theory relied on an unproven and untested premise; and 2) without his testimony, plaintiffs could not make a prima facie case.

[08/11] In re: Gilead Sci. Sec. Litig.
In a securities fraud action claiming defendant-biopharmaceutical company misled the investing public by representing that demand for its most popular product was strong without disclosing that unlawful marketing was the cause of that strength, dismissal of the suit is reversed where, contrary to the ruling below, investors sufficiently alleged loss causation and economic loss.

[08/11] Little Gem Life Sciences LLC v. Orphan Med., Inc.
In a securities class action against a company alleging that the company and two of its principal executive officers negligently failed to disclose material information to stockholders before asking them to approve a merger, grant of defendants' joint motion to dismiss is affirmed where: 1) the district court properly denied Little plaintiff's request to convert a motion to dismiss into a motion for summary judgment; and 2) the district court did not err in determining that plaintiff failed to meet the heightened pleading standards required by the PSLRA.

[08/07] New Jersey Carpenters Pension & Annuity Funds v. Biogen IDEC, Inc.
In a federal securities class action matter alleging defendant drug company and senior executives intentionally misrepresented the safety of and the market for new drug for multiple sclerosis by omission and commission, dismissal of complaint is affirmed where the complaint failed to meet adequately the pleading requirements for scienter established in the Private Securities Litigation Reform Act of 1995 ("PSLRA").

[07/31] County of San Diego v. San Diego NORML
Judgment rejecting plaintiff counties' claims that Medical Marijuana Program Act (MMP)is invalid under preemption principles and that MMP poses an obstacle to the congressional intent embodied in California's Compassionate Use Act (CUA), is affirmed where: 1) the MMP's identification card program has no impact on the protections provided by the CUA; and 2) counties' claim that those provisions are invalidated by Article II, section 10, subdivision (c), of the California Constitution are rejected.

[07/29] Bailey v. Janssen Pharmaceutica, Inc.
In a case of first impression involving the limitations period for removal in a multi-defendant litigation, denial of plaintiff's motion to remand her wrongful death action related to use of a prescription patch to state court is affirmed where the court adopts the "last-served" defendant rule which permits each defendant, upon formal service of process, thirty days to file a notice of removal pursuant to U.S.C. section 1446(b).

[07/25] Clayworth v. Pfizer, Inc.
In a matter of first impression in California antitrust law, the court of appeals rules that the pass-on defense is available to defendants accused of price-fixing.

[07/25] Meijer, Inc. v. Biovail Corp.
In consolidated antitrust actions alleging that a drug manufacturer misused its patent to keep a generic equivalent to one of its drugs off the market, summary judgment for defendant is affirmed where: 1) plaintiffs did not produce evidence sufficient to show that, but for the conduct of defendants, the would-be manufacturer of the generic equivalent was prepared to sell the equivalent and could have obtained FDA approval to do so; and 2) plaintiffs' amended complaint did not relate back and did not make out a timely cause of action under antitrust laws.

[07/22] Chein v. Drug Enforcement Admin.
DEA's revocation of petitioner-physician's practitioner's registration and denial of his application for a registration to export Schedule III and Schedule IV substances are affirmed where petitioner failed to demonstrate that his revocation represents a "flagrant departure from DEA policy and practice" in analogous cases.

[07/21] Bandana Trading Co., Inc. v. Quality Infusion Care, Inc.
In an action for breach of contract, judgment for plaintiff is affirmed over claims of error that: 1) the trial court erred when it refused to remove a juror for misconduct after the juror applauded by clapping her hands during defendant's rebuttal argument; 2) defendant was entitled to a new trial because the same juror committed misconduct during deliberations when she injected technical knowledge into the deliberations, intimidating other jurors and rushing them into a verdict.

[07/21] Eisai Co. Ltd. v. Dr. Reddy's Lab., Ltd.
In a patent case involving a class of drugs known as proton pump inhibitors, summary judgment for plaintiff ruling that its patent was enforceable is affirmed where defendants failed to present sufficient evidence to establish that: 1) the patent in dispute was invalid for obviousness; or 2) plaintiffs had engaged in inequitable conduct by attempting to deceive the Patent Office.

[07/18] Med. Ctr. Pharmacy v. Mukasey
In a suit for declaratory relief seeking permission to continue compounding drugs without obtaining FDA approval, a ruling finding that compounded drugs are implicitly exempt from the new drug and new animal drug definitions, and that drugs compounded from bulk ingredients for non-food animals do not violate the Federal Food Drug and Cosmetic Act's (FDCA) unsafe, adulteration, or misbranding provisions is vacated and the case remanded where the FDCA, as amended, permits compounded drugs to avoid the new drug approval process, but the exception applies only in certain statutorily-delimited circumstances.

[05/27] Weaver v. CCA Indus., Inc.
A ruling, which found that a policy issued by third-party insurer to its insured provided no coverage to third-party plaintiff and that the insurer had no obligation to defend and indemnify it, is vacated and remanded where: 1) third-party plaintiff qualified as an additional insured under the policy with respect to plaintiff's claim under the Louisiana Product Liability Act; 2) an exclusion for alternating and relabeling the product does not apply since it had no nexus to the harm alleged; and 3) another exclusion was inapplicable since the formula for a product is not an "ingredient" for purposes of making that product.

[05/14] Aventis Pharma S.A. v. Amphastar Pharm., Inc.
In a patent case involving plaintiffs-Aventis' drug Lovenox, a drug effective in preventing blood clotting while minimizing the possibility of hemorrhaging, a ruling holding plaintiff's patents unenforceable due to inequitable conduct is affirmed where: 1) the district court did not err in determining that half-life comparisons were intended to show compositional differences to address the anticipation rejection; 2) the court did not abuse its discretion in excluding evidence that comparison of half-lives at different doses to demonstrate a difference in property was routine practice; and 3) there was sufficient evidence to showing an intent to deceive on the part of plaintiff's expert.

[05/01] Amerisource Corp. v. U.S.
A ruling that there was no compensable taking in the seizure of an innocent third party's property, which was never introduced as evidence in a criminal proceeding and was rendered worthless over the course of the proceedings, is affirmed where: 1) the government seized the goods pursuant to the police power and not for "public use" within the meaning of the Fifth Amendment; and 2) the innocence of the third party did not make the seizure of property under the police power a compensable taking.

[04/29] In re: Subpoena in Collins
In an action against GlaxoSmithKline alleging the drug Paxil radically changed an individual's behavior and led him to take his own life, an order quashing a subpoena commanding a a Smithsonian employee to testify at a deposition is reversed and remanded where the federal government's claim to sovereign immunity does not apply to an employee's personal observations and opinions regarding a co-worker's behavior which are unrelated to the employee's official duties.

[04/24] Ackermann v. Wyeth Pharm.
In case brought plaintiff-wife alleging that defe