Legal News

Case Summaries

Admiralty

[07/23] Northwest Envtl. Advocates v. US Envtl. Prot. Agency
In an action challenging a regulation originally promulgated by the EPA in 1973 exempting certain marine discharges from the permitting scheme of sections 301(a) and 402 of the Clean Water Act (CWA), a decision vacating the regulation is affirmed where: 1) the district court had subject matter jurisdiction over the suit; 2) the EPA acted ultra vires in promulgating the regulation and its denial of plaintiffs' 1999 petition requesting a repeal of the regulation was not in accordance with law; and 3) the remedial order was a proper exercise of the district court's discretion.

[07/16] Turbomeca, S.A. v. Era Helicopters LLC
In a suit for economic loss arising out of the loss of a helicopter due to engine trouble, dismissal of tort claims alleging post-sale failure to warn of a pre-sale product defect is affirmed where: 1) the circuit court refuses to recognize an exception to the East River doctrine for post-sale negligent failure to warn claims; and 2) purchaser is restricted to a warranty or contract cause of action under maritime law.

[07/15] Kirksey v. Tonghai Maritime
In a negligence action brought under 33 U.S.C. section 905(b), judgment for plaintiff is reversed, the case remanded, and judgment rendered for defendants where: 1) a defect in the cargo stow was open and obvious to plaintiff; and 2) defendants did not have a turnover duty to warn or to furnish a reasonably safe ship against an obvious defect or unsafe condition.

[07/10] AGA Fishing Group, Ltd. v. Brown & Brown, Inc.
In a suit alleging that defendant owed a duty to recommend an adequate level of protection and indemnity coverage, summary judgment for defendants on all claims is affirmed where plaintiff did not show the existence of special circumstances that created a duty of care.

[06/25] Exxon Shipping Co. v. Baker
In an action brought against Exxon for economic losses resulting from the Exxon Valdez oil spill, a circuit court ruling remitting the punitive damages award to $2.5 billion is vacated and remanded for further reduction where: 1) the Court was equally divided on the question of whether a shipowner may be liable for punitive damages without acquiescence in the actions causing harm, and thus the circuit court's opinion is undisturbed on the issue; 2) federal statutory law does not bar a punitive award on top of damages for economic loss; but 3) the award in this case should be limited to an amount equal to compensatory damages, or approximately $500 million.

[05/22] McLaurin v. Noble Drilling (US) Inc.
In a negligence action, summary judgment for defendant is reversed and remanded where: 1) a claim under section 905(b) of the Longshore and Harbor Workers' Compensation Act (LHWCA) for vessel negligence is not cognizable since plaintiff was not injured "on navigable waters;" and 2) section 933 of the LHWCA preserves a maritime worker's ability to pursue separate claims against third parties including vessel owners allegedly responsible for the injury.

[05/13] Price v. Connolly-Pac. Co.
In an action brought by a "commuter seaman" claiming entitlement to "maintenance and cure" from his employer under maritime laws after he allegedly contracted West Nile encephalitis while working on a ship, judgment for employer is affirmed over claims that: 1) under the Shipowner's Liability Convention of 1936, a seaman only needs to prove that an illness incurred, aggravated or manifested itself during the period of employment instead of while in the service of a vessel; and 2) even if a commuter seaman is not on call or engaged in an activity generally considered in the service of a vessel, maintenance and cure is required if an illness is contracted while the seaman is participating in an on-shore activity which benefits the employer.

[05/08] Royal Ins. Co. of Am. v. Orient Overseas Container Line Ltd.
In an action brought by Ford and its cargo insurer against defendant-ocean carrier for damages arising from the loss of cargo during a transatlantic voyage, partial summary judgment for defendant and third-party defendants is reversed where the district court erroneously interpreted the bill of lading to apply Carriage of Goods by Sea Act (COGSA) instead of the Hague-Visby Rules, and additional briefing and fact-finding may be required before the liability limitation may be appropriately applied. (Amended opinion)

[04/24] US v. Shi
A foreign national who forcibly seizes control of a foreign vessel in international waters may be subject to the jurisdiction of the U.S. when such vessel is intercepted by federal authorities. Foreign national's conviction and sentence for seizing control over a ship by force, and performing an act of violence likely to endanger the safety of the ship, is affirmed over challenges regarding: 1) the district court's jurisdiction; 2) the sufficiency of the indictment; 3) the admissibility of a statement to an agent; 4) the admissibility of letters seized from defendant's bunk; and 5) the constitutionality of his sentence.

[04/22] Great Lakes Exploration Group, LLC v. Unidentified Wrecked & Abandoned Sailing Vessel
In an in rem admiralty action brought by a private underwater exploration and salvage company seeking an arrest warrant for an ancient sailing vessel that sank in Lake Michigan in the 1600's, the circuit court rules that a district court may require a salvor to reveal the precise location of a shipwreck at the pleading stage where: 1) there is a need for the precise location because, for example, the embedded status of the shipwreck under the Abandoned Shipwreck Act (ASA) is in dispute; 2) the requested information is available and in the salvor's possession; and 3) the district court has taken sufficient steps to secure federal jurisdiction over the claim and, when warranted, to protect the information from public disclosure.

