Summary Judgment

News & Analysis as of

Plaintiff’s Expert Physician Deemed Not Competent to Testify as to the Standard of Care Applicable to Hospitals

In Lattimore v. Dickey (2015 S.O.S. 4448 – filed August 21, 2015), the California Court of Appeal for the Sixth District held that plaintiff’s expert physician’s declaration was insufficient to create a triable issue of...more

Do Not Mess With Michael Jordan And His Right Of Publicity

After Michael Jordan was inducted into the Basketball Hall of Fame in September of 2009, Sports Illustrated ran a special issue to commemorate Jordan’s achievement and celebrate his career. The issue was to be sold in...more

TCPA Defendant Wins With “Human Intervention” Defense in California

A recent decision out of the Northern District of California creates new hope for TCPA defendants. In Luna v. Shac, LLC, Case No. 5:14-cv-00607-HRL, 2015 WL 4941781 (N.D. Cal. Aug. 19, 2015), defendant Shac, LLC won summary...more

Delaware Judges Are Finding Patent Claims Indefinite Post-Nautilus

It has been a little more than a year since the Supreme Court rendered its decision in Nautilus, lowering the standard for finding patent claim terms indefinite. Many commentators at that time predicted the decision would...more

U.S. Fish and Wildlife Service Issues Proposed Rule Regarding Critical Habitat Determination for the Marbled Murrelet

On August 25, 2015, the U.S. Fish and Wildlife Service (Service) published a proposed rule relating to the existing critical habitat for the marbled murrelet (Brachyramphus marmoratus). The murrelet is listed as a threatened...more

Has the Fifth Circuit Opened the Door for Potential Liability of Staffing Companies?

In Burton v. Freescale Semiconductor Inc. and Manpower of Texas, LP, No. 14-50944, — F.3d —-, 2015 WL 4742174 (5th Cir. Aug. 10, 2015), the Fifth Circuit reversed the district court’s grant of summary judgment for two...more

California Court Dismisses TCPA Claim, Finding Human Intervention in Transmission of Internet Text Messages Removed Them From FCC...

In one of the first court decisions issued since the FCC’s declaratory ruling expansively defined autodialers for purposes of the TCPA, a California district court has dismissed TCPA claims based on promotional text messages,...more

Seventh Circuit Issues Stern Warning For Insurers That Reject Their Duty to Defend

The first line of the Seventh Circuit’s opinion says it all: “This case provides a warning for insurance companies who refuse to defend their insureds.” As the court’s admonishment suggests, insurers that improperly refuse to...more

Federal Reserve Board Issues Clarification on Treatment of Transactions-Monitoring Costs Under Regulation II

On August 14, 2015, the Board of Governors of the Federal Reserve System (the Board) published a clarification (the Clarification) of the Board’s decision to include transactions-monitoring costs in establishing the 21-cent...more

Texas Appeals Court Affirms Summary Judgment For Texas Comptroller In Risk Pool Row

A Texas appeals court affirmed a summary judgment that rejected an attempt by two insurers to recover more than $1.1 million for taxes, penalties, and interest on certain reinsurance agreements. Argonaut Insurance Company and...more

Age is Just a Number: Ninth Circuit Ruling in Age Discrimination Case Adopts Seventh Circuit’s “Rebuttable Presumption” Approach...

On August 3, 2015, the U.S. Court of Appeal for the Ninth Circuit issued a decision in France v. Johnson, holding that an average age difference of less than 10 years between an Age Discrimination in Employment Act (ADEA)...more

The SemCrude Bankruptcy: Commodity Traders Prevail Against Related Fraud and U.C.C. Claims

In 2008, SemCrude, L.P. and related entities (collectively, SemCrude or the Debtors) filed voluntary petitions for relief under Chapter 11 of the U.S. Bankruptcy Code. In connection with the SemCrude bankruptcy, a dispute...more

Preemption (and Other Things) Defanging Depakote Claims

It wasn’t a complete win, but the summary judgment outcome in Rheinfrank v. Abbott Laboratories, Inc., ___ F. Supp.3d ___, 2015 WL 4743056 (S.D. Ohio Aug. 10, 2015), has to put a spring in the step of the defendants as they...more

Standard Essential Patents Unenforceable on Theory of Indirect Infringement

A recent decision by the Federal Circuit in JVC Kenwood Corp. v. Nero, Inc., decided August 17, 2015, involves nuanced details of standard-essential patents, but arrived at a common sense result: either the patents at issue...more

Strip Club Beats TCPA Case With Human Intervention

The Sapphire Gentlemen’s Club in Las Vegas sends promotional text messages to its customers. Doing so involved multiple steps. First, a Club employee inputs telephone numbers into a mobile marketing website. He does this by...more

Tenth Circuit Confirms That a Single Payment on New Purchase Contract May Satisfy Ordinary Course Defense Under 11 U.S.C. §...

In Jubber v. SMC Electrical Products, Inc. et al. (In re C.W. Mining Co.), Case No. 13-4175 (Aug. 10, 2015), the Tenth Circuit Court of Appeals confirmed that a single payment made by a debtor within the 90-day preference...more

“BRING IT ON!”: Sixth Circuit OKs Copyright Claims for Cheerleader Uniform’s Design

On August 19, 2015, the Sixth Circuit Court of Appeals issued a “V-I-C-T-O-R-Y” for the world’s largest designer and manufacturer of cheerleader uniforms in its copyright infringement lawsuit against another cheerleading gear...more

5 Ways to Challenge a Grant of Summary Judgment

When a summary judgment motion is granted and you’re representing the opposing party, you have a few choices in how to respond. You can challenge the grant directly in the trial court by one of four motions or wait to appeal...more

Dr. Posner Will See You Now: 7th Circuit Judges Reignite a Spirited Debate over Judicial Internet Research

The fat was really thrown into the fire in the Seventh Circuit on August 19, 2015 on the long-mooted subject of the propriety of internet factual research by appellate courts. Judge Richard Posner, who often chafes...more

It’s Illegal to Sing Happy Birthday?

Some years ago, Aaron Sorkin (bar none the greatest television writer of all time) spent a few minutes of an episode of Sports Night making light of the fact that the song “Happy Birthday” is outside the public domain....more

Summary Judgment Of Invalidity Is Granted

The disputed technology relates to a method of finishing a tracked semiconductor wafer. Defendant argues that a prior art reference “Sun” incorporates by reference other prior art “Litvak.” The court first determines that it...more

Reinsurer’s Motion For Reconsideration Over Liability Caps Denied

In a case on which we previously reported, a federal court in New York recently denied plaintiff insurer’s motion to reconsider the court’s order granting defendant reinsurer’s motion for partial summary judgment. In that...more

District Court Invalidates NYC Ordinance Making Banks Service Under-Served Areas as Requirement to Receive Municipal Deposits

On August 7, the U.S. District Court for the Southern District of New York granted summary judgment for the New York Bankers Association (NYBA) in a case challenging the City of New York’s Local Law 38, entitled the...more

Sequenom Requests Rehearing En Banc

Earlier this summer, in Ariosa Diagnostics, Inc. v. Sequenom, Inc., the Federal Circuit affirmed a decision by the District Court for the Northern District of California granting summary judgment of invalidity of the asserted...more

Does a title company owe a duty of care to third parties in the recording of legal instruments?

This is precisely the question that the Ninth Circuit recently certified to the Washington Supreme Court in Centurion Properties III, LLC v. Chicago Title Ins. Co. Facts of the Case - In this case, Centurion...more

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