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Admiralty

[06/25] Crescent Towing & Salvage Co. v. Chios Beauty MV
In an action for damages sustained when defendant's ship collided with plaintiffs' barges and tugboats during Hurricane Katrina, partial judgment for plaintiff is affirmed in part where the district court did not clearly err in its finding of a predicted "direct hit" on New Orleans by the hurricane, its factual findings based on this finding, and the ultimate finding of negligence to the extent that it relied upon this finding. However, the matter is remanded where the district court needed to enter an order setting the total amount of recovery plaintiffs could recover in rem.

[06/21] Kawasaki Kisen Kaisha Ltd. v. Regal-Beloit Corp.
In an action based on the alleged destruction of goods being shipped, the Ninth Circuit's reversal of the district court's dismissal of the action based on the fact that the parties' contract designated a Tokyo court as the venue for any dispute is reversed where, because the Carmack Amendment does not apply to a shipment originating overseas under a single through bill of lading, the parties' agreement to litigate these cases in Tokyo is binding.

[05/13] Valladolid v. Pac. Ops. Offshore, LP
In a petition for review of the denial of workers' compensation benefits under the Outer Continental Shelf Lands Act (OCSLA) and the Longshore and Harbor Workers' Compensation Act (LHWCA) based on an injury on an offshore drilling platform, the petition is granted in part where: 1) the most natural reading of the OCSLA provided coverage for any injury caused by outer continental shelf operations regardless of where the injury occurred; 2) Congress intended to provide LHWCA coverage regardless of the applicability of state law; and 3) the OCSLA claimant must establish a substantial nexus between the injury and extractive operations on the shelf. However, the petition is denied in part where petitioner was not entitled to LHWCA benefits, on the ground that the drilling platform's use as a convenient dumping ground for scrap metal did not convert it into a maritime situs.

[04/16] Harrington v. Atlantic Sounding Co.
In a personal injury action arising out of injuries sustained by plaintiff-seaman, the district court's order denying defendants' motion to dismiss or, in the alternative, to stay the district court action and compel arbitration, is vacated where section 6 of the Federal Employer's Liability Act did not apply to seamen's arbitration agreements, and thus the arbitration agreement was not unenforceable as a matter of law, and the district court's finding that the arbitration agreement was unenforceable due to unconscionability was erroneous.

[04/12] Crimson Yachts v. Betty Lyn II Motor Yacht
In an action seeking to enforce a maritime lien for major repairs plaintiff performed on a motor yacht, the dismissal of plaintiff's in rem claims against the yacht is reversed where the yacht constituted a vessel and, therefore, was subject to maritime liens and the court's admiralty jurisdiction.

[03/19] Borkowski v. F/V Madison Kate, Sea Ventures, LLC
In plaintiffs' suit alleging violations of federal maritime law and state wage laws, district court's judgment is affirmed but based on a different reason where: 1) to the extent the compensatory relief sought under section 10601 is premised on the claim that defendant improperly deducted expenses, there is no evidence upon which any fact-finder could conclude that the deductions were improper; 2) there is nothing in the record that supports an award of punitive damages; and 3) any argument that the district court wrongly decided the merits of the wage claim is considered waived.

[03/18] Bath Iron Works Corp. v. Fields
In plaintiff-employee's claim for disability benefits under the Longshore and Harbor Workers' Compensation Act (LHWCA), petition for review of the Benefits Review Board's decision affirming an award of the plaintiff's disability benefits based on section 20(a) of the LHWCA, which provides that certain disabilities are presumed to be work-related in the absence of substantial evidence to the contrary, is denied as the Board correctly concluded that defendant had not produced "substantial evidence" to rebut the presumption of causation between plaintiff's working conditions and his pain.

[03/15] N.Y. Marine & Gen. Ins. Co. v. Lafarge N. Am., Inc.
In an action by a barge operator against an insurer for defense costs associated with Hurricane Katrina-related damages, the district court's order (1) dismissing all causes of action brought against defendant, (2) granting plaintiff the fees and expenses of two of the three law firms it retained to defend Katrina-related actions, and (3) denying plaintiff's motion to transfer and its application for attorneys' fees, is affirmed in part where: 1) the locus of operative facts as well as the interests of efficiency and fairness favored a New York forum; 2) the term "otherwise" in the insurance policy did not include the kind of relationship associated with a shipowner's bailment to a terminal operator, which was at issue in this case; 3) plaintiff did not have a right to pursue independent counsel to defend the Katrina actions whose legal fees would be covered by the primary policy; 4) because summary judgment in favor of defendant was warranted based on the simple non-coverage of the barge under the policy, and because there was no dispute that the primary policy had been exhausted, the excess policy applied to cover expenses in excess of the primary policy's limits. However, the order is vacated in part where coverage for fees earned by both counsel, either as excess to defendant's primary policy or as initial coverage for plaintiff's independent counsel, was intended pursuant to the umbrella coverage provided by the excess policy.

[03/10] Fortis Corp. Ins. SA. v. Viken Ship Mgmt. AS
In a maritime shipping case involving a claim for rust damage to steel coils caused by exposure to seawater during a journey from Poland to Ohio, judgment of the district court is affirmed where: 1) a ship manager charged with providing a Master, officers and crew, and performing various other ship-management tasks for the shipping vessel does not qualify as a "carrier" under the Carriage of Goods by Sea Act (COGSA), and thus the COGSA's one year-statute of limitations does not bar the underlying suit; and 2) defendant's claim that the district court's finding of negligence was based on clearly erroneous factual findings is rejected.

[02/25] Bessemer & Lake Erie R.R. Co. v. Seaway Marine Transp.
In an admiralty action seeking recovery of repair costs and lost profits against a cargo ship after it struck a land-based coal-loading machine operated by plaintiff, judgment of the district court is affirmed in part, reversed in part and remanded where: 1) district court's grant of summary judgment as to liability is reversed as there is a genuine dispute of fact over plaintiff's comparative negligence; and 2) district court's rejection of plaintiff's lost-profits claim is affirmed as plaintiff did not adequately disclose the basis of its lost-profits claim.

[02/22] Cianbro Corp. v. George H. Dean, Inc.
In an in rem maritime lien action, district court's grant of summary judgment in favor of plaintiff and an order issuing a declaratory judgment to the effect that plaintiffs' vessels were not subject to a maritime lien in favor of defendant is affirmed as defendant failed to make the factual showing that it provided necessaries to the vessels as is required by 46 U.S.C. section 31342(a).

[02/03] ProShipLine Inc. v. Aspen Infrastructures Ltd.
In an action to secure a maritime attachment, district court's order denying plaintiff's motion to compel defendant to post security in lieu of garnishment is affirmed where a district court lacks the legal capacity under the Admiralty Rules to order a party to post security in lieu of garnishment. However, the district court's order equitably vacating plaintiffs' Rule B writ and exonerating security posted for that writ is reversed where the district court abused its discretion by concluding that it was bound by res judicata to vacate the writ to conform with the Southern District of New York's decision to vacate the writ involved in a related action pending there.

[01/28] Aqua Log, Inc. v. Georgia
In two in rem admiralty actions seeking to salvage logs lying at the bottom of Georgia's rivers, the district court's denial of the state's motion to dismiss based on sovereign immunity is affirmed where that doctrine did not apply because the state did not have possession of the logs.

[01/21] Misener Marine Constr., Inc. v. Norfolk Dredging Co.
In an action arising out of a dredging contract dispute, a district court's order denying attorney's fees to defendant-counterclaimant is affirmed where the American Rule barring the shifting of attorneys' fees was a characteristic feature of maritime law, which governed the interpretation of the contract between the parties.

[01/11] Equatorial Marine Fuel Mgmt. Servs. Pte. Ltd. v. MISC Berhad
In an appeal from the district court's order vacating a maritime attachment of defendant's property, the order is affirmed where the district court properly vacated the attachment because plaintiff failed to show it had a valid prima facie breach of contract or unjust enrichment claim against defendant.

[01/08] APL Co. Pte. Ltd. v. Blue Water Shipping U.S. Inc.
In an action for breach of contract based on expenses related to cargo shipped as agreed but left uncollected by its owner at the dock, judgment for plaintiff with a reduced damages award against defendant is vacated in part where the trial court's obligation was to determine whether the mitigation efforts actually chosen in those unaccustomed shoes were reasonable, not whether hindsight suggested that an objectively better choice was available.

[12/24] US v. Banjoko
Defendant's conviction for stowing away on a vessel that entered U.S. jurisdiction is affirmed where: 1) intent to be transported to the U.S. was not an element of the 18 U.S.C. section 2199 offense; and 2) Congress intended to apply section 2199 extraterritorially, as indicated by the statute's language.

[11/23] Lee v. Astoria Generating Co.
In an action for indemnification arising out of an accident that occurred on navigable waters, the Appellate Division's order reversing summary judgment for defendants is reversed where a barge containing an electricity generating turbine is a vessel under 33 U.S.C. section 905(b) of the Longshore and Harbor Workers' Compensation Act, and that provision preempted plaintiff's New York State Labor Law sections 240(1) and 241(6) claims.

[11/23] Sherwood v. Marquette Transp. Co., LLC
In plaintiff's suit against his employer under the Jones Act and general maritime law for injuries he suffered while working as a deckhand, defendant-employer's appeal of a district court's denial of its motion to stay the suit in favor of arbitration is dismissed for lack of jurisdiction under 9 U.S.C. section 16(a)(1)(A) as: 1) section 16 is part of the Federal Arbitration Act, and as such, under the language of section 1, does not apply to any employment contract involving a seaman; and 2) section also is inapplicable, and defendant's motion for a stay did not rely on it.

[11/13] Hawknet, Ltd. v. Overseas Shipping Agencies
In an appeal from the district court's order vacating the attachment of an electronic funds transfer (EFT), the order is affirmed and the case is remanded for an order to show cause why the action should not be dismissed for lack of personal jurisdiction where: 1) the rule announced recently in Shipping Corp. of India Ltd. v. Jaldhi Overseas Pte Ltd., __ F.3d __, No.08-3477, 2009 WL 3319675 (2d Cir. Oct. 16, 2009), applies retroactively; and 2) a party's failure to assert an argument prior to the announcement of a decision which might support it does not constitute waiver.

[11/05] Solana v. GSF Dev. Driller I
In an admiralty action for a percentage of the salvage value of a drilling unit, summary judgment for defendant is reversed where the record did not support the district court's conclusion that, as a matter of law, the parties agreed that the plaintiffs would be compensated in the same manner that they had previously been compensated by defendant.

[10/27] Becker v. Tidewater Inc.
In an action based on injuries sustained by plaintiff on an oil rig owned by one defendant and operated by another defendant, the district court's judgment holding the operator 55% liable for plaintiff's injuries and the owner 45% liable is affirmed in part where: 1) the reciprocal indemnity agreement between defendants obligated the operator to indemnify the owner for plaintiff's injuries; and 2) the district court did not clearly err in determining that the owner was not the superseding cause of the incident. However, the judgment is reversed in part where: 1) the operator's negligence in failing to properly warn employees how to operate certain machinery on the boat should not have been characterized by the district court as time-charterer negligence; and 2) the parties' agreement only entitled the owner to attorney's fees incurred in defending the underlying tort action. (Superseding opinion)

[10/21] Doyle v. Graske
In an action based on injuries sustained by plaintiff while on defendant's boat, judgment for plaintiff is affirmed in part where: 1) substantial evidence supported the district court's conclusion that defendant breached a duty of reasonable care if plaintiff was seated on the bow cushion when the boat came on plane; and 2) the district court's finding that defendant's negligence was a proximate and substantial cause of plaintiff's injuries was not clearly erroneous. However, the judgment is reversed in part where federal admiralty law did not allow for recovery of loss of consortium damages in negligence matters occurring outside territorial waters.

