A Utah federal court recently held that when negotiating a pass-through settlement agreement, a contractor has a duty to disclose information to its subcontractor regarding the viability of the claims to be passed through....more
Recently, the Oregon Court of Appeals reinstated a contractor’s mechanics lien claim notwithstanding the owner’s offer of payment because the offer was conditioned on the contractor signing a broad lien waiver that would have...more
1/2/2024
/ Appeals ,
Construction Contracts ,
Construction Industry ,
Construction Liens ,
Construction Litigation ,
Foreclosure ,
General Contractors ,
Liens ,
Mechanics Lien ,
Oregon ,
Property Owners
A fundamental premise of contract law is that promises must be kept. If legally enforceable promises or “contracts” are not kept, courts may step in to enforce them by ordering performance, awarding damages, or granting some...more
10/6/2023
/ Breach of Contract ,
Business Interruption ,
Construction Contracts ,
Construction Industry ,
Construction Litigation ,
Contract Interpretation ,
Contract Terms ,
Coronavirus/COVID-19 ,
Damages ,
General Contractors ,
Subcontractors
The “American Rule” on attorneys’ fees is that each party pays its own lawyers, even if you win. As with almost any rule, there are exceptions. Sometimes there is a statute that requires the losing party to pay the prevailing...more
Many contracts contain provisions requiring that changes to a contract be in writing and signed by a particular authorized person. Under such provisions, work done without proper written authorization will not be...more
The next state in our series exploring non-compete agreements is Alabama. The Yellowhammer State has a fulsome history of litigation (resulting in many reported decisions) involving non-competes and other post-employment...more
The Eleventh Circuit last month issued a significant class action opinion in Cordoba v. DirectTV, LLC, vacating a class certified in a TCPA class action and remanding the case. The issue underlying the court’s decision was...more
Does a state, whose citizens are among the absent class members in a class action settlement, have Article III standing to challenge the supposed unfairness of the settlement? In Chapman v. Tristar Products, Inc., the Sixth...more
10/22/2019
/ Appeals ,
Article III ,
CAFA ,
Class Action ,
Class Members ,
Department of Justice (DOJ) ,
FRCP 24 ,
Injury-in-Fact ,
Lack of Jurisdiction ,
Objection Procedures ,
Parens Patriae ,
Regulatory Authority ,
Settlement ,
Standing ,
State Regulators
Two recent studies by the FTC show that some methods for notifying potential class members of class action settlements are not as effective as courts and counsel might believe. In September, the FTC published a report on two...more
Parties in today’s complex litigation world, and their counsel, need no reminder of the ubiquity of electronic discovery and the tremendous expense it occasions. Even before 2006, when “electronically stored information”...more
9/13/2019
/ Attorney's Fees ,
Case Management ,
Complex Litigation ,
Discovery ,
Document Productions ,
e-Discovery Professionals ,
Electronically Stored Information ,
Federal Rules of Civil Procedure ,
FRCP 26 ,
Litigation Fees & Costs ,
Metadata
In the digital age, the internet not infrequently stretches the bounds of traditional jurisprudence and raises tricky new questions. An example from earlier this year is Vangheluwe v. GotNews, LLC, where a federal court in...more
9/5/2019
/ Cyber Attacks ,
Defamation ,
Internet ,
Motion to Dismiss ,
News Stories ,
Personal Jurisdiction ,
Public Records ,
Retaliation ,
Social Media ,
Twitter ,
Walden v Fiore
While a war rages on the issue of standing in data breach cases, the need to prove damages is presenting an even greater hurdle for plaintiffs, as we have noted previously. One clear illustration of this trend is Attias v....more
8/27/2019
/ Actual Damages ,
Appeals ,
Article III ,
Class Action ,
Class Certification ,
Corporate Counsel ,
Data Breach ,
Dismissals ,
Economic Loss Doctrine ,
Jurisdiction ,
Remand ,
Standing
As we have noted before, whether a claimant under the Telephone Consumer Protection Act (TCPA) gave “prior express consent” to receiving communications from the defendant is frequently a critical issue (and often the only...more
Bucking a recent trend and departing from both the Second Circuit’s Katz decision and the Third Circuit’s Kamal decision, the Eleventh Circuit found that a plaintiff had standing to settle a FACTA claim on behalf of a class....more
Yesterday, the Supreme Court sent Frank v. Gaos back to the Ninth Circuit to address the issue of standing under Spokeo.
