News & Analysis as of

Summary Judgment

May 2018: Trial Practice Update

Trial Report: Using Discovery and Trial Testimony to Turn a Defeat at Summary Judgment into a Victory at Trial. Quinn Emanuel recently secured a groundbreaking victory after trial in the Delaware Court of Chancery for its...more

The Saga Continues: Fourth Post-ACA Int’l Case on ATDS Functionality Holds FCC’s 2003 Ruling “Still Stands”

by Womble Bond Dickinson on

The saga continues in the post-ACA Int’l fight over ATDS functionality. Eric described Bad Reyes as the Empire Strikes Back. If that’s the case then that makes Marshall A New Hope, and Herrick the Return of the Jedi. Now...more

On to Trial—Summary Judgment Denied to Facebook in Privacy Litigation

The litigation over Facebook’s Tag Suggestions feature in the United State District Court for the Northern District of California continues, with the court this week denying both sides’ bids for summary judgment in a ten-page...more

Summary Judgment for Maryland “By the Book” Insurer on Bad Faith Claim

Baltimore citizens may recall the salacious circumstances of the underlying action giving rise to Hussy v. Hous. Auth. of Baltimore City, 2018 WL 1947049, *8-9 (D. Md. Apr. 24, 2018), under which Mr. Hussy, among other...more

Employer Can Give Employee Option to Work During FMLA Leave

The Family and Medical Leave Act gives eligible employees an entitlement of up to 12 weeks of job-protected leave. The employer cannot require the employee to work during this time, and insistence by the employer that the...more

Your TCPA Settlements Can’t and Won’t Be Used Against You in a Court of Law (Probably)

by Womble Bond Dickinson on

TCPA Plaintiffs often utilize overly broad discovery demands in an effort to bludgeon a caller into settling an otherwise meritless case. One of the most common tactics is serving boilerplate demands seeking a Defendant’s...more

ERISA’s Duty To Inform – Distinguishing Between Existing and Possible Benefits

A recent ERISA opinion gives us occasion to point out the important distinction under ERISA concerning fiduciary duties as they pertain to existing benefits and possible benefits. In this case, the plaintiff alleged that...more

What Is Preservation?

by Zapproved LLC on

Understanding the legal hold stage of discovery - Preservation is the process of keeping physical items and electronically stored information (ESI) intact for discovery during litigation. To preserve potential evidence,...more

Seventh Circuit Reverses Grant of Summary Judgment as Premature

Reversing dismissal of a Telephone Consumer Protection Act (TCPA) class action, the U.S. Court of Appeals, Seventh Circuit ruled that a plaintiff should have been afforded the opportunity to conduct discovery before his claim...more

New York Court Applies the HEAR Act, Orders Return of Nazi-Looted Art

by Wilson Elser on

The decision in Reif v. Nagy, Sup. Ct. N.Y. City, April 5, 2018, has wide-ranging implications for litigation relating to art that was lost or stolen in the Holocaust. Justice Ramos of the Commercial Division of the Supreme...more

Second Circuit Affirms Summary Judgment in Hip Repair Product Liability Action

by Harris Beach PLLC on

Harris Beach attorneys Judi Abbott Curry, Victoria A. Graffeo and Marina Plotkin prevailed on plaintiffs’ appeal to the Second Circuit of product liability failure to warn claims against Pioneer Surgical Technology, Inc. and...more

Texas Court of Appeals Confirms That, in Order to “Bring Suit” Within the Statute of Limitations Period, a Plaintiff Must Exercise...

by White and Williams LLP on

In Molina v. Gears, 2018 Tex. App. LEXIS 1978 (March 20, 2018), the Texas Court of Appeals addressed the issue of whether a plaintiff who timely-filed a complaint exercised due diligence with respect to serving the complaint....more

Comparative Negligence No Longer Bars Plaintiff From Award of Summary Judgment in New York

by K&L Gates LLP on

On April 3, 2018, a sharply divided Court of Appeals ruled that plaintiffs in comparative negligence cases do not need to show they are free of negligence to succeed on a summary judgment motion when determining a defendant’s...more

Northern District of Ohio Follows Second Circuit's Reyes Decision

by Burr & Forman on

In Barton v. Credit One Financial d/b/a Credit One Bank, No. 16CV2652, 2018 WL 2012876, (N.D. Ohio April 30, 2018), the Northern District of Ohio followed the Second Circuit’s decision in Reyes v. Lincoln Automotive Financial...more

New Strategies for Winning Dismissal of a Failure to Warn Claim: Wu Jiang v. Ridge Tool Company

A recent decision granting summary judgment for the defendant presents a compelling model for successfully defeating a failure to warn claim. Wu Jiang v. Ridge Tool Company, et. al, decided by the Honorable Rosalynn R....more

Read the Fine Print When Using Product Literature for Marking

In the last issue, we discussed patent marking basics and issues related to licensee marking. A recent district court summary judgment decision provides another reminder regarding licensee marking and whether marking product...more

Wal-Mart’s $32.5 Million BACKYARD Brawl

Legal departments sometimes get a bad reputation for saying “no” too often. A “no” from legal is particularly hard to stomach when you think the potential legal risk is farfetched. In this dispute, Wal-Mart must have decided...more

Rx IP Update - April 2018

by Smart & Biggar on

Standing Committee on Health proposes National Pharmacare program, modifications to prescription and generic drug pricing - While common among member countries of the Organisation for Economic Co-operation and Development...more

Sports Torts and Courts

by Butler Snow LLP on

Who has not been injured in a recreational, athletic activity? Who has not accidentally injured someone else in the course of play? We all have … an errant softball throw, a shanked iron, a bouncing horseshoe. We enjoy the...more

Summary Judgment Rulings On Duty And Causation Elements Taco Truck And Apartment Fire Cases

by Low, Ball & Lynch on

Travis Sakai v. Massco Investments, LLC - Court of Appeal, Second Appellate District (February 8, 2018) - Taco Truck Case re: Duty - Defendant Massco Investments LLC (Massco) owned a gas station with a parking lot...more

The Defendant-Friendly Confines of Federal Court in Indiana Premises Liability Cases

by Reminger Co., LPA on

Being in federal court, rather than Indiana state court, can be advantageous for a defendant seeking summary judgment, especially in a premises liability case. ...more

Fourth Circuit Finds Employer Cannot Compel Arbitration of Former Employee’s Discrimination Claims

by Carlton Fields on

The U.S. Court of Appeals for the Fourth Circuit recently ruled that two employment-related arbitration clauses did not “clearly and unmistakably” govern a former employee’s discrimination claims, and that the arbitrability...more

John Bean Technologies Corporation v. Morris & Associates, Inc

by Knobbe Martens on

Federal Circuit Summaries - Before Prost, Reyna, and Wallach. Appeal from the United States District Court for the Eastern District of Arkansas. Summary: Pre-reexamination conduct cannot be a basis for equitable...more

New York Federal Court Largely Denies Motions for Summary Judgment on Issues in Breach of Facultative Reinsurance Certificate...

by Carlton Fields on

Defendant, Munich Re, moved for summary judgment relating to defense costs and allocation and Plaintiff, Utica, moved for summary judgment as to Munich Re’s claim for reimbursement. The Court denied the motions with the...more

The Eleventh Circuit Strengthens the Third District Court of Appeal's Decision in Cheetham: Know Thy Policy Terms

In Cameron v. Scottsdale Insurance Company, No. 17-11907, 2018 WL 1791889, at *1 (11th Cir. Apr. 16, 2018), the Eleventh Circuit vacated the lower court’s grant of summary judgment in favor of the insurer and relied on...more

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