News & Analysis as of

Prejudice

McDermott Will & Emery

Go Home: No “Prevailing Party” Status After Voluntary Dismissal Without Prejudice

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The US Court of Appeals for the Eleventh Circuit affirmed a district court’s ruling that a copyright holder’s voluntary dismissal of its claims did not render the defendant a prevailing party entitled to attorneys’ fees under...more

Jackson Lewis P.C.

Prejudice Not Required: California Supreme Court Eases Standard for Waiving Arbitration Rights

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California courts, like most federal courts, have historically held that a party does not waive its contractual right to compel arbitration unless the party opposing arbitration has been prejudiced by the moving party’s delay...more

CDF Labor Law LLP

No Showing of Prejudice Required to Argue Waiver of Right to Arbitration

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Many California employers require their employees to sign agreements to submit any disputes arising out their employment to binding arbitration. If an employee files a lawsuit in court, the employer then has the option of...more

Mitchell, Williams, Selig, Gates & Woodyard,...

Drain Tile System/Adjacent Landowner: Vermont Supreme Court Addresses Issues Arising in Nuisance/Trespass Action

The Supreme Court of Vermont (“Supreme Court”) in a May 24th opinion addressed issues stemming from a dairy farm’s installation of a drain tile system that discharged water into a streambed and lake allegedly affecting  a...more

Constangy, Brooks, Smith & Prophete, LLP

Employer “waived” bye-bye to arbitration after litigating for 7 months

A federal appeals court recently refused to let a mortgage broker send its former employee’s disability discrimination lawsuit to arbitration, stating the company waived its right to arbitration when it actively participated...more

Miller Canfield

A Lil’ Too Late - U.S. Court of Appeals for the Sixth Circuit Refuses to Compel Arbitration After Company Litigates Case for 7...

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When has a party waived its contractual right to arbitrate? Until recently, most federal Courts of Appeal—including the Sixth Circuit— held that a party who participates in litigation (e.g., by serving and responding to...more

Lasher Holzapfel Sperry & Ebberson PLLC

The Nuts and Bolts of Appeals: Preservation, Prejudice, and Presentation

People appeal their case because they want a better outcome then what they received at trial. Maybe that means that the appealing party lost a jury verdict, or felt that they didn’t “win” enough at trial. Perhaps someone in...more

BCLP

Adjudication Decision Rendered Unenforceable Due to Inadmissible Without Prejudice Material

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Without prejudice is a phrase often used in communications between parties seeking to reach settlement. Whether or not communications will be regarded as without prejudice will depend on their substance and we recently looked...more

Morrison & Foerster LLP

Sonos v. Google Breathes New Life into Prosecution Laches Doctrine

A recent district court decision in Sonos v. Google has set forth a novel application of the prosecution laches doctrine to a patent with a post-1995 priority date. Sonos Inc. v. Google LLC, 20-06754 WHA, 2023 WL 6542320...more

Wiley Rein LLP

Insurer Must Show Prejudice to Deny Coverage for Untimely Notice Under Claims-Made Policy

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The United States District Court for the Central District of California, applying California law, has held that an insurer must show prejudice to deny coverage for untimely notice under a claims-made policy....more

Lowenstein Sandler LLP

Second Circuit Rejects Judge Rakoff’s Long-Standing Practice of Abbreviated Voir Dire

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Yesterday, the Second Circuit rejected U.S. District Judge Jed S. Rakoff’s typical voir dire process and vacated a defendant’s criminal conviction, remanding the case for a new trial (United States v. Nieves, 2d Cir. Jan. 26,...more

McDermott Will & Emery

Bursting the Bubble on Prosecution Delays

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Addressing a case where a patent owner filed hundreds of applications as part of a strategy to maintain extraordinarily lengthy patent coverage, the US Court of Appeals for the Federal Circuit affirmed a district court’s...more

Stikeman Elliott LLP

Extending the Time to Opt Out of a Class Action? Ontario Court of Appeal Provides Guidance on Applicable Test