[04/21] In re: Aramark Leisure Servs. v. Kendrick
In a special proceeding under the Limitation of Vessel Owner's Liability Act arising from a boating accident, and involving coverage for the accident, a judgment finding that plaintiff-vessel owner's insurer was required to provide primary coverage to the vessel operator is reversed and remanded where: 1) there was federal subject matter jurisdiction over the matter; and 2) the district court erred in holding the insurer liable to the operator, as the insurer had a valid escape clause and the operator has no claim against it that he is required to exhaust under Utah Code Ann. section 31A-28-213(1)(a).

[04/10] US v. Vilches-Navarrete
Conviction and sentence for cocaine possession in violation of Maritime Drug Law Enforcement Act ("MDLEA") and conspiracy to distribute cocaine is affirmed over defendant's claims that: 1) the MDLEA is unconstitutional; 2) the district court lacked jurisdiction; 3) the district court erroneously refused to suppress evidence; 4) there was insufficient evidence to sustain his conviction; and 5) his sentence was unreasonable under Booker; and 6) cumulative errors in the case prejudiced his right to a fair trial.

[04/02] The Rice Co. (Suisse), S.A. v. Precious Flowers Ltd.
In an action brought by a rice shipper against defendants arising from damages sustained by rice cargo, denial of defendants' motion to compel arbitration in New York is affirmed where: 1) the parties to instruments at issue unambiguously structured their relationship such that defendant-vessel owner was not a party to the voyage charter containing the arbitration clause; 2) the district court did not err in holding that the bill of lading did not bind the vessel owner to the voyage charter's mandatory arbitration clause; and 3) the circuit court rejects a claim that if a bill of lading contains any arbitration clause, the in rem vessel and the in personam representative of the vessel must be compelled to arbitrate.

[04/01] Porina v. Marward Shipping Co., Ltd.
In a tort action against a ship owner for a collision allegedly caused by its negligent operations, dismissal of the complaint for lack of personal jurisdiction is affirmed where: 1) the owner of a vessel may not constitutionally be subjected to personal jurisdiction with respect to an unrelated suit merely because, as the owner may have expected, the vessel has repeatedly visited the forum's ports at the sole direction of its charterers; and 2) defendant's contacts with the United States did not satisfy the heightened minimum contacts requirement for general jurisdiction over a non-resident.

[03/27] In Re City of New York
In a tort action arising out of a ferry crash into a maintenance pier, a bench trial judgment which found the city negligent and denied limitations of liability is affirmed where the city did not act with reasonable care when it allowed a single pilot to operate the Staten Island Ferry without at least one other person in or near the pilothouse, aware of the navigational circumstances, and ready to render or summon assistance in the event of an emergency.

[03/20] New Hampshire Ins. Co. v. C'Est Moi, Inc.
In an action to rescind an insurance policy arising after defendant-insured's yacht sank, summary judgment for the insurer is affirmed where: 1) the parties didn't attempt to contract out of uberrimae fidei, or the federal maritime doctrine imposing a duty of utmost good faith in the context of marine insurance contracts; 2) the insured misrepresented material facts in an insurance policy application; and 3) thus, insurer was entitled to rescind the policy.

[03/17] US v. Approximately 64,695 Pounds of Shark Fins
In a case arising from a civil complaint brought by the government for the forfeiture under the Shark Finning Prohibition Act of 64,695 pounds of shark fins owned by claimant and found on board a U.S. vessel, a judgment of forfeiture is reversed and remanded where neither the statute nor regulations provided fair notice to claimant that the vessel, which purchased the fins at sea from other vessels, would be considered a fishing vessel under 16 U.S.C. section 1802(18)(B).

[03/11] Trans-Tec Asia v. M/V Harmony Container
A foreign supplier, by supplying fuel to a foreign-flagged vessel in a foreign port under an agreement that U.S. law applied to the transaction, may obtain a maritime lien under the Federal Maritime Lien Act, 46 U.S.C. section 31301 et seq. (FMLA), on the vessel docked in an American port.

[03/07] Day v. James Marine, Inc.
A ruling finding that a portion of the attorney's fees petitioner incurred in seeking workers' compensation did not shift to his employer under the Longshore and Harbor Workers' Compensation Act is affirmed in part and reversed in part where: 1) the Act does not allow an employee to collect attorney's fees incurred before the employer has rejected the employee's claim; but 2) the Act does allow, and indeed requires, fee shifting from the time the employer rejects the employee's claim through the employee's successful prosecution of that claim.

[03/06] Norwegian Bulk Transport A/S v. Int'l Marine Terminals P'ship
In an action brought for breach of a maritime contract and tort, a judgment dismissing plaintiff's complaint is affirmed for the reasons given by the district court in its Order and Reasons, which are adopted by the circuit court.

[03/03] In re M/V DG Harmony
In case involving liability for the explosion and resulting constructive total loss of the container ship the M/V DG Harmony, district court's finding that defendant PPG, which manufactured and shipped approximately 160,000 kilograms of calcium hypochlorite, was solely responsible for the explosion and loss, is reversed in part as to holdings that PPG was strictly liable under section 4(6) of the Carriage of Goods by Sea Act, and that it was liable under a general negligence theory. The judgment is vacated as the district court failed to address whether a warning, if given, would have prevented the harm.

[02/27] Pac. Merchant Shipping Ass'n v. Goldstene
In an action brought to enjoin the enforcement of state regulations limiting emissions from the auxiliary diesel engines of ocean-going vessels within twenty-four miles of California's coast, an injunction against the rules' enforcement is affirmed and reimposed as the Clean Air Act section 209(e)(2) preempts the Marine Vessel Rules and requires California to obtain EPA authorization prior to enforcement because the Rules are "emissions standards" that require that engines "not emit more than a certain amount of a given pollutant."