Frank involved allegations of privacy violations. Plaintiffs brought class action claims against...more
Courts are still going both ways on applying Bristol-Myers Squibb to class actions. Two recent decisions highlight this split.
The first—and we’ll always start with the good news—comes out of the District of Massachusetts...more
Earlier this year, the Supreme Court in China Agritech Inc. v. Resh conclusively established that equitable tolling of the statute of limitations for putative class members – known as American Pipe tolling – applies only to...more
The Ninth Circuit’s decision not to grant en banc rehearing in Sali v. Corona Regional Medical Center should all but guarantee that the issue of expert testimony at the class certification stage is heading to the Supreme...more
These are interesting times at the Supreme Court for class certification defendants—and we aren’t talking about the Kavanaugh confirmation process. No, late last week, in Home Depot USA Inc. v. George Jackson, the Supreme...more
10/3/2018
/ CAFA ,
Certiorari ,
Class Action ,
Co-Defendants ,
Counterclaims ,
Federal Rules of Civil Procedure ,
General Removal Provisions ,
Home Depot USA Inc v Jackson ,
Remand ,
Removal ,
SCOTUS ,
Third-Party
A critical question in Telephone Consumer Protection Act (TCPA) cases is whether the plaintiff gave consent to receive communications from the defendant, and whether that consent had been revoked by the time of the...more
The Eleventh Circuit has held that, absent express language to the contrary in the arbitration agreement itself, whether class arbitration is permitted under an arbitration agreement selecting American Arbitration Association...more
Consumer data breach class actions, for all of their popularity on dockets and especially in headlines, can make difficult cases for plaintiffs. Issues like standing and damages often keep these cases from getting off the...more
8/23/2018
/ Article III ,
Causation ,
Class Action ,
Class Certification ,
Cybersecurity ,
Data Breach ,
Data Privacy ,
Data Protection ,
Data Security ,
Hackers ,
Identity Theft ,
Personally Identifiable Information ,
Popular ,
Predominance Requirement ,
Standing
While he often kept us guessing about how he might vote in politically significant cases, retiring Justice Anthony Kennedy was far more predictable on class action issues over the course of his 30-year tenure on the Supreme...more
7/19/2018
/ Article III ,
CAFA ,
Class Action ,
Class Action Arbitration Waivers ,
Class Certification ,
Federal Arbitration Act ,
FRCP 23 ,
Mass Tort Litigation ,
Personal Jurisdiction ,
Presidential Nominations ,
SCOTUS
Spokeo v. Robins – which confirmed that a plaintiff’s allegation of a defendant’s statutory violation without accompanying concrete harm fails to satisfy Article III’s “case or controversy” requirement – has brought the issue...more
5/29/2018
/ Actual Injuries ,
Article III ,
Class Action ,
Corporate Counsel ,
Debit and Credit Card Transactions ,
FACTA ,
Federal Rule 12(b)(1) ,
Forum ,
FRCP 23 ,
Injury-in-Fact ,
Remand ,
Spokeo v Robins ,
Standing ,
Statutory Violations ,
Subject Matter Jurisdiction
We recently commented on one hotly contested legal issue being addressed by the courts in data breach class action litigation, that of plaintiffs’ standing. Another issue that has been the subject of recent court activity in...more
5/17/2018
/ Banking Sector ,
Class Action ,
Common Law Torts ,
Credit Cards ,
Cybersecurity ,
Data Breach ,
Data Protection ,
Dismissals ,
Economic Loss Doctrine ,
Financial Institutions ,
Merchants ,
Personally Identifiable Information ,
Popular ,
Risk Management