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In Johnson v. Ontario, the Ontario Court of Appeal (the “Court”) allowed for the extension of time within which the appellant could opt out of a class action. In doing so, the Court provided welcome appellate guidance on the...more

Fox Rothschild LLP

Homebuilders' Victory in Pennsylvania Could Have Implications in Other States

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Good news for homebuilders in Pennsylvania. The Pennsylvania Superior Court earlier this month affirmed a trial court order that awarded judgment on the pleadings in favor of the builder and dismissing the homeowners’...more

Roetzel & Andress

Limited English, Limited Defenses (Potentially…)

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The U.S. court system has long recognized the difficulty with equal access to justice when an individual with limited English proficiency appears in a U.S. court. Therefore, courts across the country now require that...more

Wiley Rein LLP

Third Circuit Holds No Showing of Prejudice Required Under Delaware Law to Enforce Late Notice Provision in Claims-Made Policy

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The United States Court of Appeals for the Third Circuit, applying Delaware law, has held that an insurer was not obligated to provide coverage where the insured had provided notice of its claim after the end of the relevant...more

Dunlap Bennett & Ludwig PLLC

Prejudice Not Presumed Despite Arbitrary and Capricious Decision by Agency

In a recent decision by the U.S. Court of Appeals for the Federal Circuit (CAFC), System Studies & Simulation, Inc. v. U.S., No. 2021-1469 (Fed. Cir. Dec. 30, 2021), the CAFC issued an important decision holding that...more

Amundsen Davis LLC

Employers Must Tread Carefully In FMLA Request Discussions To Avoid FMLA Interference Claims

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The federal Family and Medical Leave Act (FMLA) provides employees essentially two paths to bring lawsuits for alleged FMLA violations: retaliation claims and interference claims....more

Baker Donelson

The Third District Court of Appeal Affirms Carrier's Prejudice/Late-Notice Defense

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One of a policyholder's primary contractual duties after suffering a potential loss is to provide prompt notice to the insurer. Prompt notice is often described as a condition precedent to insurance coverage. In fact, Florida...more

Proskauer - Minding Your Business

Supreme Court Rules on the Requirements for a Waiver of the Right to Arbitrate

The United States Supreme Court recently resolved a circuit split regarding when a party has waived its contractual right to arbitrate by participating in litigation prior to seeking to arbitrate a dispute. In Morgan v....more

Miller Nash LLP

Use it or Lose it: SCOTUS Eases Arbitration Waiver Analysis in Most Circuits, States

Miller Nash LLP on

Many contracts these days, including employment contracts, have provisions requiring that disputes be arbitrated rather than filed in a court. Nevertheless, a party to such an agreement will often file a lawsuit in court, and...more

Smith Anderson

Does the Federal Arbitration Act Favor Arbitration?

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A recent decision of the United States Supreme Court addressed a circuit split regarding the propriety of arbitration-specific procedural rules. In support of adopting such rules, nine of the eleven federal circuits...more

Foley & Lardner LLP

U.S. Supreme Court Unanimously Rules that Waiver of Arbitration Right Does Not Require a Showing of Prejudice

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In a May 23, 2022 unanimous decision, the United States Supreme Court ruled a showing that the other side has been prejudiced by a delay is not required for a party that has proceeded with litigation to waive its contractual...more

Smith Gambrell Russell

Unanimous U.S. Supreme Court Rejects Prejudice Requirement for Arbitration Waiver

On May 23, 2022, the U.S. Supreme Court considered the question of waiver in a case governed by the Federal Arbitration Act (“FAA”) and held that a party can waive its right to arbitration irrespective of whether the other...more

Kohrman Jackson & Krantz LLP

Supreme Court Makes It Easier to Challenge Delayed Arbitration Request

Resolving an issue over when a party has waived their right to arbitrate, the United States Supreme Court recently granted plaintiff’s a major victory, holding that litigants are no longer required to show prejudice when...more

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