Civil Procedure Updates

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Texas appeals court: LLCs and partnerships are not "corporations" against which attorneys' fees can be awarded

The Fourteenth Court of Appeals in Alta Mesa Holdings, L.P. v. Ives, No. 14–14–00739–CV, 2016 WL 1534007 (Tex. App.—Houston [14th Dist.] Apr. 14, 2016) has reversed an award of attorneys’ fees granted by a trial court...more

U.S. Supreme Court Expands Types of Fraud Which May Bar a Bankruptcy Discharge

The Supreme Court has rewarded creditors and their attorneys with a decision expanding the kinds of “actual fraud” which will prevent the discharge of a bankruptcy debtor. Some lower courts had held that to prevent a...more

IP Alert: "Filing a Patent Complaint May Have Become More Difficult"

Effective December 1, 2015, Federal Rule of Civil Procedure 84 and its Appendix of Forms were repealed, including Form 18, which provided a generic complaint for patent infringement. Previously, a direct infringement claim...more

The new and improved adjudication pilot scheme for professional negligence claims

Last night (25 May 2016), Dentons hosted an event at One Fleet Place to launch the revised Adjudication Pilot Scheme for Professional Negligence Claims. Lord Justice Briggs delivered the keynote address. Background to...more

9th Circuit Narrows Grounds For Vacating Labor Arbitration Awards

Finding that some of its previous pronouncements were leading district court judges astray, the Ninth Circuit clarified its precedent regarding the scope of review of labor arbitration awards. “We conclude that it is time for...more

Solicitor General/OCC Opine Madden Was Incorrectly Decided, But Recommend Denial of Supreme Court Review

In a widely anticipated brief requested by the U.S. Supreme Court, the Solicitor General and the Office of the Comptroller of the Currency (OCC) have expressed the view of the United States that the Court should deny the...more

New York Reaffirms General Acceptance Standard in Frye for Scientific and Technical Issues

In a recent opinion handed down by New York’s highest state court – the Court of Appeals –Sean R. v. BMW of N. Am., LLC, 2016 N.Y. Slip. Op. 01000 (Feb. 2016) reaffirmed New York’s continued adherence to Frye’s “general...more

Delaware Court Allows Some Claims To Proceed In Data Breach Subrogation Action

Earlier this month, a Delaware state court dismissed multiple implied-warranty claims in a subrogation lawsuit against cybersecurity company Trustwave Corp., but allowed discovery to proceed on certain claims. The suit...more

Pennsylvania Federal Court Dismisses Untimely Medical Monitoring Class Claim

In a decision that may make it more difficult to sustain medical monitoring claims in Pennsylvania, a federal district court dismissed as untimely a putative class action alleging workplace chemical exposure. Blanyar v....more

Q&A on SCOTUS and Arbitration

Q: Why has the Supreme Court of the United States taken more cases involving disputes over arbitration over the past decade or so and what does it mean for the insurance and reinsurance industry? Arbitration law used to...more

Update: Midland Funding v. Madden

In an amicus curiae brief, the US Solicitor General recommends that the petition for certiorari in Madden be denied, but agrees that the Second Circuit’s decision is incorrect and emphasizes the importance of banks being able...more

CFTC Proposes to Allow Private Lawsuits for Transactions in RTOs and ISOs

The proposal could create uncertainty for market participants and raise jurisdictional questions about which regulator should police power markets....more

I Meant it at the Time: Second Circuit Reverses $1.2BN FIRREA Judgment

It’s hornbook law that a later intentional breach of contract, alone, doesn’t equal promissory fraud. Holding it therefore cannot establish mail or wire fraud, the Second Circuit reversed the Government’s $1.2 Billion FIRREA...more

Justice Department Sides With Financial Industry on Madden Case

Marketplace loan investors may want to "gather ye discounted Madden loans while ye may," as the Robert Herrick poem reads (taking some fintech license, of course). In the strongest rebuke yet of the U.S. Court of Appeals...more

A New Federal Tool to Defend Against Trade Secret Theft

A new federal law, the Defense of Trade Secrets Act (DTSA), was signed into law on May 11, 2016 by president Obama becoming Public Law No. 114-153. The new law is authorized by the Commerce Clause of the U.S. Constitution...more

8th Cir. Rejects Dr.’s Grab-Bag Retaliation Suit

Dr. Alaa Elkharwily lost his job at Albert Lea Clinic, but he didn’t go quietly. He sued the clinic and eight related organizations and individuals alleging just about everything a terminated doctor can allege in Minnesota:...more

Do State Courts Lack Subject Matter Jurisdiction Over Covered Class Actions That Allege Only ’33 Act Claims?

In Luther v. Countrywide Financial Corp., 195 Cal. App. 4th 789 (2011), the trial court ruled that state courts do not enjoy concurrent jurisdiction when a class action meeting the definition of a “covered class action” under...more

Court Finds Bracewell & Guiliani Report Unprotected by the Privilege or the Work Product Doctrine

Many clients assume that the attorney-client privilege will almost always automatically protect any law firm's report to them, and that the work product doctrine will also apply whenever they anticipate litigation. Like other...more

Voir Dire: Your First Chance to Make a Good Impression

Some attorneys erroneously think of their opening statement as the first opportunity to present themselves to the jury. In reality, the jurors will begin getting an impression of you—and by extension, your case—as soon as you...more

2nd Circuit Speaks: LIBOR Plaintiffs May Pursue Claims

On May 23, 2016, the Second Circuit issued a long-awaited decision in the In re: LIBOR-Based Financial Instruments Antitrust Litigation, vacating the District Court’s (Buchwald, J.) prior decision dismissing one case in this...more

In re: TC Heartland LLC: Status Quo for Venue Selection in Patent Suits (For Now)

The Federal Circuit, in In re: TC Heartland LLC (No. 2016-105), recently issued an opinion denying TC Heartland’s petition for a writ of mandamus to direct the U.S. District Court for the District of Delaware to either...more

Supreme Court Decides Not to Decide on Latest Challenge to ACA Contraceptive Coverage

The Supreme Court in a unanimous opinion remanded Zubick v. Burwell — and the six cases consolidated with Zubick — back to the Courts of Appeals to rule on the contraceptive opt-out notice provisions. The Court directed the...more

Reinsurer “Access to Records” and “Common Interest” – Permitting Access and Preserving Privilege

An integral part of the relationship between the reinsurer and cedant is that the reinsurer be permitted access to the ceding company’s books and records. A cedant, however, may face the dilemma of risking waiver of privilege...more

City of Perris v. Stamper Oral Arguments Tomorrow

Eminent domain fans!  Take heed: The City of Perris v. Stamper case (S213468) will finally be heard by the California Supreme Court tomorrow at 9:00 a.m. in San Francisco.  I recapped the issues that are going to be addressed...more

First Circuit: Plaintiffs’ Specific Causation Expert Fails to Pass Muster in Benzene Case

Last week, we (along with many of you, we assume) attended the DRI Drug and Medical Device conference in Chicago. We re-connected with friends dating to the beginning of our lengthy career (literally – ran into the head of...more

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