[10/16] Shipping Corp. of India Ltd. v. Jaldhi Overseas Pte Ltd.
In defendant's appeal from the district court's order vacating portions of an order of maritime attachment and garnishment, the order is affirmed in part where electronic fund transfers (EFTs) being processed by an intermediary bank are not property subject to attachment under Rule B of the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions. However, the court of appeals remands the cause for further proceedings with respect to the remaining portions of the attachment order affecting EFTs of which defendant was the originator.

[10/13] Great Lakes Reinsurance (UK) PLC v. Durham Auctions Inc.
In an action to declare void a policy of marine insurance, the court of appeals answered a certified question in favor of plaintiff where, under federal maritime choice of law rules, contractual choice of law provisions were generally recognized as valid and enforceable, and the parties chose New York law in the policy.

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Class Actions

[06/25] Lincoln Nat'l Life Ins., Co. v. Bezich
A petition for permission to appeal, arising from the district court's remand of plaintiff's class action lawsuit against an insurer for breach of contract claims on the basis that CAFA's exception to federal jurisdiction for the action applied, is dismissed for lack of jurisdiction as plaintiff's claim "related to the rights, duties,...and obligations relating to or created by or pursuant to...a security," as defined in the Securities Act of 1933.

[06/24] Faulkinbury v. Boyd & Assoc. Inc.
In a suit brought by about 4000 current and former employees against an employer, claiming that the company, which provides security guard services throughout Southern California, denied meal and rest breaks and failed to pay for overtime, trial court's denial of their motion for class certification is affirmed in part, reversed in part and remanded where: 1) order denying the motion for class certification as to the meal break class and the rest break class is affirmed as the trial court did not abuse its discretion in finding common issues of law and fact did not predominate over individual issues; and 2) order denying the motion for class certification as to the overtime-pay class is reversed and remanded.

[06/24] Brown v. Kelly
In a class action by persons allegedly arrested pursuant to an unconstitutional New York anti-begging statute, the district court's class certification order is affirmed in part where the citywide plaintiff class met the requirements of Federal Rules of Civil Procedure 23(a) and 23(b)(3). However, the order is reversed in part where the district court erred in certifying a statewide defendant class because the defendant class representatives did not meet the adequacy and typicality requirements of Federal Rule of Civil Procedure 23(a), and the district court also erred in certifying a statewide plaintiff class because the certification of this class was contingent on the bilateral certification of both a statewide plaintiff and a statewide defendant class.

[06/22] Anderson v. Bayer Corp.
In a suit for personal injuries caused by Trasylol, a prescription medication manufactured by Bayer, defendants' petition for leave to appeal under 28 U.S.C. section 1453(c) of a district court's order remanding four of the five cases is denied for lack of jurisdiction as the district court properly concluded that the four cases were not "mass" actions under CAFA.

[06/21] In re: Wilborn
In an interlocutory appeal from a bankruptcy court's certification of a class action in an adversary proceeding, the order is vacated where a bankruptcy judge may certify a class of debtors under appropriate circumstances but the proposed class in this case did not satisfy the requirements of Federal Rule of Civil Procedure 23 and Federal Bankruptcy Rule of Procedure 7023.

[06/21] Kleffman v. Vonage Holdings Corp.
In plaintiff's class action suit under section 17529.5(a)(2), which makes it unlawful to advertise in a commercial e-mail advertisement (i.e. spam) that "contains or is accompanied by falsified, misrepresented, or forged header information," dismissal of the complaint for failure to state a claim is affirmed as sending commercial e-mail advertisements from multiple domain names for the purpose of bypassing spam filters is not unlawful under section 17529.5(a)(2).

[06/18] Elliot v. Carcieri
In a class action lawsuit on behalf of foster care children who are under the legal custody of Rhode Island's Department of Children, Youth and Families (DCYF), claiming that systematic deficiencies in the state's child welfare and foster care systems deprived the plaintiffs of their rights under the U.S. Constitution and several federal statutes, district court's judgment dismissing the complaint on the ground that the Next Friends lacked capacity to sue on behalf of plaintiffs is reversed where: 1) the district court erred in finding that the state appointed guardians ad litem or CASA advocates precluded plaintiffs from filing suit by a Next Friend; 2) under the circumstances of the case, Rule 17(c) allows federal courts discretion to appoint a Next Friend to represent the children in federal court; and 3) the proposed Next Friends are suited to represent the children in this case.

[06/17] Curd v. Mosaic Fertilizer, LLC
In a suit brought by fishermen against a defendant for negligently spilling pollutants and hazardous contaminants into a pond, the judgment of the Second District is quashed as commercial fishermen have both a statutory and common law cause of action for economic losses proximately caused by the negligent release of pollutants despite the fact that the fishermen do not own any property damages by the pollution.

[06/17] Ehrheart v. Verizon Wireless
In a class action against Verizon Wireless claiming that defendant violated the Fair and Accurate Credit Transaction Act, which prohibits a seller from printing a receipt that displays more than the last five digits of a buyer's credit or debit card and/or the expiration date of the credit or debit card, a district court's order vacating its settlement class certification order and granting defendant's motion for judgment on the pleadings is reversed where: 1) there was a restricted, tightly focused role that Rule 23 prescribes for district courts, requiring them to act as fiduciaries for the absent class members, but that did not vest them with broad powers to intrude upon the parties' bargain; 2) a strong public policy existed, which was particularly muscular in class action suits, favoring settlement of disputes, finality of judgments and the termination of litigation; and 3) changes in the law after a settlement was reached did not provide ground for rescission of the settlement.

[06/17] Hervey v. Mercury Cas. Co.
In plaintiff's suit against her automobile insurance carrier, alleging that the insurer breached the policy by offsetting uninsured motorist payments due her for injuries suffered in an automobile accident with the amount the insurer paid plaintiff under the medical expense coverage in the same policy for the same accident, the trial court properly sustained without leave to amend the insurer's demurrer to plaintiff's class action complaint because the policy was not reasonably susceptible to plaintiff's interpretation of it.

[06/09] Am. Nurses Ass'n v. O'Connell
In an action against the Superintendent of Public Instruction and the California Department of Education (CDE) challenging a portion of a legal advisory regarding the rights of students with disabilities in K-12 public schools, arising from a 2005 class action settlement, trial court's judgment and peremptory writ of mandate issued are affirmed as California law does not allow designated voluntary school personnel, who are not licensed nurses, to administer insulin to diabetic students who require the injections under a section 504 Plan or Individualized Education Program.

[06/09] Pretka v. Kolter City Plaza II, Inc.
In a class action alleging violations of the Florida Condominium Act as well as breach of contract, the district court's order remanding the action to state court is reversed where: 1) defendant established by more than a preponderance of the evidence that the amount in controversy exceeded $5 million; and 2) the jurisdictional evidence that defendant attached to its opposition to remand should not have been excluded merely because it was submitted in response to the plaintiffs' motion to remand.

[06/07] Sheridan v. NGK Metals Corp.
In two putative class actions against multiple defendants, alleging negligence in connection with beryllium exposure and seeking a medical monitoring trust fund based on their increased risk of developing chronic beryllium disease (CBD), a grant of defendants' motion to dismiss is affirmed where: 1) the plaintiff cannot prevail because under Pohl, the threshold increase in risk to establish a medical monitoring claim under Redland Soccer remains at sensitization, a point along the exposure-to-disease continuum that plaintiff has not reached; 2) plaintiff failed to present sufficient evidence that, as a proximate result of the exposure, he has a significantly increased risk of contracting CBD; 3) because the underlying assertions in each action are the same, and because plaintiff could have brought a medical monitoring claim in the prior suit, the district court properly granted defendant's motion for judgment on the pleadings based on claim preclusion; and 4) district court properly granted defendant-engineering consultants' motion to dismiss for failure to state a claim upon which relief can be granted.

[06/04] In re: Metro. Gov of Nashville
Defendants' petition for a writ of mandamus, arising from plaintiffs' racial discrimination suit against their employer, is granted in part, denied in part and remanded where: 1) defendant's appeal of the district court's grant of plaintiffs' motion for a new trial is dismissed as such an order is generally not appealable as the order does not qualify as a "final decision" under 28 U.S.C section 1291; 2) defendant's contention that jurisdiction exists to consider its appeal by means of reviewing the district court's purported finding of alleged attorney misconduct is rejected; 3) the petition is granted to the extent of directing the district court to rule on the outstanding disparate-impact claims within 90 days from the filing of this opinion; and 4) remainder of the petition is denied.

[06/03] Froud v. Anadarko E&P Co.
In plaintiffs' request for permission to appeal from an order of the district court denying a motion to remand their class action, the request is denied where, while full briefing of the merits may not be necessary to allow the court to exercise its discretion to permit the appeal under Fed. R. App. P. 5, petitioners did not provide any discussion of the merits or the nature or importance of the issues presented by their requested appeal.

[06/02] Mabry v. Superior Court
In homeowners' petition for a writ of mandate challenging an order of the trial court, allowing for foreclosure to proceed on their home, is granted in part and remanded to the trial court to determine whether or not the lender complied with Civil Code section 2923.5. To the extent that the trial court's order precludes the assertion of any class action claims, the petition is denied.

[06/02] Rule v. Fort Dodge Animal Health, Inc.
In plaintiff's putative class action suit against Weyth Corporation and its subsidiary, alleging that defendants had sold a heartworm medication for dogs without disclosing safety concerns revealed in initial testing and in subsequent use, a grant of defendants' motion to dismiss for failure to sate a claim is affirmed where: 1) recovery generally is not available under the warranty of merchantability where the defect that made the product unfit caused no injury to the claimant and the threat is now gone and nothing now possessed by the claimant has been lessened in value; and 2) plaintiff has suffered no economic injuries under 93A section 4.

[05/28] Sheinberg v. Sorensen
In plaintiffs' action against companies affiliated with their now bankrupt, former employer, alleging violations of the Fair Labor Standards Act and other claims, district court's denial of plaintiffs' motion to recertify the case as a class action is vacated and remanded as the district court not only failed to follow Rule 23(g) but also failed to apply the alternative standard it identified for determining the adequacy of counsel to the facts before it.

[05/27] Seijas v. Repub. of Argentina
In a class action by holders of defaulted bonds issued by the Republic of Argentina, the district court's order of class certification is affirmed in part where: 1) the fact that damages may have to be ascertained on an individual basis was not sufficient to defeat class certification; and 2) the district court correctly determined that proceeding individually would be prohibitive for class members with small claims. However, the order is reversed in part where estimating gross damages for each of the classes as a whole, without using appropriate procedures to ensure that the damages awards roughly reflected the aggregate amount owed to class members, enlarged plaintiffs' rights by allowing them to encumber property to which they have no colorable claim.

[05/26] Bomersheim v. Los Angeles Gay & Lesbian Ctr.
In plaintiffs' negligence suit claiming that defendant accepted a duty to provide medical care consistent with the applicable standard of care and breached that duty by negligently administering an improper dosage for syphilis, denial of plaintiff's motion to certify a class is reversed as the trial court's order is based on improper criteria and is not supported by substantial evidence, and class treatment would be a superior method of resolving the claims.

