On April 29, 2020, the Ninth Circuit Court of Appeals denied a petition for en banc review in a case that raised a takings clause claim that the state of California appropriated private property by requiring certain access to...more
The First Circuit Court of Appeals recently confronted the "frontiers of personal jurisdiction in the internet age" in Chen v. United States Sports Academy Inc. There, the court was faced with a dilemma: applying personal...more
Does reporting for work require physically showing up at the place ready to work? The Ninth Circuit just confronted this issue. It decided that California’s Wage Order No. 7-2001 does not require an employee to report to work...more
The Ninth Circuit Court of Appeals recently underscored that removal practice under the Class Action Fairness Act (CAFA) differs in some important respects from traditional removal practice in non-CAFA cases. It did so...more
10/30/2019
/ Amount in Controversy ,
Appeals ,
Attorney's Fees ,
CAFA ,
Class Action ,
Dart Cherokee Basin Operating Co. v. Owens ,
Employment Litigation ,
Federal Jurisdiction ,
Hospitality Industry ,
Marriott ,
Putative Class Actions ,
Remand ,
Removal ,
Rest and Meal Break ,
Sua Sponte ,
Unpaid Wages ,
Wage and Hour ,
Wage Statements
The equitable doctrine of judicial estoppel prevents a party from asserting a claim in a legal proceeding that is inconsistent with a claim taken by that party in a previous proceeding. Generally, the doctrine is raised by a...more
7/3/2019
/ Affirmative Defenses ,
Appeals ,
Judicial Discretion ,
Judicial Estoppel ,
Judicial Review ,
Litigation Strategies ,
Permissive Exclusion Authority ,
Preservation of Rights ,
Subject Matter Jurisdiction ,
Trial Preparation ,
Waivers
On October 3, the Eleventh Circuit Court of Appeals affirmed the district court’s approval of a class settlement, an award of attorney’s fees to class counsel, and the provision of an incentive award for the class...more
Your client has brought you an appeal, and you quickly spot what looks like a winning argument. Unfortunately, it was never raised or argued below. Being a savvy appellate lawyer, you understand you cannot raise it for the...more
On September 19th, the Eleventh Circuit Court of Appeals resolved a question of first impression in the circuit: whether the availability of the class action mechanism is a question of arbitrability that presumptively should...more
In 2017, the Eighth Circuit reversed the certification of a settlement class in the Target 2013 security breach litigation. See In re Target Corp. Customer Data Sec. Breach Litig., 847 F.3d 608, 613 (8th Cir. 2017). ...more
It’s a cardinal rule that to preserve an argument at trial, counsel must make a contemporaneous objection. Even cardinal rules, however, have their exceptions....more
Last year at this time, we posted about two recent orders from a federal judge in Arkansas that found Rule 11 violations and abuses of the judicial process by attorneys for both the plaintiffs and the defense. Specifically,...more
On June 28, 2017, Bruce Berman and Steve Blickensderfer posted in this space about the Supreme Court’s recent decision in California Public Employees Retirement System v. ANZ Securities, Inc., 137 S. Ct. 2042 (2017). In that...more
Home Depot filed a certiorari petition in the United States Supreme Court aimed at closing an emerging loophole in CAFA jurisprudence in various circuits. According to the petition, some circuits have “narrowly construed...more
The Second Circuit Court of Appeals recently confronted (again) a situation where a defendant made an offer of judgment to the putative class representative to provide all of the relief available to the individual plaintiff....more
On March 16, 2017, the Southern District of California certified a class action against the manufacturer of gingko biloba and Costco Wholesale Corporation, the seller.
Plaintiff alleged, on behalf of a putative class of...more
Noodle this: Two significant orders on class certification in antitrust matters issued last week. Both were heavily influenced by the threshold determination of Daubert challenges to the plaintiffs’ expert evidence. In one...more
2/20/2017
/ Antitrust Provisions ,
Class Action ,
Class Certification ,
Comcast v. Behrend ,
Competition ,
Daubert Standards ,
Expert Testimony ,
FRCP 56 ,
Motion to Exclude ,
Pharmaceutical Industry ,
Pharmacies ,
Price-Fixing ,
Reimbursements ,
Young Lawyers
On January 31, President Trump announced that Judge Neil Gorsuch of the Tenth Circuit Court of Appeals would be nominated for the United States Supreme Court. We took a look at those opinions authored by Judge Gorsuch on the...more
2/6/2017
/ Abuse of Discretion ,
Article III ,
Attorney General ,
BP ,
CAFA ,
Class Action ,
FRCP 23(b)(2) ,
Judicial Appointments ,
Justice Scalia ,
Neil Gorsuch ,
Nominations ,
SCOTUS ,
Sherman Act ,
Standing ,
Trump Administration
On November 21, 2016, the First Circuit offered practitioners yet another reminder that, as the charges and verdict form evolve through colloquys with the trial judge, there is a continuing obligation to object; the timing of...more
An unpublished opinion from the Tenth Circuit Court of Appeals in January 2016 caught our eye because it collected various established preservation-of-error principles for objecting to a magistrate judge's report and...more
May you preserve an objection to personal jurisdiction by including a general denial to the complaint’s allegation in your answer and then moving to dismiss on personal jurisdiction grounds less than three (3) months later?...more
Your summary judgment motion was denied. You have proceeded to trial. You are preparing a Rule 50 motion. Should you include those issues raised in your denied summary judgment motion? Must you do so?...more
The Eleventh Circuit’s decision in Dudley v. Eli Lilly and Co., 2014 WL 7360016 (11th Cir. Dec. 29, 2014), highlights the risk of waiving (or, at a minimum, postponing) an otherwise proper removal by not creating a proper...more
Monday, the United States Supreme Court denied certiorari in Khan v. Chowdhury, Case No. 13-1479. Notwithstanding the denial, this case is notable, as it highlights a recurring issue in preserving error for appeal: proposing...more
On January 1, 2012, we published “The CAFA Year in (Appellate) Review: A Look Back at the Class Action Fairness Act in the Circuit Courts of Appeals in 2011.”...more
In Farkas v. Nat'l Union Fire Ins. Co. of Pittsburgh, PA, No. 12-1481, 2013 WL 1459248 (4th Cir. Apr 11, 2013), the Fourth Circuit Court of Appeals affirmed a decision that put teeth into the "in fact" exclusions of a...more