[02/21] Cain v. Transocean Offshore USA, Inc.
The Supreme Court's decision in Stewart v. Dutra Constr. Co., 543 U.S. 481 (2005), has not effectively overruled circuit precedent holding that a watercraft under construction is not a "vessel in navigation" for purposes of the Jones Act, because the decision did not concern or address the point at which a vessel-to-be actually becomes a vessel.

[02/20] Taylor v. TECO Barge Line, Inc.
In a former deckhand's suit against his former employer claiming exposure to coal tar left him with a permanent, severe skin reaction, a judgment pursuant to a jury award of $1 million for plaintiff is affirmed over claims that: 1) the district court made three evidentiary errors; 2) it erred in denying a motion for a judgment as a matter of law; 3) it erred in refusing to offer a jury instruction on the harmlessness of the chemical in question; and 4) the jury verdict was excessive.

[02/11] Certain Underwriters at Lloyds London v. Inlet Fisheries Inc.
The doctrine of uberrimae fidei, in which both parties are held to the highest standard of good faith in the transaction, applies to vessel pollution insurance policies covering statutory environmental liabilities.

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Class Actions

[07/22] Brinker Restaurant Corp. v. Superior Ct
In an action involving alleged violations of laws governing rest and meal breaks on transfer from the state supreme court, the court of appeals rules that: 1) while employers cannot impede, discourage or dissuade employees from taking rest periods, they need only provide, not ensure, rest periods are taken; 2) employers need only authorize and permit rest periods every four hours or major fraction thereof and they need not, where impracticable, be in the middle of each work period; 3) employers are not required to provide a meal period for every five consecutive hours worked; 4) while employers cannot impede, discourage or dissuade employees from taking meal periods, they need only provide them and not ensure they are taken; and 5) while employers cannot coerce, require or compel employees to work off the clock, they can only be held liable for employees working off the clock if they knew or should have known they were doing so.

[07/22] Bondi v. Capital & Fin. Asset Mgmt. S.A.
Denial of motion by debtor in foreign bankruptcy proceedings to enjoin actions brought against it in the United States is affirmed where the district court acted within its sound discretion in interpreting 11 U.S.C. section 304(c)'s instruction to assure an economical and expeditious administration of a foreign estate.

[07/21] In re Lugo
In a habeas class action on behalf of parole-eligible life prisoners involving, inter alia, efforts to reduce the backlog of parole suitability hearings, an order by the trial court in the matter is affirmed with respect to an attorney's fee award but reversed to the extent the order required the Board "not to deny further parole consideration for more than one year in the case of prisoners who have formerly been denied for one year, in the absence of a significant change in circumstances, which must be stated on the record." A separate order is reversed to the extent it related to the preparation of parole hearing transcripts or imposed penalties for the untimely preparation of such transcripts.

[07/18] LA ex rel Caldwell v. Allstate Ins. Co.
In a parens patriae action alleging violations of Louisiana's antitrust laws, denial of plaintiff's motion to remand the case back to state court after removal to federal court pursuant to the Class Action Fairness Act is affirmed where: 1) the Louisiana attorney general has power to bring parens patriae antitrust actions and possesses broad powers to vindicate the interests of the state; 2) the policyholders and not the state are the real parties in interest due to the state's request for treble damages; and 3) plaintiff waived its Eleventh Amendment immunity.

[07/18] Fidel v. Farley
In the context of a securities class-action settlement, a nonintervening, nonnamed class member is a "party" for the purpose of appealing approval of a settlement.

[07/17] Owen v. Gen. Motors Corp.
In a putative class action brought against GM after plaintiffs' windshield wipers failed alleging breach of warranty, breach of contract, unjust enrichment, fraudulent concealment and violations of the Missouri Merchandising Practices Act (MMPA), dismissal and other rulings against plaintiffs are affirmed where: 1) the district court did not err in dismissing breach of warranty and fraudulent concealment claims on statute of limitations grounds; 2) dismissal of a breach of contract claim was proper as well; 3) there was no abuse of discretion in denying leave to amend; 4) summary judgment on the state law MMPA claim was proper as plaintiffs presented no evidence from which a jury reasonably could conclude that their loss was the result of the alleged defect that GM failed to disclose.

[07/16] Brack v. Omni Loan Co., Ltd.
In a suit alleging violations of borrower's rights under the Finance Lenders Law, and raising claims under the Consumers Legal Remedies Act and Unfair Competition Law, dismissal of the suit based on choice of law provisions in the loan agreements is reversed where: 1) the Finance Lenders Law represents a fundamental policy of the state and application of the provisions would undermine the policy; and 2) application of Nevada law would impair California's regulatory interests to a far greater extent than application of California law would impair Nevada's interests.

[07/15] Sony Computer Enter. Am., Inc. v. Am. Home Assurance Co.
In a suit brought by Sony against insurers for failing to indemnify and defend it in a class action suit alleging product defects in the Sony PlayStation 2 video game system, summary judgment for defendants is affirmed where neither insurance company had a duty to indemnify or defend Sony in the underlying lawsuit, primarily since the suit did not assert claims within the meaning of the term "negligent publication." The circuit court defines the term "negligent publication" as a narrow tort in which the publication of material encourages or instructs readers to engage in harmful conduct.

