Abuse of Discretion

News & Analysis as of

When Is a Rule 54(B) Certification Appropriate?

Recently, opposing counsel asked if we would stipulate to Rule 54(b) certification of a particular order granting/denying summary judgment on some but not all of plaintiffs’ claims. Of course, we thought this would make a...more

The Second Appellate District Refuses to Overturn a Jury Verdict Despite Defendant’s Admission of Causation and Bad Judgment

Sassa Minnegren v. Joshua B. Nozar - Court of Appeal, Second Appellate District (October 24, 2016) - In auto collision cases, the law establishes “that every mistake of judgment is not negligence, for mistakes are...more

Evidence From LinkedIn, IMDB Used to Support Denial of Benefits

Be careful what you ask for. The Plaintiff in a recent case from the Central District of California learned that lesson when the Plan’s re-evaluation of her claim for benefits revealed that she was apparently working as a...more

Federal Circuit Turns up the Heat on PTAB on Motions to Amend

The U.S. Court of Appeals for the Federal Circuit is increasingly scrutinizing the handling of Motions to Amend in Inter Partes Review (IPR) proceedings at the Patent Trial and Appeal Board (“PTAB,” or the “Board”). One case...more

Ninth Circuit Retires Fee-Award Standard, Imports Octane Fitness to Trademark Cases

This week, the U.S. Court of Appeals for the Ninth Circuit joined a majority of appellate courts that have rejected rigid tests for attorneys’-fees awards in favor of flexible discretion at the district court level. The...more

The 9th Circuit Injects Some “Octane” into the Lanham Act Attorneys’ Fee Provision

In the immortal words of the most recent Nobel Laureate in literature, “the times they are a changin.’” Section 35(a) of the Lanham Act provides that “[t]he court in exceptional cases may award reasonable attorney fees to...more

The ERISA Litigation Newsletter - October 2016

Editor's Overview - This month, we look at the implications of the two federal district court cases from California that applied the ban on discretionary clauses typically found in ERISA plans to self-insured plans. The...more

Litigation Alert: Ninth Circuit Adopts Broader Octane Fitness Standard for Attorneys’ Fees Awards under the Lanham Act

On October 24, 2016, the U.S. Court of Appeals for the Ninth Circuit after an en banc rehearing in Sunearth, Inc. v. Sun Earth Solar Power Co., LTD., adopted the Octane Fitness standard for determining whether a case is...more

Octane Fitness and Highmark Apply to Ninth Circuit Attorney Fee Awards under the Lanham Act

On October 24, 2016, the Ninth Circuit Court of Appeals, sitting en banc, held that district courts analyzing a request for attorney fees under the Lanham Act should consider the totality of the circumstances, as set forth in...more

Long Term Disability Payments: Standard for Abuse of Discretion

Insurance for long term disability – payments to an insured who is prevented from earning his or her income due to long term disability – is a fruitful field for litigation for many reasons. Though the insurance may be...more

Klesla et al. v. Wittenberg

Court did not abuse its discretion in denying a motion to confirm arbitration award that asked for more than was awarded. Kleslas sued for (1) the return of their residential lease security deposit, (2) statutory...more

Florida’s Fifth District Allows Evidence of Prior Sinkhole Insurance Settlement in Subsequent Sinkhole Trial

In Tower Hill Signature Ins. v. Speck, 2016 Fla. App. LEXIS 12167 (Fla. Dist. Ct. App. 5th Dist. Aug. 12, 2016), the Fifth District found the trial court abused its discretion by not admitting into evidence the amount of a...more

MoFo IP Newsletter - August 2016

Supreme Court Abolished Federal Circuit's Test for Willfulness - On June 13, 2016, in Halo Electronics, Inc. v. Pulse Electronics, Inc., 579 U.S. ___ (2016), the Supreme Court unanimously abrogated the Federal Circuit’s...more

The Renewed Importance of Opinions of Counsel in Patent Infringement Actions

Several recent court decisions in patent infringement actions reflect the significant impact of the Supreme Court's ruling in Halo Electronics, Inc. v. Pulse Electronics, Inc., which dramatically altered the landscape for...more

Lowndes Attorneys Obtain Favorable Rulings for Court-Appointed Receiver

Orlando, FL–Lowndes, Drosdick, Doster, Kantor & Reed, P.A. is pleased to announce that shareholder, Richard Dellinger, and appellate attorney, Jennifer R. Dixon, prevailed in defending a client appointed to serve as a...more

Can Parties Use Settlement Agreements to Vacate a Prior Judgment?

In Hartford Accident and Indemnity v. Crum & Forster Specialty Insurance et al., the Eleventh Circuit recently reversed a District Court’s decision refusing to vacate its prior judgments even though vacatur was a condition of...more

2nd Circuit Affirms Decertification of Class After Jury Verdict

Key Points - The U.S. Court of Appeals for the 2nd Circuit recently held that district courts have the power to decertify a class even after a jury verdict in favor of the class...more

Sixth Circuit Affirms FNC in Favor of Germany

We’ve mentioned before how our Trusts & Estates professor described the German legal system as “the mind of God revealed to man.” Professor Langbein was especially impressed with the German system of training judges, as well...more

A Tale of Two Decertification Motions

The Seventh and Eighth Circuits both addressed motions to decertify classes the week of July 5—with divergent results.  These cases illustrate the deference afforded district courts’ class certification determinations.  Both...more

T&E Litigation Newsletter- July 2016 #1

Two decisions issued in June will be of interest to probate litigators and estate planning lawyers. The Massachusetts Appeals Court issued a decision in late June with an interesting twist on the burden required to...more

When Settlement and Secrecy Do Not Mix

Non-disclosure and confidentiality provisions can be an important aspect of resolving a case through settlement. But when one of the parties is a purported class, and the allegation is an antitrust violation, settlement and...more

Supreme Court Makes it Easier for Medical Device Companies to Recover Enhanced Damages for Patent Infringement

The Patent Act provides that, in a case of infringement, courts “may increase the damages up to three times the amount found or assessed.” Previously, in order to recover enhanced damages under the Patent Act, a patent owner...more

Supreme Court Corner: Q2 2016

Stryker Corp. v. Zimmer, Inc. Halo Electronics, Inc. v. Pulse Electronics, Inc. PATENT – Decided: Jun. 13, 2016 Issue: Whether the Federal Circuit’s two-part test for willful patent infringement, with separate...more

Third Circuit Affirms Dismissal Where Post-Trial Movant Refused to Recreate Missing Trial Record

You litigate a case in federal court and get an adverse verdict. Believing this result unjust, you file a post-trial motion for judgment as a matter of law and in the alternative for a new trial. But there is a problem:...more

Insurer’s Potential Exposure to Fees and Costs When Prosecuting Indemnity Action under Assignment from Insured

Hearn Pacific Corporation v. Second Generation Roofing, Inc. - Court of Appeal, First Appellate District (May 2, 2016) - It is not uncommon in construction defect and some other cases for an insurer of the general...more

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