[05/24] Arkansas Teacher Ret. Sys. v. Caiafa
In an objection to the Vice Chancellor's approval of a settlement among a majority of Countrywide stockholders, Countrywide directors, and Bank of America (BOA), related to Countrywide's merger with BOA, denial of the objection is affirmed where the Vice Chancellor did not abuse his discretion by holding that objector's derivative suit claims for breach of asserted duties were worthless and, therefore, added no conceivable value to the merger.

[05/21] Alvarez v. City of Chicago
In two lawsuits against the City of Chicago brought by paramedics, claiming that it willfully failed to properly compensate them for overtime, district court's grant of city's motion for summary judgment is reversed and remanded as the district court erred in dismissing the claims of the named plaintiffs as they have the right to proceed individually.

[01/14] Alaska Elec. Pension Fund v. Brown
In an action alleging breaches of fiduciary duty and disclosure claims relating to a tender offer, the denial of an intervenor's motion to recover attorneys' fees and costs is affirmed where: 1) the court of chancery applied the proper legal precepts in placing the burden on defendants to demonstrate that appellant was in no way a cause of the tender offer increase; and 2) defendants met this burden.

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Consumer Protection

[06/24] Olmstead v. Fed. Trade Comm'n
An order to partially satisfy a judgment against defendant in the FTC's suit for unfair or deceptive trade practices is affirmed as Florida law permits a court to order a judgment debtor to surrender all right, title, and interest in the debtor's single-member limited liability company to satisfy an outstanding judgment.

[06/21] Edwards v. First Am. Corp.
In an action claiming that defendant improperly paid millions of dollars to individual title companies and, in exchange, those title companies entered into exclusive referral agreements with defendant, a denial of defendants' motion to dismiss the complaint is affirmed where the text of the Real Estate Settlement Procedures Act did not limit liability to instances in which a plaintiff was overcharged.

[06/21] Real Estate Bar Ass'n for Massachusetts, Inc. v. Nat'l Real Estate Info. Serv.
In the Real Estate Bar Association's suit against defendant for unauthorized practice of law, judgment of the district court is vacated in part, reversed in part and remanded where: 1) district court's judgment against plaintiff on its unauthorized practice of law claim is vacated as in Massachusetts, the state judicial branch and the Supreme Judicial Court of Massachusetts (SJC) in particular, is solely responsible for defining what is the practice of law, and here, there is no controlling precedent which addresses whether the activities at issue constitute unauthorized practice of law; and 2) district court's judgment on defendant's dormant Commerce Clause counterclaim is reversed as plaintiff is not a state actor, defendant has not stated a dormant Commerce Clause claim against plaintiff, and plaintiff's bringing of its suit against defendant under Mass. Gen. Laws ch. 221, section 46B is protected by the First Amendment.

[05/28] Shaw v. Marriott Int'l., Inc.
In an action under the District of Columbia consumer protection statute to challenge the pricing practices of Marriott's Russian hotels, summary judgment for defendant is affirmed in part where the District of Columbia had an insufficient interest in the dispute for its law to apply. However, the judgment is reversed in part where plaintiffs proffered evidence that Marriott was responsible for their loss because it exercised some control over the franchised hotels at issue, including capping the rates they charge for rooms.

[05/27] CE Design, Ltd. v. Prism Bus. Media, Inc.
In plaintiff's suit under the Telephone Consumer Protection Act (TCPA), against the defendant for sending a fax advertising a trade show to the plaintiff, district court's grant of defendant's motion for summary judgment is affirmed where: 1) the district court correctly determined that it lacked jurisdiction to consider the validity of the "established business relationship" (EBR) defense; and 2) district court correctly determined that the EBR exemption applies in this case as the parties' publisher-subscriber relationships falls within the scope of business relationships the FCC intended the EBR defense to cover.

[05/26] Shroyer v. New Cingular Wireless Servs., Inc.
In an action claiming that Cingular Wireless, after its merger with AT&T, disregarded its obligations under plaintiff's phone service contract with AT&T by failing to provide adequate service coverage and requiring plaintiff to sign a different contract with defendant if he desired to get the service that AT&T had contracted to provide under the first agreement, and that Cingular misrepresented and omitted key facts about the consequence of the merger to the FCC, dismissal of the complaint is affirmed in part where: 1) "all the advantages that only the nation's largest wireless company can provide" was a vague statement and provided nothing concrete upon which plaintiff could reasonably rely; 2) plaintiff failed to allege that he actually read or heard the alleged misrepresentations; and 3) violations of the common law of unfair competition and breach of contract did not alone violate California's Unfair Competition Law. However, the dismissal is reversed in part where plaintiff's complaint sufficiently stated a claim that Cingular breached its contract with him.

[05/26] Adolph v. Coastal Auto Sales, Inc.
In plaintiff's suit against an automobile dealer for failing to transfer ownership of a trade-in vehicle to itself, causing her to be charged with parking fines, towing and impound fees, and a tax garnishment related to the trade-in, trial court's denial of defendant's petition to compel arbitration is affirmed as the trial court's factual finding that defendant waived its right to arbitrate is supported by substantial evidence.

[05/25] Jones v. ABN Ambro Mortgage Group, Inc.
In plaintiffs' suit against mortgage loan companies asserting claims for a declaratory judgment, negligence, and violation of the Real Estate Settlement Procedures Act (RESPA), arising from a mortgage loan-servicing Ponzi scheme, grant of defendants' motion to dismiss is affirmed where: 1) the plaintiffs' negligence claim was properly dismissed as the duty imposed on the defendants in this case was by contract rather than by "law as a matter of social policy,"; 2) district court correctly held that the plaintiffs failed to state a claim under RESPA because the perpetrator of the Ponzi scheme was not a loan "servicer" under RESPA; and 3) district court did not abuse its discretion in denying plaintiffs' request for leave to amend.

[05/20] Grove v. Wells Fargo Fin. California, Inc.
In plaintiff's appeal from the district court's award of fees and costs in plaintiff's Fair Credit Reporting Act (FCRA) action against a bank, the order is affirmed in part where: 1) plaintiff failed to comply with the local rules governing motions for taxable costs; and 2) given plaintiff's failure to meet his burden to show that the fees sought were at prevailing rates, the district court acted within its discretion when it adopted defendant's suggested hourly rates and rejected plaintiff's. However, the order is reversed in part where the expense-shifting provision in the FCRA authorized district courts to award costs that otherwise would be non-taxable under 28 U.S.C. section 1920, which generally authorized the award of certain specified costs.

[05/20] Pella Corp. v. Saltzman
In plaintiffs' suit against a window manufacturer, alleging that defendant committed consumer fraud by not publicly declaring a design defect that caused wood casing the windows to rot, defendant's Rule 23(f) appeal is granted and the district court's certification of two classes of plaintiffs affirmed as, although consumer fraud class actions present challenges that a district court must carefully consider, certification is appropriate under the circumstance of this case.

[05/20] Peer v. Lewis
In a case arising from a contentious Florida election, a district court's order denying defendant's request for sanctions against three attorneys who represented plaintiff in the underlying matter is affirmed in part where: 1) defendant's motion for Rule 11 sanctions was untimely because the district court had already rejected the offensive pleading at the time defendant moved for sanctions; and 2) counsel did not delay the judicial proceedings after he filed the offending complaint. However, the order is reversed in part where: 1) the district court failed to address defendant's Rule 11 motion for sanctions against certain attorneys; and 2) there was overwhelming evidence that one attorney knowingly pursued a frivolous claim, and thus acted in bad faith.

[05/19] Mayer v. Belichick
In a suit brought by a New York Jets season ticket-holder against the New England Patriots, its head coach Bill Belichick, and the NFL, claiming various causes of action related to the Patriot's secret videotaping of their opponent's signals, known as the "Spygate" scandal, district court's order dismissing the amended complaint is affirmed as plaintiff suffered no cognizable injury to a legally protected right or interest.

[05/14] FTC v. Neovi, Inc.
In an action by the FTC arising from a website managed by defendants that created and delivered unverified checks at the direction of registered users, summary judgment for plaintiff is affirmed where: 1) a single violation of the FTC Act may have more than one perpetrator; 2) defendants' business practices might have served to assist others in illicit or deceptive schemes, but the liability under the FTC Act that attached to defendants was not mediated by the actions of those third parties; and 3) defendants did not show that there was a material issue of fact as to whether consumer injuries were reasonably avoidable on either end of the fraudulent transactions.

[05/12] Parks v. MBNA Am. Bank, N.A.
In a class action lawsuit against MBNA America Bank, N.A., for its purportedly unlawful business practices under Bus. & Prof. Code section 17200, involving preprinted checks sent to its customers without any of the disclosures required by section 1748.9, judgment on the pleadings in favor of MBNA finding section 1748.9 preempted by federal law applicable to national banks is reversed where: 1) section 1748.9 is not, on its face, preempted; 2) section 1748.0 does not preclude national banks from exercising their authority to lend money on personal security under section 24 of title 12 of the United States Code; and 3) without a factual record, a court cannot conclude that section 1748.9 significantly impairs national banks' authorized activities.

[05/11] Ruth v. Unifund CCR Partners
In plaintiff's suit against a partnership specializing in debt collection, arising from an underlying suit brought by the partnership against plaintiff to collect a credit card debt allegedly owed to Citibank, judgment dismissing the lawsuit on statute of limitations grounds is affirmed as plaintiff failed to comply with the one-year statute of limitations and defendant did not fraudulently conceal any information that prevented plaintiff from filing her claim.

[05/10] Pulep v. Chase Bank U.S.A., NA
In plaintiffs' suit challenging retroactive interest-rate increased on the account balances of their Chase Bank credit cards, judgment of the district court compelling the parties to arbitrate their claims on an individual basis is affirmed as plaintiffs' claims of unconscionability regarding a class action waiver was a question of arbitrability for the court to decide, and as such, the district court properly exercised its responsibility to decide issues of arbitrability.

[04/19] Hale v. Sharp Healthcare
In plaintiff's putative class action lawsuit against Sharp Healthcare and Sharp Grossmont Hospital for violation of the UCL, violation of the Consumers Legal Remedies Act (CLRA), and other claims, claiming that defendant's deceptively and unfairly charged her and other uninsured more for medical services than from patients covered by Medicare or private insurance, trial court's dismissal of the complaint after sustaining without leave to amend defendant's demurrer is reversed where the court erred by sustaining the demurrer to the UCL and CLRA causes of action, as the second amended complaint sufficiently alleges plaintiff's standing. However, the judgment is affirmed in all other respects, as the court properly sustained the demurrer to the contract causes of action and it did not abuse its discretion by denying plaintiff's motion for reconsideration or leave to amend the contract causes of action.

[04/19] Durell v. Sharp Healthcare
In a putative class action suit for violation of the unfair competition act and violation of the Consumers Legal Remedies Act (CLRA), among others, claiming that defendant engaged in deceptive and unfair practices by billing uninsured patients its full standardized rates for services, when it gives substantial discounts for patients covered by Medicare or private insurance, trial court's dismissal after sustaining without leave to amend defendant's demurrer to plaintiff's second amended complaint is affirmed where: 1) the trial court properly granted the demurrer as to the claim under the unfair competition act; 2) the trial court's ruling is correct on the CLRA claim; 3) court properly sustained the demurrer to both the breach of contract and breach of implied covenant causes of action; and 4) plaintiff has not met his burden of showing abuse of discretion in the court's dismissal of his complaint without leave to amend.