[07/11] Huber v. Taylor
In a suit for compensatory damages, disgorgement of attorneys' fees, and punitive damages against defendants-attorneys who represented the plaintiffs in asbestos personal injury actions, dismissal rulings against plaintiffs and a sua sponte determination that plaintiff's local counsel were necessary and indispensable parties who had not been named in the complaint is reversed and the case remanded where: 1) the court had subject matter jurisdiction since there was no basis for a finding that the legal impossibility of recovery was so certain as to negate plaintiffs' allegations regarding the amount in controversy; and 2) there was no basis for treating local counsel as necessary parties who must be joined under Rule 19(a)(2)(i).

[05/30] In re: NVE Corp. Sec. Litig
In a putative securities class action alleging that a corporation and certain of its directors and officers had made false and misleading statements concerning the development of a novel computer memory technology, judgment denying plaintiffs' request for another amendment to their complaint and granting a defense motion to dismiss is affirmed where: 1) the district court did not err in finding that plaintiffs' complaint did not satisfy the applicable pleading requirements for securities actions; and 2) plaintiffs did not articulate any proposed changes to their complaint, nor did they show how revision rectify their pleading deficiencies.

[05/30] Harney v. Speedway SuperAmerica, LLC
In a class action alleging that the manner in which defendant paid and forfeited its employees' bonuses violated Indiana's Wage Payment Statute and Wage Claims Statute, summary judgment for defendant is affirmed where: 1) the bonuses were condition on continued employment and plaintiffs failed to meet this criteria; 2) even if the unpaid bonuses could be considered "wages" they are considered deferred compensation and subject to forfeiture; 3) plaintiffs were not entitled to damages from defendant's failure to pay the bonuses within a statutory ten day period since bonuses are not wages; and 4) certification of certain questions of state law to the Indiana Supreme Court is denied.

[05/27] Zaluski v. United Am. Healthcare Corp.
In a class action suit alleging defendants failed to disclose that defendant-health care corporation was making illegal payments to a former state senator in violation of securities laws, dismissal of the complaint is affirmed where: 1) defendant's statements in its SEC filings were not material statements since they were "loosely optimistic" statements that were not the type to be relied on by investors; 2) defendant's failure to disclose the potential consequences of the payments to the senator was not actionable since the consequences of the failure to disclose turned on decisions made by actors outside of defendant's control; and 3) knowledge of the payments, the termination of an employee who subsequently filed a whistleblower action, and the potential for investigation, did not give rise to a "probability" of impairment under the GAAP in order to determine whether disclosure was necessary.

[05/22] TJX Companies, Inc. v. Superior Court (Caldwell)
In a review of lower court rulings of a pending class action based on alleged violations of a statute prohibiting businesses from requiring credit cards users to provide certain personal identification information, the court of appeals rules that: 1) because the statute imposes a "penalty", it is subject to the one-year statute of limitations of Code of Civil Procedure section 340; and 2) based on the plain meaning of the statutory language, the statute does not apply to merchandise returns.

[05/15] In re Scrap Metal Antitrust Litigation
In an antitrust action involving the scrap metal market in Northeastern Ohio, judgment and damages award for plaintiffs are affirmed where: 1) there was no abuse of discretion in allowing expert testimony based on allegedly erroneous data; 2) the fact that the jury awarded damages are below the figure mentioned by an expert witness did not mean that there was insufficient evidence since the jury was entitled to award damages based on expert testimony it found credible; 3) there was no "impermissible fluid recovery" since plaintiffs provided evidence of a class-wide aggregate injury; 4) there was no abuse of discretion in the certification of a class ; and 5) any error in instructions to the jury regarding fraudulent concealment was harmless since the jury heard evidence of fraudulent concealment dating before the earliest date of consideration set by the court.

[05/13] Bufil v. Dollar Fin. Group, Inc.
In a purported class action against an employer alleging violation of meal and rest break labor laws, a judgment entered in favor of employer along with a denial of plaintiff's motion for class certification are reversed where the trial court erred in: 1) concluding that issue preclusion principles should bar plaintiff's request for class certification under applicable precedents; and 2) finding that individual issues predominated over common issues, class members were unascertainable, and a class action was not the superior method for resolving the litigation.

[05/13] Estate of Pew v. Cardarelli
In an appeal primarily addressing whether a claim fell within the exception to the Class Action Fairness Act's ("CAFA") grant of original and appellate jurisdiction for class actions which solely involve claims concerning certain rights and duties related to any security, the circuit court: 1) rules that the suit at hand does not fall within such exception to CAFA jurisdiction, and thus it has authority to accept an appeal from a remand order; 2) grants defendant's petition for leave to appeal; and 3) reverses the district court's remand order on the merits.

[05/02] Savedoff v. Access Group, Inc.
In a class action raising breach of contract claims, partial summary judgment for plaintiff on the issue of liability on such claims is affirmed in part and reversed in part, and remanded where: 1) the language of the contract did not limit defendant's collection of additional interest to a borrower's final monthly payment at the end of the loan term; 2) the language of the contract did not prohibit defendant from collecting additional interest from borrower's regular monthly payments; and 3) the contract was silent as to the application of borrower's monthly payments to the additional interest before applying them to reduce the principal balance.

[04/29] Negrete v. Allianz Life Ins. Co. of N. Am.
In a class action lawsuit against an insurance corporation challenging the sale of its fixed deferred annuities, an order, which effectively prevents defendant from proceeding with any settlement negotiations on similar class action claims raised in any other courts without permission from plaintiff's lead counsel, is reversed where: 1) in the context of the All Writs Act, there was no proper support for the district court's enjoining of proceedings in other courts; and 2) even if there were, the Anti-Injunction Act barred such injunction.

