Judges and jurists alike champion the notion that rehearings should be used sparingly and only when the conditions are just right. A lesser known concept is that sometimes a motion for rehearing is absolutely necessary to...more
Many jurisdictions have rules that allow an appellate court to affirm a judgment for any reason supported by the record, regardless of the actual basis articulated by the trial court. This general rule, however, is not...more
We previously wrote about the requirements many jurisdictions impose for affidavits or declarations submitted in conjunction with motions for summary judgment, including that they must be based on personal knowledge, show the...more
In nearly all areas of the law, the parties’ submission of proposed orders to the trial court is a ubiquitous and long-standing practice. And for nearly just as long, the judiciary has recognized the significant due process...more
We previously posted on Federal Rule of Appellate Procedure 28(i), which is the rule governing the adoption of part or all of another’s brief.
We initially looked at decisions addressing the burden on a party to...more
Is the appeal of a preliminary injunction rendered moot when the prevailing plaintiff ceases the activities that originally gave rise to its need for an injunction? Not necessarily, according to the Eleventh Circuit’s...more
A recent 104-page opinion from the Eleventh Circuit Court of Appeals in Carrizosa v. Chiquita Brands International Inc. provides a tutorial on a wide variety of federal evidentiary, summary judgment, expert, and preservation...more
We previously wrote about the requirements for joining in a co-party’s brief or motion to avoid waiver issues. Since our original post, federal appellate courts have continued to hold that a party who seeks to adopt the...more
We previously wrote here about the three "musts" for an affidavit or declaration in Florida: it must be based on personal knowledge, it must contain facts as would be admissible in evidence, and it must demonstrate the...more
Florida’s Second District Court of Appeal recently issued a decision that serves as a reminder not to take for granted a proposition that most practicing attorneys regularly encounter: a motion for summary judgment must be...more
2/7/2020
/ Affidavits ,
Appeals ,
Breach of Contract ,
Denial of Insurance Coverage ,
Evidence ,
Homeowner's Insurance ,
Insurance Claims ,
Insurance Litigation ,
Policy Terms ,
Property Damage ,
Reversal ,
Summary Judgment ,
Water Damage
In almost every situation, a party would prefer to defend a favorable judgment on appeal rather than fight to reverse a negative judgment. And when we are forced to be the appellant, we want the error in the challenged...more
In the last month, plaintiffs have filed a spate of consumer class actions against manufacturers of cannabis-based products. Specifically, plaintiffs have focused on manufacturers of CBD products, claiming the amount of CBD...more
10/14/2019
/ Agribusiness ,
Ascertainable Class ,
Cannabidiol (CBD) oil ,
Cannabis Products ,
Class Action ,
Class Certification ,
Common Law Claims ,
Farms ,
FRCP 23 ,
Marijuana Related Businesses ,
Retail Market
A fundamental principle of preservation is that the lower court must have had an opportunity to address an issue before an appellate court will reverse an order based on that issue. ...more
Challenging an adverse judgment on appeal is an uphill battle from the start. A major part of winning an appeal requires demonstrating that an error occurred and confirming that the error was properly raised in the trial...more
Even apart from the importance of assuring appellate review, properly preserving the record and carefully laying out one’s argument can have an immediate impact at the trial level.
Very often, a litigator comes across a...more
Joining in a co-party’s brief or motion can be cost effective, but the careful litigator should make sure to explain to the court how the other party’s arguments apply to your client. Failure to do so may result in waiver, as...more
Most practitioners would agree that, if the court excludes an expert based on a Daubert challenge—and that is the only expert opining on a subject—then in most instances there should be no need to proffer the expert’s...more
As part of its defense at trial in a foreclosure action, the defendants asserted that the plaintiff bank failed to satisfy the condition precedent of providing notice and an opportunity to cure before filing its complaint, as...more
The District Court for the Southern District of California certified a consumer class asserting violations of the Telephone Consumer Protection Act (“TCPA”) by defendant Bennett Law, PLLC. Plaintiff alleged that she received...more
A group of registered nurses formerly employed by the Department of Veterans Affairs sued the United States Office of Personnel Management (“OPM”) in a putative class action seeking declaratory and injunctive relief in...more
Plaintiff sued for underpayment or nonpayment of royalties on natural gas produced from wells in Kansas due to defendant’s failure to place the gas in marketable condition. The district court initially certified the class in...more
7/23/2014
The District Court for the Southern District of California denied certification in a California consumer class action in which Plaintiffs’ claimed that Maybelline falsely labeled and advertised its “SuperStay 24HR” makeup as...more
In what may become a more common trend in CAFA litigation based on the Supreme Court’s decision in Standard Fire Ins. Co. v. Knowles, ––– U.S. ––––, 133 S.Ct. 1345 (2013), the Seventh Circuit reversed the district court’s...more
This continues our series of blog posts on effective partnering between inside and outside counsel to defend against class action lawsuits.
Inside and outside counsel should have different but complimentary roles in...more
The plaintiffs—cruise passengers on the ill-fated Costa Concordia—filed two separate lawsuits, neither of which contained more than 100 plaintiffs....more