[04/13] Lee v. Javitch, Block & Rathbone LLP
In plaintiff's suit against a law firm pursuant to the Fair Debt Collection Practices Act and the Ohio Consumer Sales Practices Act, claiming that the law firm filed an affidavit that was false in its application for a non-wage garnishment of plaintiff's bank account, the judgment of the district court is reversed and remanded, as plaintiff did not prove that defendant's affidavit was false because she did not establish at trial that reasonableness demanded any additional investigation of her bank accounts.

[04/09] Salenga v. Mitsubishi Motors Cred. of Am., Inc.
In a cross-complaint seeking to restrict the business practice in which creditors obtained deficiency judgments against vehicle buyers who had defaulted on their auto loans, under certain circumstances, pursuant to the body of law known as the Rees-Levering Motor Vehicle Sales and Finance Act, the dismissal of the complaint without leave to amend is reversed where a realistic possibility of amendment existed for a successful allegation of plaintiffs' claims.

[04/07] Kirk v. First Am. Title Ins. Co.
In an action alleging violations of consumer protection laws by title insurers, the trial court's order disqualifying a law firm on the defense side is reversed where, in the circumstances of the case, automatic vicarious disqualification is not required, and instead, there was a rebuttable presumption that a disqualified attorney's knowledge of client confidences was imputed to the firm, which could be refuted by evidence that the law firm adequately screened the attorney from the others at the firm representing the adverse party.

[04/06] Alatriste v. Cesar's Exterior Designs, Inc.
In a homeowner's suit against defendant seeking reimbursement of the $57,500 he paid defendant for landscaping work under a statute allowing a party to recover "all compensation paid to an unlicensed contractor," trial court's judgment in favor of the plaintiff is affirmed where: 1) plaintiff's prior knowledge of defendant's unlicensed status does not bar his section 7031(b) reimbursement claim; 2) plaintiff is entitled to recover the total amount paid even though defendant was licensed during a portion of the work; and 3) plaintiff is entitled to recover payments for materials retained by him.

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Drugs & Biotech

[06/25] Sherley v. Sebelius
In an action by medical researchers challenging newly promulgated guidelines authorizing the National Institutes of Health to fund more research projects involving human embryonic stem cells than it had previously done, dismissal of the complaint is reversed where plaintiffs had standing because the Guidelines intensified the competition for a share in a fixed amount of money, and thus the plaintiffs would have to invest more time and resources to craft a successful grant application.

[06/24] Shaw v. Sec'y of Human & Health Serv.
In an appeal of a Special Master's decision to award plaintiff's undisputed portion of his request for interim attorneys' fees and costs and deferring consideration of the remaining amount until submission of a final petition for fees and costs in plaintiff's case under the Vaccine Act, Court of Federal Claims' dismissal for lack of jurisdiction is reversed as 42 U.S.C. section 12(e) confers jurisdiction on the Court of Federal Claims to review interim attorney fee decisions as an interim attorney fee decision is a separate decision on compensation, and as such, is reviewable even when that decision issues prior to a decision on the merits.

[06/22] Whittemore v. Owens Healthcare
In plaintiffs' suit against pharmacies brought under the Drug Dealer Liability Act, trial court's order sustaining the demurrer without leave to amend is affirmed as: 1) contrary to the ruling below, the doctrine of unclean hands does not preclude recovery in circumstances covered by the Act because the very purpose of the Act is to permit recovery of damages in specified circumstances by the user and others damaged by the use of the drugs; but 2) the pharmacies did not knowingly market the controlled substances to plaintiff, as is required for liability under the Act.

[06/09] Anaya-Burgos v. Lasalvia-Prisco
In plaintiff's suit against an oncologist and others, claiming that the death of his wife was the result of defendants' negligent acts and omissions that induced her to purchase their "cancer vaccine" treatment and forego conventional cancer treatments, a grant of defendants' motion for judgment as a matter of law is vacated and remanded as, plaintiff put forth sufficient evidence including expert testimony, from which a reasonable jury could have concluded - and did conclude - that defendants' breach of the standard of care towards the wife caused her untimely death by inducing her to choose their treatment with promises that it would cure her.

[06/02] Haemonetics Corp. v. Baxter Healthcare Corp.
In plaintiff's suit for infringement of a patent, which claims a compact blood centrifuge device for separating and collecting components in a liquid such as blood, judgment of the district court is reversed in part, vacated in part, and remanded where: 1) district court's claim construction is reversed as "centrifugal unit" in claim 16 consistently means a vessel and a plurality of tubes, irrespective of its meaning in claim 1; and 2) district court's holding that claim 16 is not indefinite as a matter of law and the jury's finding that the patent was not invalid due to anticipation or obviousness is vacated because the district court erred in its construction of "centrifugal unit" and because the jury's verdict relied on the district court's incorrect claim construction.

[05/10] Photocure ASA v. Kappos
District court's holding that the PTO's denial of petitioner's request for a term extension of a drug product having as its active ingredient the chemical compound, MAL hydrochloride, was not in accordance with law and that the patent on MAL hydrochloride is subject to term extension is affirmed as the district court correctly applied 35 U.S.C. section 156 to extend the term of the patented product that is subject to regulatory review.

[05/03] Wyeth Holdings Corp. v. Sebelius
District court's rejection of petitioner's challenge to the FDA's determination of the date on which the approval phase of its phased regulatory review process begins for purposes of calculating patent term extensions, related to an animal drug for the treatment and control of parasites in beef and dairy cattle, is affirmed where: 1) petitioner's argument that section 156(g) unambiguously indicates that an application is initially submitted when a sponsor submits its first technical section is rejected as section 156(g) is ambiguous; 2) the FDA'a interpretation is permissible; and 3) the FDA interpretation challenged by petitioner is not arbitrary and capricious.

[04/29] In re: Ciprofloxacin Hydrochloride Antitrust Litigation
In an action claiming that defendant pharmaceutical companies violated Section 1 of the Sherman Act when they settled their dispute concerning the validity of Bayer's Cipro patent by agreeing to a reverse exclusionary payment settlement, summary judgment for defendants is affirmed where patent settlements in which the generic firm agrees to delay entry into the market in exchange for payment fall within the scope of the patent holder's property rights.

[04/27] Merck & Co. v. Reynolds
In a 2003 securities fraud class action alleging that Merck & Co. knowingly misrepresented the heart-attack risks associated with its drug Vioxx, the Third Circuit Court of Appeals' reversal of a district court's dismissal of the complaint as untimely is affirmed where: 1) the limitations period in 28 U.S.C. section 1658(b)(1) begins to run once the plaintiff actually discovers or a reasonably diligent plaintiff would have discovered the facts constituting the violation (including scienter), whichever came first; and 2) prior to November 6, 2001, the plaintiffs did not discover, and Merck did not show that a reasonably diligent plaintiff would have discovered the facts constituting the violation.

[04/26] US v. Birbragher
Defendant's drug conspiracy conviction and sentence are affirmed where: 1) it was well settled that 18 U.S.C. section 841 applied to defendant, as the owner and operator of a company involved in an alleged conspiracy with doctors and pharmacists to distribute controlled substances outside the scope of their professional practice; 2) the Controlled Substances Act, as it existed when defendant engaged in the conduct alleged in the indictment, was not unconstitutionally vague as applied to defendant's ownership and operation of his company; and 3) the court enforced defendant's waiver of his right to appeal and declined to address the merits of his claim.

[04/26] ALZA Corp. v. ANDRX Pharm., LLC.
In plaintiff's patent infringement suit, involving methods for treating ADHD through a methylphenidate drug dosage that has an ascending release rate over an extended period of time, district court's finding of noninfringement is affirmed as the asserted claims are invalid for lack of enablement under 35 U.S.C. section 112.

[04/14] PhotoMedex, Inc. v. Irwin
In an action involving Lanham Act claims for misleading advertising and California state law claims for false advertising and unfair competition, based on defendants' alleged misrepresentations regarding the release of a medical device, summary judgment for defendants is affirmed in part where, because the FDA permitted defendants to determine in the first instance whether their laser device was covered by clearance previously given to a similar device and to market their device without an affirmative statement of approval by the FDA, the Lanham Act claim by plaintiff could not proceed. However, the judgment is vacated in part where, though a forecast of future events may ordinarily be a statement of opinion upon which unfair competition claims could not be based, such a statement may be actionable if the speaker knew at the time the statement was made that it was false or did not have a good faith belief in the truth of what was said.

[04/14] Novo Nordisk A/S v. Caraco Pharm. Labs., Ltd.
In an action brought pursuant to the Drug Price Competition and Patent Term Restoration Act of 1984, as amended by the Medicare Prescription Drug Improvement and Modernization Act of 2003 (Hatch-Waxman Act), arising from Novo Nordisk's (Novo) patent infringement suit against a generic drug manufacturer involving the drug repaglinide under the brand name Prandin, district court's grant of summary judgment in favor of defendant and its injunction order directing Novo to request the FDA to replace its patent use code U-968 listing for Prandin in the Orange Book with the former U-546 listing is reversed and vacated, as defendant does not have a statutory basis to assert a counterclaim requesting such injunctive relief because the Hatch-Waxman Act authorizes a counterclaim only if the listed patent does not claim any approved methods of using the listed drug.

[04/13] Doe v. Sec'y of Health & Human Serv.
The decision of the U.S. Court of Federal Claims upholding the special master's denial of compensation, on the ground that the claimants failed to prove that their daughter's death was caused by hepatitis B vaccination, is affirmed where: 1) the special master's factual findings were not arbitrary or capricious; and 2) the special master did not commit legal error in considering evidence of Sudden Infant Death Syndrome (SIDS), an allegedly alternative cause, as there is nothing in the Vaccine Act that prohibits the government from presenting evidence that the petitioner's injury was due to "factors unrelated" to the vaccine.

[04/08] Colwell v. Rite Aid Corp.
In an Americans with Disabilities Act (ADA) action claiming constructive discharge based on plaintiff's partial blindness, summary judgment for defendant is affirmed in part where no reasonable juror could find that the actions to which plaintiff referred made her workplace so unbearable that a reasonable person would have felt compelled to resign. However, the judgment is reversed in part where the ADA contemplated that employers may need to make reasonable shift changes in order to accommodate a disabled employee's disability-related difficulties in getting to work.

[04/07] Yorkey v. Diab
In an appeal involving patent and patent application claiming inventions for measuring the concentration of oxygen in blood, a decision of the Board of Patent Appeals and Interferences against appellant is affirmed in part and reversed in part where: 1) a motion seeking invalidity of various claims of appellees' patent was properly denied as the asserted claims of appellees' application meet the written description requirement of section 112; but 2) the Board erred in finding that appellant failed to establish a prima facie case of actual reduction to practice.

[04/06] Guinn v. AstraZeneca Pharms. LLP
In an action claiming that plaintiff's use of defendant's prescription drug Seroquel caused her to develop diabetes, summary judgment for defendant is affirmed where: 1) the district court did not abuse its discretion by finding that plaintiff's expert's differential diagnosis was unreliable under Daubert because she failed to adequately consider possible alternative causes of plaintiff's weight gain and diabetes; and 2) plaintiff identified no evidence of specific causation other than the expert's testimony.