[04/25] Kirschbaum vs. Reliant Energy, Inc.
Certification of a class and grant of corporate defendants' motion for summary judgment on all claims related to plaintiff-employee's ERISA class action is affirmed where: 1) even if defendants had a fiduciary duty to liquidate a particular investment option in the plan (defendant-company's stock fund) and cease purchasing its shares, notwithstanding the plan's express contrary requirements; nevertheless, 2) plaintiff fell short of bearing his heavy burden to rebut the presumption that defendants satisfied their legal duties.

[04/22] Camacho v. Bridgeport Fin., Inc.
An order awarding plaintiff in a putative class action alleging violations of the Fair Debt Collection Practices Act (FDCPA) over $77,000 in merits fees, costs, and fees-on-fees, based in part on the district court's multiplying the number of hours worked by each of her three attorneys by an hourly rate of $200, is vacated and remanded where the district court erred: 1) by not identifying the relevant community and by not explaining what was the prevailing hourly rate in that community for similar services by lawyers of reasonably comparable skill, experience and reputation; and 2) by awarding a "flat award" of $500 for fees-on-fees.

[04/22] Gutierrez v. Johnson & Johnson
In a class action against former employer on grounds of racial discrimination, a petition for permission to appeal a denial of class certification is dismissed where petitioner's Fed. R. Civ. Pro. 23(f) petition was untimely.

[04/22] Benzman v. Whitman
An order denying in part and granting in part defendants' motions to dismiss claims for damages against former EPA administrator, and for other relief against EPA for alleged constitutional and statutory violations in the aftermath of the 9/11 disaster, is reversed in part where the district court improperly denied defendants' motion to dismiss: 1) claims of Fifth Amendment substantive due process violations to be free from government-created health risk; and 2) constitutional claims under the Administrative Procedure Act.

[04/21] Williams v. Gerber Prods. Co.
In a class action alleging deceptive marketing of a food product for toddlers, dismissal of the suit is reversed where: 1) deficiencies in appellants' opening brief do not warrant dismissal since the claim has merit; 2) appellants have stated a claim and could plausibly prove that a reasonable consumer would be deceived by the product's packaging; and 3) the district court erred in concluding, without considering any evidence beyond the packaging itself, that appellants' complaint failed to state a viable claim.

[04/21] Chavez v. Netflix, Inc.
In an action against Netflix alleging that its advertised practices of sending customers "unlimited" DVD rentals with "1 Day Delivery" for a flat monthly rate were false wherein Netflix agreed to settle the class action before the class was certified, approval of the settlement and award of attorney fees are affirmed over claims that the trial court abused its discretion in: 1) denying a motion for leave to intervene, 2) approving a settlement agreement which failed to promote the purpose of class litigation; 3) affording a deficient notice to class members; and 4) determining the amount of fees awarded to class counsel.

[04/18] Zanen v. Qwest Wireless, LLC
Dismissal of plaintiff's unjust enrichment claims premised on defendant acting as an unlicensed seller of insurance in violation of State laws is affirmed where violation of a licensing statute, without more, was insufficient to support an unjust-enrichment claim against one who has performed as promised.

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Consumer Protection

[07/17] Owen v. Gen. Motors Corp.
In a putative class action brought against GM after plaintiffs' windshield wipers failed alleging breach of warranty, breach of contract, unjust enrichment, fraudulent concealment and violations of the Missouri Merchandising Practices Act (MMPA), dismissal and other rulings against plaintiffs are affirmed where: 1) the district court did not err in dismissing breach of warranty and fraudulent concealment claims on statute of limitations grounds; 2) dismissal of a breach of contract claim was proper as well; 3) there was no abuse of discretion in denying leave to amend; 4) summary judgment on the state law MMPA claim was proper as plaintiffs presented no evidence from which a jury reasonably could conclude that their loss was the result of the alleged defect that GM failed to disclose.

[07/16] Sovereign Bank v. BJ's Wholesale Club, Inc.
Orders dismissing claims arising from the theft of credit card information from a retailer's computer files are affirmed in part and reversed in part where: 1) respective grants of summary judgment to defendant-acquirer on question of whether plaintiffs-card issuers were intended third-party beneficiaries under state law of the contract between defendant-acquirer and defendant-merchant required reversal, as plaintiffs had met their burden to show the existence of a genuine issue of material fact; 2) dismissal of equitable indemnification claims for cardholders' losses due to unauthorized charges was proper since TILA section 1643 addresses only the liability of cardholders, not card issuers, for unauthorized charges; 3) the economic loss doctrine barred recovery for negligence where plaintiff suffered only monetary losses without any accompanying physical or property damage; 4) for purposes of an unjust enrichment claim, plaintiff could not show that defendants derived more than an incidental benefit from plaintiff's conduct.

[07/16] Brack v. Omni Loan Co., Ltd.
In a suit alleging violations of borrower's rights under the Finance Lenders Law, and raising claims under the Consumers Legal Remedies Act and Unfair Competition Law, dismissal of the suit based on choice of law provisions in the loan agreements is reversed where: 1) the Finance Lenders Law represents a fundamental policy of the state and application of the provisions would undermine the policy; and 2) application of Nevada law would impair California's regulatory interests to a far greater extent than application of California law would impair Nevada's interests.

