Defense Strategies

News & Analysis as of

Class Action Defense Cases – Williams v. Superior Court: California Appellate Court Affirms Trial Court Order Limiting Discovery...

Plaintiff’s Pre-Class Certification Discovery Request for Contact Information of Putative Class Members Properly Limited to Employees who Worked in the Same Store Location as Plaintiff California Court of Appeal...more

Florida Courts Continue to Take the Wind Out of Foreclosure Defense Attorneys’ Sails

In late July, another Florida appellate court took a sizable chunk out of foreclosure defense attorneys’ litigation playbook, holding that substantial compliance, rather than strict compliance, is the prevailing standard to...more

The Clock’s Running Fast: SDNY Is First to Interpret “Identification” Under the FCA’s “60-Day Rule” for Government Overpayments

On August 3, 2015, in United States ex rel. Kane v. Healthfirst, Inc., et al., No. 1:11-cv-02325 (S.D.N.Y. Aug. 3, 2015), the United States District Court for the Southern District of New York issued the first reported...more

Be Very Careful If You Are Instructing Your Clients Not To Answer Questions At A Deposition

In an (unpublished) Order last week in Griggs v. Bittersweet Farms, LLC, Judge McGuire ruled that Plaintiffs' counsel's instruction to his client not to answer certain deposition questions was improper. He granted a Motion...more

The Layered Look: Copyrights and Visual Arts

People are generally aware that a painting, photograph, sculpture or other works of art are subject to copyright protection but many are less aware that copyright has many layers of possible protection which can present legal...more

Natural Contaminants Exceed Human-Made Contaminants in California’s Groundwater

Defendants in groundwater contamination cases in California have additional evidence to direct blame where it should be placed – on naturally occurring contaminants. An extensive study by the U.S. Geological Survey (USGS) has...more

Time’s Up! Court Refuses To Equitably Toll Statute Of Limitations In EPA Action

In a decision worth reading for all class action practitioners, especially those who face Equal Pay Act (“EPA”) issues, Judge Ronnie Abrams of the U.S. District Court for the Southern District of New York denied equitable...more

Recording Customer Phone Calls: Is Your Hotel Violating the Law?

In the past few years, class action plaintiffs have recovered billions of dollars in punitive damages by exploiting strict liability laws that punish businesses for failing to properly notify customers when a phone call is...more

Federal Circuit Reaffirms Kessler Doctrine As A Patent Infringement Defense For Customers

Applying a doctrine dating to Kessler v. Eldred, 206 U.S. 285 (1907), the U.S. Court of Appeals for the Federal Circuit recently ruled that when a patentee’s infringement action against the manufacturer of an accused product...more

U.S. Supreme Court Issues Ruling Favorable To Employers Involved In Disparate-Impact Litigation

On June 25, 2015, the U.S. Supreme Court issued a 5 to 4 ruling in Texas Dep’t of Housing & Community Affairs v. Inclusive Communities Project, Inc., No. 13-1371 (2015). Now that the dust has settled from the Supreme Court’s...more

Bringing Punitive Damages to the Forefront of Florida Trucking Litigation

Having punitive damages imposed against a trucking company is often a source of great anxiety for defense attorneys and their trucking company clients. Florida attorneys skilled in the handling of truck accident cases...more

Has Exposure To Punitive Damages Increased In Arizona?

Until recently, it was generally accepted that punitive damages awards are to track awards of compensatory damages on a 1:1 ratio. This ratio was convenient for defendants, as it provided some amount of certainty when...more

Worth the Fight: Conditional Certification of FLSA Collective Actions is Not Automatic

Conventional wisdom holds that courts reflexively grant motions for conditional certification in Fair Labor Standards Act (“FLSA”) collective actions. As a result, some employers do not even oppose these motions. They are...more

Q&A Series: Locke Lord’s Jim Tyrrell on the Keys to a Winning Products Liability Defense

What is the key to succeeding for a client in a complex products liability or toxic tort matter? JT: It’s all in the ‘C’s.’ Command of the facts, command of the law, command of the science, command of the courtroom and...more

Illinois Appellate Court Finds Non-Injured Plaintiffs Lack Standing To Pursue Claims For Technical Violations Of State Consumer...

In Maglio v. Advocate Health and Hosps. Corp., 2015 IL App (2d) 140782-U (Ill. App. Ct. June 2, 2015), the Illinois Appellate Court was asked to decide whether individuals have standing to bring suit for violations of...more

The Frustrating EEOC Conciliation Process

Employers are often frustrated when dealing with the Equal Employment Opportunities Commission (EEOC) regarding employee Charges of Discrimination. Many EEOC charges are legitimate and allow current or former employees an...more

EPA Issues SIP Call to Eliminate SSM Defense

EPA has issued a final rule that requires 36 states to revise their State Implementation Plans to eliminate a well-known and often-used Clean Air Act defense for excess emissions. While specific elements of the defense...more

Why Criminal-Law Statute-Of-Limitations Principles Should Apply To Claims For Punitive Damages

There are not many true affirmative defenses to punitive damages, much less ones that can be established on the face of the complaint. One potential basis for dismissing a claim for punitive damages, which could be...more

Lack of Typicality and Adequacy of Representation Prevents Class Certification in Health Care Data Breach

The opinion from the Philadelphia Court of Common Pleas reinforces lack of standing as a defense for companies facing data breach–related class actions. On March 25, the Philadelphia Court of Common Pleas provided...more

Defending Against Non-Retained Experts

California is generally regarded as providing broad leeway for non-retained experts to testify on a range of matters. Several recent decisions, however, have narrowed the scope of permissible testimony for non-retained...more

Consumer Class Actions Against Liquor Producers Follow Familiar Path

Plaintiffs’ class action attorneys tend to follow trends. They are a savvy breed of attorney, at once creative and lazy (or efficient, depending on one’s perspective). One attorney discovers a statute, claim, or industry, and...more

Tools to Defend Against Securities Litigation Arising out of Cross-Border M&A Transactions

Litigation following a merger involving publicly traded companies has become so commonplace in recent years that shareholder lawsuits challenging proposed mergers and acquisitions are frequently (and begrudgingly) referred to...more

What Does Pharmacogenomics Have To Do With Product Liability? – Potentially Everything

Recently, Bexis attended the DRI drug and device committee spring conference. Among other things he heard a bang-up presentation on genomics and personalized (also known as “precision”) medicine from Paige Sensenbrenner. On...more

CCP Section 998 Offers to Compromise and Howell v. Hamilton Meats Collide

In Lee v. Silveira, et al., 2015 DJDAR 5287, the California Court of Appeal, Fifth Appellate District, held that a plaintiff is not entitled to recover fees under California Code of Civil Procedure (“CCP”) Section 998 where...more

Sticking up for Their Rights: Employers Taking the Offensive

The traditional posture of California employers apprehensive about “gotcha” wage and hour claims is to hunker down and wait for the next lawsuit. But a few brave souls have taken the offensive. We celebrate two examples here....more

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