[04/01] Hearing Components, Inc. v. Shure Inc.
In a patent infringement action involving patents related to hearing aid ear piece devices, district court's judgment is affirmed in part, reversed in part, and remanded where: 1) district court's determination that claims 1 and 2 of plaintiff's '920 patent are indefinite is reversed; 2) district court's grant of JMOL that defendant's straight-nozzled products do not infringe is reversed and court's denial of JMOL that defendant's barbed-nozzled products infringe is affirmed; 3) district court correctly denied JMOL and upheld the jury's verdict of nonobviousness as legally permissible and supported by substantial evidence; and 4) district court did not abuse its discretion in determining that laches did not apply.

[04/01] Innovative Therapies, Inc. v. Kinetic Concepts, Inc.
District court's dismissal of plaintiff's declaratory judgment action involving patents related to medical devices used in treatment of chronic wounds, based on absence of an actual controversy within the contemplation of the Declaratory Judgment Act, is affirmed where: 1) district court did not err in concluding that plaintiff's supplemental complaint did not establish an actual controversy at the time of the original pleading, and that jurisdiction based on subsequent events did not relate back to the filing date of the initial complaint; 2) there is no abuse of discretion in the district court's discretionary decision on the facts and circumstances of the case; and 3) plaintiff's argument that the convenience of the forum requires retaining the action in Delaware is rejected.

[03/31] HIF Bio, Inc. v. Yung Shin Pharms. Indus. Co., Ltd.
On remand from the Supreme Court's reversal of a decision that the Federal Circuit lacked appellate jurisdiction to review a district court's remand order that was based upon the district court's decision not to exercise supplemental jurisdiction, the remand order is now reversed where the district court abused its discretion in remanding the plaintiffs' amended complaint to California state court because two of the remanded causes of action "arise under" 28 U.S.C. 1338(a), but the district court should have dismissed these purported causes of action for failure to state a claim for which relief can be granted.

[03/26] Enzo Biochem. Inc. v. Applera Corp.
In a patent infringement suit involving patents directed to various techniques for labeling and detecting nucleic acids, judgment of the district court is affirmed in part, reversed in part and remanded where: 1) district court's grant of summary judgment of invalidity of patents '824 and '767 are reversed as the claims of these patents are not indefinite and there are genuine issues of material fact as to anticipation; 2) although the '928 patent is not indefinite, the district court's judgment of anticipation of the patent is affirmed; and 3) the district court correctly construed the claims of the '830 patent in finding noninfringement.

[03/26] Chang v. Baxter Healthcare Corp.
In a suit brought by residents of Taiwan against a manufacturer of clotting factors, claiming that the defendant acquired blood from high-risk donors and processed it improperly in California and distributed the product in foreign countries despite discovering that the factors were contaminated by HIV, judgment of the district court is affirmed where: 1) plaintiffs' claims that the district judge dismissed on the merits he correctly dismissed as untimely under California law; 2) district court was correct in its alternative ruling that a California court would apply the Taiwanese 20-year statute of repose because the plaintiffs' tort claims arose under Taiwanese law; 3) district court was correct in dismissing some of the claims on forum non conveniens grounds; and 4) district court's dismissal of a plaintiff's product-liability claim for forum non conveniens is affirmed as convenience favors Taiwan and the statute of limitations applicable to this suit will be the same whether the case is tried there or in California.

[03/24] US v. Purdue Pharma L.P.
In plaintiff's qui tam action alleging that his former employer defrauded the government by marketing its pain-relief drug, OxyContin, as a cheaper alternative to another drug, district court's dismissal of the suit and denying plaintiff's leave to file a Fifth Amended Complaint is affirmed although the circuit court finds the district court erred in its decision not to enforce a release as a bar to plaintiff's claims because the allegations of fraud were sufficiently disclosed to the government prior to plaintiff's filing of the qui tam suit.

[03/22] Wells v. SmithKline Beecham Corp.
In an action claiming that defendant pharmaceutical manufacturer failed to warn plaintiff that one of its drugs could cause him to become a compulsive gambler, summary judgment for defendant is affirmed where plaintiff's expert testimony did not establish a causal relationship between the drug and gambling.

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Evidence

[06/25] Bagby Elevator Co. v. Schindler Elevator Corp.
In an action for tortious interference with contract, judgment for plaintiff is affirmed where: 1) under the court's highly deferential standard of review, there was no reversible error in the district court's decision to use the pattern jury instruction; 2) there was sufficient evidence of both malice and gross negligence to support an award of exemplary damages; and 3) there was ample evidence of causation to support the verdict.

[06/25] Woodfox v. Cain
In the state's appeal from a grant of petitioner's habeas petition in a murder prosecution, the order is reversed where: 1) petitioner failed to exhaust his Confrontation Clause claim in state court; 2) there was no indication in the state court adjudication that suggested a reliance on any procedural vehicle rather than the merits to deny relief; 3) it was not unreasonable to conclude that defense counsel did not render constitutionally deficient performance by failing to pursue a confrontation objection; and 4) the absence of a fingerprint expert did not cause petitioner prejudice that warrants habeas relief.

[06/25] US v. Williams
In a case involving a defendant's transport of 74 unlawful aliens, and the death of 19 of them after he left the aliens locked in the trailer of his tractor?trailer without activating the trailer's air conditioning unit, defendant's murder convictions are affirmed where: 1) the Government's articulated reasons for striking a veniremember were supported by the voir dire transcripts; and 2) it was not clear error for the district court to include defendant's first trip, during which he transported approximately 60 unlawful aliens, as part of the relevant conduct. However, his sentence is vacated where the district court erred in its definition of "act of violence" under the Federal Death Penalty Act and, under the correct definition, the evidence at trial cannot support a finding that the requisite threshold intent was met.

[06/25] US v. King
In defendant's appeal from the district court's judgment revoking his term of supervised release and imposing additional supervised release conditions on the basis of five violations of his supervised release conditions, the order is affirmed where: 1) 18 U.S.C. section 3605's language did not limit a transferee court's power to violations that occur after transfer; 2) together, the ordinary meaning of "associate," the court's cases, and defendant's probation officer's instructions adequately notified defendant that telephone and e-mail communications with felons were prohibited; and 3) the evidence was sufficient to support the district court's finding that defendant's misrepresentation was intentional.

[06/25] People v. Bloom
Conviction of defendant for resisting arrest and other related charges, arising from making more than 40 harassing calls to 911 in a single evening, is affirmed over a challenge to a denial of a motion to suppress as a dispatcher lawfully arrested defendant for making the calls and she was not required to physically restrain him or to be present at the time of the arrest.

[06/25] Malone v. Lockheed Martin Corp.
In plaintiff's suit for employment discrimination based on race and retaliation, district court's grant of defendants' motion for judgment as a matter of law is affirmed where, for substantially the same reasons as the court indicated below, the record reveals no significant evidentiary basis for the verdict.

[06/25] Pickett v. Sheridan Health Care Ctr.
In plaintiff's Title VII suit against her former employer for being fired in retaliation for her complaints about sexual harassment by residents of defendant's nursing home, district court's denial of defendant's motions for a new trial and remittitur are affirmed where: 1) plaintiff presented enough evidence to persuade a reasonable jury that her complaints caused defendant to fire her; 2) it was not an abuse of discretion to deny the motion for a new trial on the basis of plaintiff's counsel's closing arguments; 3) it was not an abuse of discretion in denying remittitur on the compensatory damages as enough evidence supported a jury award of $25,000, which is well within the $200,000 cap set out in 42 U.S.C. section 1981a(b)(3)(C); and 4) it was not an abuse of discretion in denying remittitur on the punitive damage award and the logic of Exxon Shipping Co. v. Baker, 128 S. Ct. 2605 (2008) does not apply to this Title VII case.

[06/25] Davis v. Lafler
District court's denial of defendant's petition for habeas relief from convictions for carjacking and receiving and concealing stolen property is reversed as there was insufficient evidence on which to base defendant's conviction for aiding and abetting the carjacking.

[06/25] US v. Huff
Defendant's convictions and sentences for bribery and conspiracy to commit wire fraud and bribery are affirmed in part where: 1) the evidence was sufficient to establish a single conspiracy in this case, and there was no material variance between the indictment and the evidence presented at trial; and 2) the district court did not err in basing the loss amount on defendant's substantive counts of conviction only. However, a restitution order is vacated in part where the circuit court was unable to determine whether the amount of restitution imposed by the district court exceeded the victims' actual losses.

[06/24] US v. Shafer
Defendant's drug conspiracy conviction is affirmed where: 1) a typical person would have understood the exchange between defendant and an officer to allow the officer to seize defendant's briefcase and its contents; 2) the denial of defendant's motion for a continuance did not prejudice him; and 3) a reasonable jury could conclude that defendant's Mercedes was purchased with the proceeds from his drug distribution.

[06/24] US v. Adamson
Defendants' convictions and sentences for conspiracy to distribute and possession with intent to distribute 500 grams or more of methamphetamine and five kilograms or more of cocaine are affirmed where: 1) the district court properly considered the relevant conduct for which defendant was responsible in comparison to other members of the organization and did not commit clear error in its factual determination that defendant's role was not minor; 2) defendants were active, necessary, and well-compensated members of the conspiracy, and their roles as couriers did not necessarily entitle them to the minor role adjustment; 3) the presence of firearms in the garage where defendant received drugs and dispatched large sums of money to the west coast made the fact of his involvement in the drug conspiracy more probable and evidence of this was thus properly admitted; and 4) the district court did not clearly err in imposing a three-level enhancement for his role in the offense.

[06/24] Suggs v. McNeil
In a capital habeas matter, a denial of the petition is affirmed where the decision of the Florida Supreme Court finding that petitioner failed to prove prejudice due to allegedly ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984), was neither contrary to nor an unreasonable application of clearly established federal law.

[06/23] Thomas v. Parker
In an action challenging various conditions of plaintiff's confinement at the James Crabtree Correctional Center (JCCC), a prison in the Oklahoma Department of Corrections (ODOC), dismissal of the action is affirmed where: 1) the district court did not err in concluding that plaintiff failed to exhaust his administrative remedies when he did not properly complete all three required written steps; 2) plaintiff's allegations were insufficient to establish fraud on the court because, at most, they showed the nondisclosure of evidence or the alteration of evidence by a party, with no showing of attorney involvement; and 3) it is difficult to see how there could be actionable fraud on the court if the district court had before it the correct documents when it made its final decision.

[06/23] US v. Hasan
Defendant's perjury convictions are affirmed in part where, although the prosecutor could have done more to clarify, the district court would not have clearly or obviously erred in concluding that a reasonable jury could find that the questions were not the cause of defendant's inconsistent answers. However, the judgment is vacated in part where the district court needed to determine in the first instance whether defendant spoke primarily a language other than the English language under the proper legal standard.

[06/23] Jones v. Nat'l. Am. Univ.
In an action alleging that a university failed to promote plaintiff in violation of the Age Discrimination in Employment Act (ADEA), judgment for plaintiff is affirmed where: 1) the district court did not abuse its discretion by concluding that certain witnesses' testimony was sufficient authentication to admit an exhibit; 2) plaintiff presented sufficient evidence for the jury to conclude that defendant's proffered reason for the failure to promote was a pretext for age discrimination; and 3) the district court properly instructed the jury on plaintiff's burden under her ADEA claim, including her burden to prove that defendant's proffered legitimate, nondiscriminatory reason for the failure to promote was pretext for age discrimination.