[07/15] Campfield v. State Farm Mut. Auto. Ins. Co.
In a suit alleging violations of the Sherman Act, the Colorado Consumer Protection Act (CCPA), and tortious interference with contractual relations, dismissal and summary judgment for defendant, and a decision not to rule on plaintiff's objection to discovery orders are affirmed where: 1) plaintiff's claims under section 2 of the Sherman Act failed to allege an appropriate market; 2) defendants dod not engage in per se horizontal restraint of trade under section 1 of the Act; 3) claims under section 1 of the Sherman Act failed for failure to allege a legally relevant market; 4) plaintiff has failed to provide sufficient evidence for a CCPA claim; 5) tortious interference claims failed for lack of evidence; and 6) there was no abuse of discretion in not ruling on plaintiff's discovery motion.

[07/15] Sony Computer Enter. Am., Inc. v. Am. Home Assurance Co.
In a suit brought by Sony against insurers for failing to indemnify and defend it in a class action suit alleging product defects in the Sony PlayStation 2 video game system, summary judgment for defendants is affirmed where neither insurance company had a duty to indemnify or defend Sony in the underlying lawsuit, primarily since the suit did not assert claims within the meaning of the term "negligent publication." The circuit court defines the term "negligent publication" as a narrow tort in which the publication of material encourages or instructs readers to engage in harmful conduct.

[07/14] Tammi v. Porsche Cars N. Am., Inc.
In a suit brought under Wisconsin's Lemon Law for a Porsche leased by plaintiff, a jury verdict for plaintiff is affirmed where: 1) there was sufficient evidence presented that the vehicle plaintiff leased suffered a nonconformity that substantially impaired its use; and 2) the jury's verdict was not against the clear weight of the evidence regarding the substantial impairment of the use of the vehicle. However, the circuit court stays remand of the appeal and certifies four questions to the Wisconsin Supreme Court regarding pecuniary loss under Wisconsin law.

[05/22] TJX Companies, Inc. v. Superior Court (Caldwell)
In a review of lower court rulings of a pending class action based on alleged violations of a statute prohibiting businesses from requiring credit cards users to provide certain personal identification information, the court of appeals rules that: 1) because the statute imposes a "penalty", it is subject to the one-year statute of limitations of Code of Civil Procedure section 340; and 2) based on the plain meaning of the statutory language, the statute does not apply to merchandise returns.

[05/14] Saunders v. Branch Banking and Trust Co. of Virginia
In an action alleging violation of defendant-lender's duties as a furnisher of information under the Fair Credit Reporting Act (FCRA), judgment against defendant including a denial of defendant's motions for judgment as a mater of law and for remittitur is affirmed where: 1) a decision by defendant to report a debt to credit reporting agencies without mention of a dispute was in violation of section 1681s-2 of the FCRA; 2) plaintiff was able to demonstrate that defendant knowingly and intentionally withheld information of a valid dispute from credit reporting agencies; 3) there were sufficient facts for a jury to find that plaintiff had an excuse for failing to make payments; and 4) an $80,000 punitive award was not grossly excessive in light of defendant's reprehensible conduct and the fact that a lower award would not have a punitive or deterrent effect.

[05/06] Pludeman v. N. Leasing Sys., Inc.
The court of appeals rules that plaintiffs sufficiently pleaded a cause of action for fraud against individually-named corporate defendants pursuant to CPLR 3016(b) where it was not unequivocal, as a matter of law, that a finder of fact could not reasonably infer the requisite knowledge or participation by the individual defendants in an act of fraud.

[04/30] Clark v. Time Warner Cable
The doctrine of primary jurisdiction permits a district court to refer a claim raising a novel and technical question of federal telecommunications policy to the Federal Communications Commission (FCC) for its consideration in the first instance.

[04/30] Trans-Spec Truck Serv., Inc. v. Caterpillar Inc.
In a case applying the accrual and statute of limitations provisions of the Massachusetts U.C.C. to breach of warranty claims brought against an engine manufacturer, dismissal of plaintiff's warranty and Massachusetts Gen. Laws chapter 93A claims as time-barred, as well as summary judgment for defendant on plaintiff's negligence claims, are affirmed where: 1) the breach of warranty claim, accruing on the date of delivery of goods, was filed after the expiration of the limitations period, and plaintiff's equitable estoppel arguments were unavailing; and 2) plaintiff made no compelling argument and cited no specific facts which would invalidate the exculpatory language contained in a negligence exclusion clause.

[04/25] Ross v. Bank of America, N.A.
In an appeal involving whether mandatory arbitration clauses found in credit card contracts issued by defendants, assuming they were products of illegal collusion among credit providers, give rise to Article III standing, dismissal of plaintiffs-cardholders' antitrust suit is vacated and remanded where: 1) the district court erroneously held that plaintiff-cardholders failed to allege an "injury in fact" sufficient to confer Article III standing; and 2) plaintiffs' claims were ripe for adjudication.

[04/24] Ackermann v. Wyeth Pharm.
In case brought plaintiff-wife alleging that defendant failed to adequately warn about drug-induced risk of suicide from its drug Effexor, leading to her husband's suicide, summary judgment against plaintiff is affirmed where plaintiff failed to demonstrate causation under the learned-intermediary doctrine.