[06/23] People v. Garcia
Trial court's restitution order following defendant's no contest plea to a single count of felony false imprisonment by force in exchange for dismissing a rape charge and another separate case is affirmed where: 1) the trial court appropriately allowed only a limited inquiry into the confidences of the psychotherapist-patient relationship, compelling disclosure of only those matters directly relevant to the issue of restitution for the victim's therapy costs; 2) by not requesting at the restitution hearing, enforcement of a subpoena duces tecum, defendant forfeited his objection on appeal; 3) there was sufficient evidence establishing that the doctor charged the victim $4,764.71 for therapy and that the victim was ultimately responsible for paying that amount; and 4) defendant's objection to the doctor's $500 witness fee is forfeited.

[06/23] People v. Lopez
Conviction of defendant for molesting his two stepdaughters, including convictions for committing a lewd act upon a child under the age of 14, is affirmed as, under the totality of the circumstances, the evidence supported a reasonable finding that there was a touching concurrent with lewd intent, in violation of section 288(a).

[06/23] People v. Tompkins
Defendant's conviction of multiple counts of lewd and lascivious acts with a minor under the age of 14 is affirmed over claims: 1) that the corpus delicti rule prohibited convicting him of acts described only by his out-of-court statements; 2) victim's generic testimony was insufficient to establish his guilt; 3) that there was no evidence that he filed the victim; 4) that the trial court erred in allowing a detective to testify as an expert on child sex abuse victims; and 5) that imposition the upper term for one count violated his constitutional rights.

[06/23] Schaffer v. Superior Court
Defendant's request for extraordinary relief to set aside an order of the superior court denying his motion to compel the People to provide copies of discovery under Penal Code section 1054.1 free of charge, is denied as section 1054.1 imposes no such duty on the prosecution as the People comply with section 1054.1 by affording a defendant an opportunity to examine, inspect, or copy the discoverable items, and a non-indigent defendant may receive at his or her expense copies of discovery made available by the People.

[06/23] US v. Gonzalez
In a prosecution of defendant for conspiring to distribute and possessing with the intent to distribute cocaine and marijuana, district court's denial of a motion to suppress is affirmed where: 1) the test is not whether the individual actually lived in the apartment but whether she apparently had sufficient authority to consent to its search; 2) there was probable cause to arrest defendant; 3) there was sufficient evidence to support the search warrant of his vehicle; 4) district court clearly did not err by crediting a witness' testimony over defendant's; and 5) the district court did not err in imposing a two-level sentencing enhancement for obstruction of justice after finding defendant committed perjury at the suppression hearing.

[06/23] Barhoumi v. Obama
In a habeas petition filed by a Guantanamo Bay detainee, the denial of the petition is affirmed where: 1) the district court's alleged failure to comply with its case management order did not require reversal; 2) the district court did not clearly err in relying on a diary recovered at a confidential location for its finding that petitioner was part of an al-Qaida associated force.

[06/23] Ebert v. Gaetz
District court's denial of defendant's petition for habeas relief from his murder and armed robbery conviction is affirmed where: 1) a state court's conclusion that new statements from a witness did not negate its earlier finding of probable cause to arrest defendant was not so erroneous as to be objectionably unreasonable; and 2) defendant's counsel was not constitutionally deficient in failing to file what would have been an unmeritorious motion to quash his arrest and suppress inculpatory statement.

[06/23] Hendrix v. Evenflo Co.
In an action alleging that plaintiff's son sustained traumatic brain injuries when a child restraint system manufactured by defendant malfunctioned during a minor traffic accident, summary judgment for defendant is affirmed where the district court did not abuse its discretion in excluding plaintiff's expert testimony based on the insufficient reliability of that testimony under Daubert.

[06/22] People v. Ogle
Conviction of defendant for making criminal threats, disobeying a domestic relations order, and stalking is affirmed as stalking is an act of domestic violence and admissible to prove propensity to commit the crime of making criminal threats.

[06/18] Wal-Mart Stores, Inc. v. Merrell
In plaintiffs' wrongful death and survival claims against Wal-Mart for the death of their son from smoke inhalation, claiming that a halogen lamp purchased from Wal-Mart caused the fire, the court of appeals' reversal of the trial court's grant of defendant's motion for summary judgment on the ground that plaintiffs produced evidence on each challenged element of their cause of action is reversed as, plaintiff's expert's testimony was legally insufficient to support causation.

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Injury & Tort Law

[06/25] Lal v. State of Cal.
In an action against the California Highway Patrol and certain officers for the shooting death of plaintiff's husband, dismissal of the action with prejudice under Federal Rule of Civil Procedure 41(b) for failure to prosecute when her attorney failed to meet deadlines and attend hearings is reversed where an attorney's gross negligence constituted an extraordinary circumstance warranting relief from a judgment dismissing the case for failure to prosecute under Rule 41(b).

[06/24] DDJ Mgmt., LLC v. Rhone Group L.L.C.
In an action claiming that defendants presented plaintiffs with corporate financial statements that were false and misleading, the appellate division's modification of the trial court's order dismissing plaintiffs' fraud claim is reversed where: 1) when a plaintiff has taken reasonable steps to protect itself against deception, it should not be denied recovery merely because hindsight suggested that it might have been possible to detect the fraud when it occurred; and 2) plaintiffs in this action for fraud have alleged facts from which a jury could find that they were justified in relying on the representations defendants made to them.

[06/24] Granite Rock Co. v. Int'l. Brotherhood of Teamsters
In an action against a labor union by an employer, invoking federal jurisdiction under section 301(a) of the Labor Management Relations Act (LMRA), seeking strike-related damages for the unions' alleged breach of contract, and asking for an injunction against an ongoing strike because the hold-harmless dispute was an arbitrable grievance under the new collective bargaining agreement (CBA), the Ninth Circuit's partial affirmance of the district court's order dismissing plaintiff's tortious interference claims and denying defendant's separate motion to send the parties' dispute over the CBA's ratification date to arbitration is affirmed in part where the Ninth Circuit did not err in declining to recognize a new federal common-law cause of action under LMRA section 301(a) for defendant's alleged tortious interference with the CBA. However, the judgment is reversed in part where the parties' dispute over the CBA's ratification date was a matter for the district court, not an arbitrator, to resolve.

[06/24] Yanez v. SOMA Envtl. Eng'g, Inc.
In plaintiff's suit for injuries she suffered in an automobile accident, trial court's grant of defendants' motion to reduce the award for medical expenses from $44,519.01 to $18,368.24 is reversed and remanded where: 1) trial court erred in reducing plaintiff's damages to the amount actually paid by her insurers as the amounts written off by plaintiff's health care providers constitute collateral benefits of her insurance; and 2) on remand, the trial court is to award plaintiff prejudgment interest under Civ. Code section 3291.

[06/23] Simmons v. Navajo County
In a civil rights action against county jail personnel claiming that they negligently permitted the suicide of an inmate, summary judgment for defendant is affirmed in part where: 1) no reasonable jury could conclude that a nurse consciously disregarded an excessive risk to plaintiffs' decedent's safety; 2) plaintiffs adduced no evidence that a corrections officer knew that the decedent was suicidal; and 3) because there was no underlying constitutional violation, plaintiffs could not maintain a claim for municipal liability. However, the judgment is vacated in part where, should the district court decline to exercise supplemental jurisdiction over plaintiffs' state law claims, it may remand those claims to state court for further proceedings.

[06/23] Thach v. Tiger Corp.
In a negligence, products liability, and breach of warranty action against the Japanese manufacturer of a rice cooker which allegedly caused a fire at plaintiffs' home, judgment on the pleadings for defendant is affirmed where plaintiffs had failed to serve defendant within South Dakota's three-year statute of limitations, because delivery of plaintiffs' request for service to the Japanese Foreign Affairs Ministry on either December 7 or 19 did not toll the limitations period under S.D. Stat. 15-2-31 before its expiration on December 11, 2007.

[06/23] Espinosa v. Kirkwood
In plaintiffs' suit against the driver of their getaway vehicle (they were participants in a burglary) for damages for personal injuries sustained in a vehicle collision while fleeing from the police, judgment of the trial court is affirmed as, because their injuries were "in any way proximately caused by their commission of a felony or immediate flight therefrom," plaintiffs were barred from recovering damages based on negligence.

[06/22] Benson v. Superior Court
In a mother's suit against a county and the county coroner, for retaining her son's heart for further examination during a postmortem exam, defendants' petitions for extraordinary relief is granted as a county coroner, conducting an inquiry into cause of death, has no duty to obtain consent from next of kin before retaining a part of the decedent's body to determine cause of death, or for scientific investigation or coroner training.

[06/22] Gonzalez v. Dept. of Labor
In an action challenging the Department of Labor's decision that plaintiff was required to pay the Department a share of the proceeds from a personal injury action, summary judgment for defendant is affirmed where: 1) the settlement agreement clearly showed that the parties' mutual intent was to have both spouses release their respective claims against defendants; 2) it was for Labor to determine how much of plaintiffs' settlement proceeds should be allocated to plaintiff's loss of consortium claim; and 3) plaintiffs offered insufficient evidence to substantiate their claim for costs.

[06/22] Armstrong v. Geithner
In an action alleging that Department of the Treasury employees violated the Privacy Act, 5 U.S.C. section 552a, by disclosing the details of an investigation into plaintiff's conduct, summary judgment for defendants is affirmed where plaintiff failed to establish that the information disclosed had been retrieved from a record held in a system of records, as required in an action for damages under the Privacy Act.

[06/22] Jay E. Hayden Found. v. First Neighbor Bank, NA
In a RICO suit against a bank, two law firms, and affiliated individuals, grant of defendants' motion to dismiss on the ground that the complaint itself showed that plaintiffs had missed the four-year deadline governing RICO suits is affirmed as, by the summer of 2003 at the latest, the plaintiffs knew that a lawyer had looted the estate and that bank's employees were trying to prevent further investigation of the lawyer.

[06/21] Fredericks v. Jonsson
In an action against a licensed psychologist for failing to warn plaintiffs of the danger posed by one of the psychologist's patients, summary judgment for defendant is affirmed where: 1) Colorado's mental health-professional liability statute, Colo. Rev. Stat. section 13-21-117, applied in the circumstances of this case; and 2) the statute did not require defendant to warn plaintiffs because the patient had not communicated to defendant any serious threat of imminent physical violence against them.

[06/21] Myrick v. Mastagni
In a wrongful death action against building owners for negligence in failing to perform seismic retrofitting of the building that killed two women in a 2003 earthquake, judgment of the trial court is affirmed where: 1) a city ordinance requiring hazardous buildings to be retrofitted by a certain date does not insulate owners of unreinforced masonry buildings from negligence causing death or injuries prior to the compliance date; and 2) Civ. Code section 1431.1 and 1431.2 do not apply to defendants in a joint venture.

[06/21] Med. Assurance Co., Inc. v. Hellman
District court's order issuing a stay of federal proceedings in an insurer's request for declaratory judgment, claiming that it no longer has a duty to defend or indemnify a doctor due to his disappearance in more than 350 medical malpractice claims, is reversed and remanded as it was an abuse of discretion to stay this action.