[04/22] Camacho v. Bridgeport Fin., Inc.
An order awarding plaintiff in a putative class action alleging violations of the Fair Debt Collection Practices Act (FDCPA) over $77,000 in merits fees, costs, and fees-on-fees, based in part on the district court's multiplying the number of hours worked by each of her three attorneys by an hourly rate of $200, is vacated and remanded where the district court erred: 1) by not identifying the relevant community and by not explaining what was the prevailing hourly rate in that community for similar services by lawyers of reasonably comparable skill, experience and reputation; and 2) by awarding a "flat award" of $500 for fees-on-fees.

[04/21] Williams v. Gerber Prods. Co.
In a class action alleging deceptive marketing of a food product for toddlers, dismissal of the suit is reversed where: 1) deficiencies in appellants' opening brief do not warrant dismissal since the claim has merit; 2) appellants have stated a claim and could plausibly prove that a reasonable consumer would be deceived by the product's packaging; and 3) the district court erred in concluding, without considering any evidence beyond the packaging itself, that appellants' complaint failed to state a viable claim.

[04/21] SC Manufactured Homes, Inc. v. Liebert
In an appeal involving allegations that a mobilehome park and a number of mobilehome dealers were involved in an illegal arrangement whereby prospective park tenants were forced to buy a mobilehome from one of the dealers in order to secure a space in the park, dismissal of the complaint is affirmed where plaintiff had not stated causes of action for violating the Cartwright Act, the Unfair Competition Law, or interference with prospective economic advantage.

[04/18] Zanen v. Qwest Wireless, LLC
Dismissal of plaintiff's unjust enrichment claims premised on defendant acting as an unlicensed seller of insurance in violation of State laws is affirmed where violation of a licensing statute, without more, was insufficient to support an unjust-enrichment claim against one who has performed as promised.

[04/15] Platt Elec. Supply, Inc. v. EOFF Elec., Inc.
In an action alleging defendant, a non-profit consumer safety group, negligently misrepresented and fraudulently concealed that defective in-wall heaters were safe, grant of defendant's motion to dismiss and motion for judgment on the pleadings is affirmed where the district court properly dismissed negligent misrepresentation and fraudulent concealment claims as barred by the statutes of limitations, and did not abuse its discretion in dismissing the claims without leave to amend.

[04/15] DeAndrade v. Trans Union LLC
In an action arising from a dispute over a loan payment and the credit bureaus' alleged failure to reinvestigate properly and delete a disputed debt from plaintiff's credit report, summary judgment for defendant is affirmed where the material facts were undisputed and established no FCRA violation.

[04/15] Springman v. AIG Mktg.
In a class action suit against insurers alleging that defendants violated fraud and consumer protection law by underpaying accident insurance claims submitted by the plaintiff and the members of his class, denial of the plaintiff's motion to remand to state court is affirmed where the substitution of a defendant did not relate back to the original suit since the plaintiff's delay in moving for substitution prevented the new defendant from knowing that, but for mistake, the action should originally have been brought against it. Thus, the filing date of the lawsuit for removal purposes under the Class Action Fairness Act was the date of substitution, which placed the action within the Act's effective date and allowed for removal to federal court.

[04/14] Murray v. New Cingular Wireless Servs., Inc.
In a consolidation of three suits under the Fair Credit Reporting Act, the judgments of the district courts are affirmed where: 1) the offer of a free phone in connection with a service plan is an offer of credit; 2) a defendant did not wilfully violate FCRA because it was not reckless; 3) the omission of a minimum line of credit is compatible with a "firm offer of credit"; and 4) while the district court applied the wrong standard in light of Safeco Ins. Co. v. Burr, 127 S. Ct. 2201 (2007), its mistakes do not require a remand.

[04/09] Grovatt v. St. Jude Med., Inc.
In products liability litigation concerning the Silzone prosthetic heart valve, certification of a class of plaintiffs pursuant to Fed. Civ. Pro. Rule 23(b)(3) is reversed and remanded where: 1) claims of fraud and misrepresentation were unsuitable for a class action as the record evinced material variations in representations and manner of reliance which required individual inquiries; 2) the record showed that individual issues would predominate the remedial phase of the proposed class action; and 3) the district court did not limit its class certification to specific issues that may be amenable to class-wide resolution.

[04/08] Colacicco v. Apotex Inc.
In state-law tort actions brought against drug manufacturers of antidepressants known as selective serotonin reuptake inhibitors ("SRRIs") based on a theory that the drugs' labeling failed to warn the risk of increased suicidal tendencies, the circuit court finds that the underlying failure-to-warn claims under state law conflicted with, and were thus preempted by FDA's regulatory actions pursuant to its authority under the Federal Food, Drug, and Cosmetic Act.

[04/07] N. Am. Med. Corp. v. Axiom Worldwide, Inc.
In a case where the district court issued a preliminary injunction enjoining the defendants from engaging in certain alleged acts of false advertising and trademark infringement, order is vacated and remanded in part where: 1) district court erred in presuming that plaintiffs would suffer irreparable harm in the absence of a preliminary injunction merely because defendants' advertisements were literally false; and 2) it is unclear whether the district court was correct in holding that the nature of trademark infringement gives rise to a presumption of irreparable injury in light of eBay, Inc. v. MercExchange, L.L.C., 126 S. Ct. 1837 (2006).