[06/18] Harris v. Wachovia Mortgage, FSB
In a suit for breach of contract, breach of the implied covenant of good faith and fair dealing, and unfair business practices, trial court's order sustaining without leave to amend a demurrer to plaintiffs' first amended complaint is affirmed in part, reversed in part and remanded where: 1) the demurrer was properly sustained without leave to amend as to the unfair business practices claim as it was added without leave of court and exceeded the scope of the court's order granting leave to amend the original complaint; 2) the demurrer was properly sustained as to the breach of the covenant of good faith and fair dealing claim as plaintiffs have not pleaded a violation of any duty arising under tort law; 3) the demurrer was improperly sustained as to the breach of contract claim as the settlement agreement is not preempted by Home Owners' Loan Act (HOLA); and 4) the award of costs including attorney fees is reversed as a matter of law.

[06/17] Internet Solutions Corp. v. Marshall
In a defamation suit against a Washington resident for posting defamatory statements about the plaintiff on her website, defendant is not subject to personal jurisdiction in Florida as posting defamatory material on a website alone does not constitute the commission of a tortious act within Florida for purposes of section 48.193(1)(b), rather, the material posted on the website about a Florida resident must not only be accessible in Florida but also be accessed in Florida in order to constitute the commission of the tortious act of defamation.

[06/17] Minkler v. Safeco Ins. Co. of Am.
In a dispute over a homeowner's insurance coverage, arising from plaintiff's suit against a mother and her son for being sexually molested by the son in their home, the court rules that an exclusion of coverage for the intentional acts of "an insured," read in conjunction with a severability or "separate insurance" clause like the one at issue in this case, creates an ambiguity which must be construed in favor of coverage that a lay policyholder would reasonably expect. Here, a lay insured would reasonably anticipate that under a policy containing such a clause, each insured's coverage would be analyzed separately, so that the intentional act of one insured would not, in and of itself, bar liability coverage of another insured for the latter's independent act that did not come within the terms of the exclusion. Therefore, the homeowner was not precluded form coverage for any personal role she played in her son's molestations of plaintiff merely because the son's conduct fell within the exclusion for intentional acts.

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Legal Malpractice

[06/17] Price v. Wolford
In the Oklahoma Health Care Authority (OHCA)'s appeal from the district court's order allotting part of a malpractice settlement to OHCA in full satisfaction of the lien, the order is reversed where the district court correctly construed Oklahoma law but erred in finding that the settling parties had proved by clear and convincing evidence that only $67,666.67 of the settlement could be attributed to medical care paid by Medicaid.

[06/17] Estate of Schneider v. Finmann
In a legal malpractice action alleging that defendants negligently advised decedent to transfer, or failed to advise decedent not to transfer, an insurance policy which resulted in an increased estate tax liability, the appellate division's affirmance of dismissal of the action is reversed where an attorney may be held liable for damages resulting from negligent representation in estate tax planning that causes enhanced estate tax liability.

[06/17] Martinez v. Cui
In plaintiff's suit against a first-year medical resident claiming that she was sexually assaulted during an examination, judgment in favor of the defendant is affirmed where: 1) the district court's evidentiary rulings were not error; and 2) the jury was correctly instructed on the shocks-the-conscious element as this standard applies to claims that an executive official's sexual assault violated the substantive due process clause.

[05/26] Sandarg v. Dental Bd. of California
Superior court's denial of plaintiff's petition for a writ of mandate seeking reinstatement of his dental license, which was revoked by the Dental Board of California, is affirmed as the standard of proof for a petition to revoke a dental licentiate's probation is preponderance of the evidence.

[05/26] Wallace v. McGlothan
In plaintiffs' medical malpractice suit against a doctor for permanent injury to plaintiff's eye as a result of negligently performed LASIK surgery, district court's denial of defendant's motions for judgment as a matter of law is affirmed as the evidence was sufficient to show that the doctor's negligence was the proximate cause of the plaintiffs' injuries and the doctor has not shown any perjury or discovery violations by the plaintiffs that would warrant reversal.

[05/20] Lockton v. O'Rourke
In plaintiff's legal malpractice suit, trial court's dismissal following demurrers by defendants is affirmed in part, reversed in part and remanded where: 1) trial court properly sustained the demurrer on the ground that defendants did not continue to represent plaintiff on his claims against the defendants in the underlying case for a sufficient time to toll the statute of limitations; and 2) trial court's order denying an award of attorney fees to two attorneys is reversed.

[05/19] Pages-Ramirez v. Ramirez-Gonzalez
In plaintiffs' medical malpractice suit against an obstetrician and others claiming that the doctor caused catastrophic injuries to their son during his delivery, district court's grant of defendant's motion for summary judgment is vacated and remanded, as the district court abused its discretion when it refused to permit plaintiffs' expert to testify on the relevant standard of care and causation.

[05/17] Laclette v. Galindo
In plaintiffs' legal malpractice action against defendants, trial court's grant of summary judgment in favor of the defendants is reversed as a triable issue of material fact exists as to whether defendant attorney continued to represent plaintiff during the pendency of a settlement agreement in the underlying action so as to toll the limitations period in the malpractice action.

[05/12] Columbia Venture, LLC v. Dewberry & Davis, LLC
In plaintiff's suit against an independent contractor hired by FEMA to reassess flood elevation maps of an area, alleging professional malpractice and other claims for designating a large portion of plaintiff's property as part of the floodway, district court's order dismissing plaintiff's second amended complaint with prejudice is affirmed as the National Flood Insurance Act (NFIA) preempts plaintiff's state law claims under a theory of obstacle preemption where state law tort claims against FEMA's independent contractors would be an obstacle to the accomplishment of the primary purposes of the NFIA and section 4104.

[05/03] Borges v. Serano-Isern
In plaintiffs' medical malpractice suit against a doctor and a hospital, claiming that the doctor's negligence in his delay in calling for and performing the C-section resulted in numerous physical and neurological injuries to their daughter, district court's grant of summary judgment in favor of defendants is affirmed where: 1) plaintiffs have waived their claim that the district court erred in granting the Hospital's motion for summary judgment by their failure to present any developed argumentation with respect to the Hospital's liability; and 2) plaintiffs' argument that the doctor breached his duty of care through delay in calling for and performing the C-section fails because the plaintiff offered no evidence that the doctor could or should have known, at the relevant time, that the daughter suffered from either Bradycardia or a cord prolapse.

[04/29] Carolina Cas. Ins. Co. v. L.M. Ross Law Group, LLP
In an insurer's action against its insured-law firm, seeking to recover $175,000 it had paid to settle a legal malpractice suit against the law firm, trial court's grant of insurer's motion for summary judgment and denial of the law firm's motion is affirmed as trial court properly granted insurer's motion for summary judgment on the ground exclusion F precluded coverage of the underlying legal malpractice claim.

[04/23] Fulton v. Med. Bd. of California
In plaintiff's suit against the Medical Board of California, claiming that the publication of plaintiff's disciplinary information on its Web site, including information about a medical malpractice judgment entered against plaintiff, and the surrender, retirement, and indefinite suspension of his licenses to practice medicine in other states, is not required to be disclosed because he was no longer licensed in California, judgment of the trial court denying plaintiff's claim for declaratory and injunctive relief is affirmed as Business and Professions Code sections 803.1 and 2027 required the Board to publish the information.

[04/20] Haddad Motor Group, Inc. v. Karp Ackerman Skabowski & Hogan, PC
In plaintiff's suit against its former accounting firm alleging that the firm's negligent tax advice caused plaintiff to incur unnecessary penalties and interest, district court's judgment is affirmed in its entirety, including that district court's fact-finding underlying the Chapter 93A verdict and the treble damage award.

[04/07] Swahn Group, Inc. v. Segal
In a legal malpractice action alleging malpractice by defendants in an underlying breach of contract case, dismissal of the action is reversed where the requirements for judicial estoppel were not met since the trial court did not adopt the claims advanced by the plaintiffs in the settlement of the rescission action that conflicted with claims advanced in the present action.

[04/05] Jocer Enters., Inc. v. Price
In an action for legal malpractice and indemnity against an attorney and a law firm, trial court's order sustaining defendant's demurrer to the second amended complaint without leave to amend on the ground that plaintiffs' claims were time-barred under Code of Civ. Proc. section 340.6 is affirmed in part and reversed in part where: 1) with regard to the legal malpractice claim against the attorney, the sustaining of the demurrer is affirmed but plaintiffs should be granted leave to amend the claim as the fourth tolling provision tolled the one-year limitations period while the attorney was allegedly absent from California; and 2) with respect to the remaining claim, the trial court properly sustained the demurrer and denied leave to amend as the complaint asserts no tenable claim for indemnity against the attorney and no tenable claim of any sort against the law firm.

[03/29] Landmark Screens, LLC v. Morgan, Lewis & Bockius, LLP
In plaintiff's legal malpractice action involving a patent prosecution for an electronic billboard, dismissal of the case following sustaining of a demurrer in favor of the defendants is affirmed as the trial court correctly ruled that this action should be adjudicated in federal court because of the substantial patent questions presented in the elements of causation and damages, and there is no other viable avenue of relief through reliance on the prospect alternative theories for recovery of damages.

[03/26] Reger v. Nemours Found., Inc.
In plaintiffs' medical malpractice suits against a defendant-foundation and its physicians, district court's approval of Clerk's award of costs for defendants following district court's entry of summary judgment in favor of defendants is affirmed where: 1) neither district judge erred by failing to write an opinion explaining his or her reasons for approving the Clerk's award of costs; and 2) the district court did not abuse its discretion in awarding costs to the defendants under Fed.R.Civ.P. 54(d)(1).

[03/24] Cossaboon v. Maine Med. Ctr.
In plaintiff's medical malpractice action claiming defendant's employee breached the standard of care in causing one of her newborn twins to suffer injuries, dismissal of the suit for lack of personal jurisdiction is affirmed as, viewing the contacts relied on by plaintiff in the aggregate, defendant has not deliberately established continuous and systematic contacts with New Hampshire such that it should reasonably anticipate being subject to suit in New Hampshire courts.

[03/16] Methodist Healthcare Sys. of San Antonio, LTD., LLP v. Rankin
In plaintiff's medical malpractice suit against a hospital and two doctors, claiming that defendants left a surgical sponge inside her during a 1995 hysterectomy, the judgment of the court of appeals is reversed as the Texas Constitution's Open Courts provision does not save a malpractice claim where the ten-year statute of repose for healthcare liability claim has expired.

[03/16] Walters v. Cleveland Reg'l Med. Ctr.
In a "surgical sponge" medical malpractice suit, the decision of the court of appeals is reversed and remanded where: 1) plaintiff raised a fact issue as to whether she could avail herself of the Open Courts provision as an exception to the two-year statute of limitations; and 2) Open Courts provision bars application of a two-year statute of limitations in a sponge case, as well as the repose statute, which declares ten years as the last-chance deadline for all malpractice cases, including foreign-object cases.

[03/16] Spectrum Healthcare Res. Inc. v. McDaniel
In plaintiffs' healthcare liability suit, court of appeals' decision reversing trial court's grant of defendants' motion to dismiss after the plaintiffs failed to serve their threshold expert report by the deadline is reversed as, an agreement of the parties that is intended to extend the statutorily mandated 120 day expert report deadline must explicitly state that the agreement is for that purpose.

[03/11] Freedman v. Brutzkus
In plaintiff's action for fraud against defendants, trial court's dismissal of the action following the sustaining of defendants' demurrer is affirmed as a signature of an attorney under the legend "approved as to form and content" on a contract does not amount to an actionable representation to an opposing party's attorney that can provide a basis for tort liability.

[03/04] Aills v. Boemi
In plaintiff's medical malpractice suit against defendant plastic surgeon arising out of negligence in connection with an elective surgical procedure for breast reconstruction, the judgment of the Second District Court of Appeal is quashed and remanded as the district court erred in reversing for a new trial on the basis of an improper argument by plaintiff's counsel during closing argument.

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Professional Malpractice

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Workers' Comp

[06/24] Bifulco v. Patient Bus. & Fin. Serv., Inc.
In plaintiff's wrongful termination suit against her former employer, Fifth District's reversal of trial court's grant of defendant's motion for summary judgment is affirmed as workers' compensation retaliation claims brought against the state under section 440.205 are not subject to the presuit notice requirements of section 768.28(6)

[06/22] Hawaii Stevedores, Inc. v. Ogawa
In a petition for review of a decision of the Benefits Review Board (BRB) affirming an Administrative Law Judge's (ALJ) grant of disability benefits under the Longshore and Harbor Workers' Compensation Act, the petition is granted in part where: 1) the mere fact that an expert witness talked with a party's lawyer and then altered his or her opinion language, though it might be considered relevant, did not require a factfinder to find that expert witness was other than credible; and 2) the ALJ's finding of the maximum medical improvement date was not supported by substantial evidence. However, the petition is denied in part where: 1) the ALJ's finding that petitioner did not meet its burden of demonstrating prejudice was supported by substantial evidence, and respondent's late notice was properly excused; and 2) respondent's stroke qualified as a compensable injury under the Longshore Act.

[06/11] Zenith Ins. Co. v. Ayala
In a worker's compensation suit, the court of appeals' affirmance of trial court's holding that the insurer waived its right to contest compensability by not timely disputing the claimant's lumbar condition diagnosis is reversed and remanded as the sixty-day period for challenging compensability does not apply to a dispute over extent of injury.

[06/04] Nat'l Union Fire Ins. Co. v. VP Bldg., Inc.
In Chapter 11 proceedings, district court's affirmance of the bankruptcy court's decision disallowing an insurer's petition for administrative expenses, on the ground that the claim was not "actual" and did not benefit the estate, is affirmed as pursuant to In re HNRC Dissolution Co., 371 B.R. 210, (E.D. Ky. 2007), the insurer's request for reimbursement is not an "actual" expense within the meaning of the bankruptcy code.

[05/25] Los Angeles County Fire Dep't v. Workers' Comp. Appeals Bd.
WCAB's denial of a county's petition for reconsideration in its claim that the battalion chief for the county fire department was not entitled to any maintenance allowance from September 8, 2005, to September 26, 2006 for his permanent disability, is affirmed in part, reversed in part, and remanded as the battalion chief's right to pending maintenance allowance ended with repeal of former section 139.5 except for that part of the maintenance allowance that was not included in the county's petition for reconsideration and, therefore, became final before the repeal of former section 139.5.

[05/20] State Comp. Ins. Fund v. Superior Court
In plaintiff's suit to collect unpaid premiums it claimed were owed for workers' compensation insurance policies issued to defendant, plaintiff's petition for a peremptory writ of mandate seeking to set aside superior court's grant of summary judgment in favor of defendant is granted where: 1) plaintiff's filing of an amended complaint rendered defendant's motion for summary judgment moot; and 2) the FAC raised new issues of fact regarding when the statute of limitations began to run on plaintiff's fraud claim.

[05/14] Alvarez v. Workers' Comp. Appeals Bd.
In claimant's petition for worker's compensation death benefits, a decision of the Workers' Compensation Appeals Board (WCAB) denying claimant's petition for a new panel qualified medical evaluator under section 4062.3(f) is annulled and remanded as section 4062.3 expressly prohibits ex parte communications with a panel qualified medical evaluator, with the only exception being for communications by the employee or deceased employee's dependent in connection with an examination, and in the event of unauthorized ex parte communication permits the aggrieved party to obtain a new evaluation from another panel qualified medical evaluator.

[05/13] Loranger v. Jones
In a contractor's suit against homeowners for breach of contract, foreclosure of mechanic's lien, quantum meruit, and fraud, trial court's judgment awarding damages to the contractor and denial of homeowners' motion for section 7031 sanctions is affirmed as contractor's testimony that he had a policy of workers' compensation coverage in effect for his construction employees during the period of construction of the homeowners' home is sufficient to meet his burden of proof to show his license was not suspended for failing to obtain workers' compensation insurance coverage pursuant to section 7125.2.

[05/07] In re Odyssey Healthcare, Inc.
In plaintiff's negligence case against her employer, defendant's petition for writ of mandamus is conditionally granted as, the trial court abused its discretion by refusing to grant the defendant's motion to compel arbitration as the plaintiff failed to prove a valid defense against enforcement of her agreement to arbitrate disputes with her employer.

[04/27] Craven v. Director, Office of Wkrs. Comp. Programs
In a petition for review of the Benefits Review Board's denial of petitioner's appeal to the Board, the petition is dismissed where, as a result of petitioner's failure to exhaust his administrative remedies, the court of appeals had no final order from the Board to review.

[04/22] Bollinger Shipyards Inc. v. Director, Office of Wkrs. Comp. Programs
In a petition for review of an order of the Benefits Review Board awarding benefits under the Longshore and Harbor Workers' Compensation Act (LHWCA) to claimant, an undocumented immigrant who fell and injured himself while employed by petitioner, the petition is denied where: 1) claimant was an employee within the intendment of the statute and was thus eligible for workers' compensation benefits; 2) awarding workers' compensation benefits under the LHWCA was a non-discretionary remedy; and 3) the LHWCA expressly provided for the award of benefits to nonresident aliens.

[03/24] Roberts v. Delta Air Lines, Inc.
In a flight attendant's suit against Delta Airlines for injuries she suffered while working on a flight for a company which was owned and operated by Delta Air Lines, despite receiving lump sum workers' compensation payment from the company and Delta's insurer, district court's entry of summary judgment in favor of the defendant is affirmed as plaintiff was Delta's employee at all pertinent times, and as such, plaintiff is barred from bringing suit against Delta under Massachusetts workers' compensation law.

[03/05] Rhine v. Stevedoring Servs. of Am.
In a petition for review of a decision of the Benefits Review Board under 33 U.S.C. section 921(c) of the Longshore and Harbor Workers' Compensation Act, the petition is denied where: 1) a reasonable mind could have concluded that the Pacific Maritime Association Average adequately represented petitioner's annual earning capacity; and 2) the availability of alternative employment was determined by reference to two criteria: the claimant's physical abilities and the economic availability of particular jobs in the market.

[03/03] City of Laguna Beach v. California Ins. Guarantee Ass'n
In a city's action against an insurance company seeking reimbursement for incurring workers' compensation liability that exceeded its self-insured retention, grant of insurance company's motion for summary judgment is affirmed where: 1) the addition of subdivision (c)(13) to Ins. Code section 1063.1 did not abrogate Denny's Inc. v. Workers' Comp. Appeals Bd., 104 Cal.App.4th 1433 (2003); 2) the trial court properly invoked the Denny's rule when it granted summary judgment and concluded that the city cannot obtain reimbursement from defendant under section 1063.1(c)(13) as, although this provision renders the obligation of an insolvent excess workers' compensation insurer a "covered claim" that defendant must ordinarily reimburse, defendant need not reimburse a permissibly self-insured employer for benefits paid to an employee for cumulative injury if the employer's liability is based in part on a period of time when the employer was self-insured and chose not to buy excess insurance for the particular risk.

[02/26] Lara v. Workers' Comp. Appeals Bd.
Workers' Compensation Appeals Board's decision against the petitioner and in favor of the defendant is affirmed as, the petitioner, hired twice in the space of 12 months to prune bushes for a diner, was not an employee of the diner at the time he sustained injury, but rather, he was an independent contractor exempt from workers' compensation coverage.

[02/26] Elliott v. Workers' Comp. Appeals Bd.
Decision of the WCAB that plaintiff's employer was not obligated to provide the requested spinal surgery is reversed and remanded as, in light of its en banc decision in Cervantes v. El Aguila Food Products, Inc. (2009) 74 Cal.Comp.Cases 1336 explicitly denouncing the Brasher holding relied on by the WCAB in this case, the employer is ordered to authorize the requested surgery or object to the treating physician's recommendation under 4062(b) within 10 days of receipt of this order, thereby commencing the spinal surgery second opinion process.

[02/12] Conley v. Nat'l Mines Corp.
Order of the Benefits Review Board reversing an Administrative Law Judge's award of black lung benefits on a widow's claim filed by petitioner under the Black Lung Benefits Act after her husband died of metastatic lung cancer is affirmed as the Board did not err in concluding that the decedent's treating physician's opinion was insufficient to carry the widow's burden of proof, based on the standard previously articulated in Eastover Mining Co. v. Williams, 338 F.3d 501 (6th Cir. 2003).

[01/29] Firemans' Fund Ins. Co. v. Workers' Comp. Appeals Bd.
An order of the Workers' Compensation Appeals Board (WCAB) denying Fireman's Fund Insurance Company's petition for reconsideration regarding a stipulation entered into by plaintiff and the California Insurance Guarantee Association in 2001 is annulled and the matter is remanded where: 1) CIGA's stipulations and a subsequently entered order on the stipulations were not a nullity and void; and 2) the WCAB improperly exercised its discretion under the Labor Code section 5803 to set aside the order entered on the stipulations on the ground of illegality and public policy.

[11/25] Duncan v. Workers' Comp. Appeals Bd.
Plaintiff's petition for review of a decision by the Workers' Compensation Appeals Board is granted and the Board's decision annulled as the cost of living adjustment pursuant to Labor Code section 4659(c) for life pensions and total disability indemnity are added to those payments, per the words of the statute, starting January 1, 2004, and every January 1 thereafter.

[11/13] Gelson's Markets, Inc. v. Workers' Comp. Appeals Bd.
Workers' Compensation Appeals Board's decision and award finding the employer liable for discrimination against an industrially injured employee because the employer did not accept a physician's release to allow the employee to return to work is annulled as the employee did not establish a prima facie showing of employer's liability for discrimination in violation of Labor Code section 132a, and as such, the burden did not shift to the employer to establish an affirmative defense.

[11/04] Liberty Mut. ins. Co. v. Hurlbut
In a constitutional challenge to two amendments to the New York Workers' Compensation Law, the district court's judgment abstaining from the case is affirmed where Burford abstention was appropriate because federal court intervention would be disruptive of a carefully established state system, and might also yield inconsistent and therefore conflicting results.

[10/30] Ins. Co. of the State of Pennsylvania v. Lejeune
In plaintiff's worker's compensation case against his employer's insurance carrier, court of appeals' default judgment against the defendant is reversed and remanded as the clerk's endorsement of the return of citation did not satisfy Rules 16 and 105.

[09/28] Person-Gaines v. Pepco Holdings, Inc.
Decision of the Industrial Board denying claimant's petition for additional work-related injury compensation is affirmed as the record shows the IAB's findings of fact were bases on expert testimony it deemed reliable and those findings - that claimant's petition and the expert testimony failed to establish any additional permanent impairment related to her 1988 work injury - were supported by substantial evidence.

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