[03/26] Landau v. CNA Fin. Corp.
In a nation-wide class action against defendants for alleged deceptive business practices and resulting damages in violation of the Illinois Consumer Fraud and Deceptive Business Practices Act (Act), grant of defendant's motion to dismiss on grounds that plaintiff could not sue under the Act is affirmed where: 1) defendant's underlying activities did not create additional circumstances that relate to the alleged misrepresentation; and 2) the majority of circumstances relating to the alleged violation of the Act occurred outside of Illinois.

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Drugs & Biotech

[07/22] Chein v. Drug Enforcement Admin.
DEA's revocation of petitioner-physician's practitioner's registration and denial of his application for a registration to export Schedule III and Schedule IV substances are affirmed where petitioner failed to demonstrate that his revocation represents a "flagrant departure from DEA policy and practice" in analogous cases.

[07/21] Bandana Trading Co., Inc. v. Quality Infusion Care, Inc.
In an action for breach of contract, judgment for plaintiff is affirmed over claims of error that: 1) the trial court erred when it refused to remove a juror for misconduct after the juror applauded by clapping her hands during defendant's rebuttal argument; 2) defendant was entitled to a new trial because the same juror committed misconduct during deliberations when she injected technical knowledge into the deliberations, intimidating other jurors and rushing them into a verdict.

[07/21] Eisai Co. Ltd. v. Dr. Reddy's Lab., Ltd.
In a patent case involving a class of drugs known as proton pump inhibitors, summary judgment for plaintiff ruling that its patent was enforceable is affirmed where defendants failed to present sufficient evidence to establish that: 1) the patent in dispute was invalid for obviousness; or 2) plaintiffs had engaged in inequitable conduct by attempting to deceive the Patent Office.

[07/18] Med. Ctr. Pharmacy v. Mukasey
In a suit for declaratory relief seeking permission to continue compounding drugs without obtaining FDA approval, a ruling finding that compounded drugs are implicitly exempt from the new drug and new animal drug definitions, and that drugs compounded from bulk ingredients for non-food animals do not violate the Federal Food Drug and Cosmetic Act's (FDCA) unsafe, adulteration, or misbranding provisions is vacated and the case remanded where the FDCA, as amended, permits compounded drugs to avoid the new drug approval process, but the exception applies only in certain statutorily-delimited circumstances.

[05/27] Weaver v. CCA Indus., Inc.
A ruling, which found that a policy issued by third-party insurer to its insured provided no coverage to third-party plaintiff and that the insurer had no obligation to defend and indemnify it, is vacated and remanded where: 1) third-party plaintiff qualified as an additional insured under the policy with respect to plaintiff's claim under the Louisiana Product Liability Act; 2) an exclusion for alternating and relabeling the product does not apply since it had no nexus to the harm alleged; and 3) another exclusion was inapplicable since the formula for a product is not an "ingredient" for purposes of making that product.

[05/14] Aventis Pharma S.A. v. Amphastar Pharm., Inc.
In a patent case involving plaintiffs-Aventis' drug Lovenox, a drug effective in preventing blood clotting while minimizing the possibility of hemorrhaging, a ruling holding plaintiff's patents unenforceable due to inequitable conduct is affirmed where: 1) the district court did not err in determining that half-life comparisons were intended to show compositional differences to address the anticipation rejection; 2) the court did not abuse its discretion in excluding evidence that comparison of half-lives at different doses to demonstrate a difference in property was routine practice; and 3) there was sufficient evidence to showing an intent to deceive on the part of plaintiff's expert.

[05/01] Amerisource Corp. v. U.S.
A ruling that there was no compensable taking in the seizure of an innocent third party's property, which was never introduced as evidence in a criminal proceeding and was rendered worthless over the course of the proceedings, is affirmed where: 1) the government seized the goods pursuant to the police power and not for "public use" within the meaning of the Fifth Amendment; and 2) the innocence of the third party did not make the seizure of property under the police power a compensable taking.

[04/29] In re: Subpoena in Collins
In an action against GlaxoSmithKline alleging the drug Paxil radically changed an individual's behavior and led him to take his own life, an order quashing a subpoena commanding a a Smithsonian employee to testify at a deposition is reversed and remanded where the federal government's claim to sovereign immunity does not apply to an employee's personal observations and opinions regarding a co-worker's behavior which are unrelated to the employee's official duties.

[04/24] Ackermann v. Wyeth Pharm.
In case brought plaintiff-wife alleging that defendant failed to adequately warn about drug-induced risk of suicide from its drug Effexor, leading to her husband's suicide, summary judgment against plaintiff is affirmed where plaintiff failed to demonstrate causation under the learned-intermediary doctrine.

[04/18] Pharm. Care Mgmt. Ass'n v. Dist. of Columbia
In a suit to block a DC law that would require pharmacy benefit managers to act as fiduciaries, to disclose the content of their contracts with pharmacies and manufacturers, and to pass on any payments or discounts they receive from pharmacies or manufacturers, summary judgment for the District is vacated and remanded where the case involved unmixed questions of law and: 1) application of collateral estoppel would freeze the development of the law in an area of substantial public interest; and 2) the legal context changed subsequent to after the first decision.

[04/14] BASF AG v. Great Am. Assurance Co.
In a suit seeking to recover damages from defendants-insurers for their failure to defend and indemnify plaintiff during a suit over the marketing of a synthetic thyroid drug, summary judgment for plaintiff is reversed and remanded where the terms of the insurance policies, as a matter of law, did not obligate the insurers to defend or indemnify plaintiff.

[04/11] Advocare Int'l LP v. Horizon Labs., Inc.
In a suit brought by a company that formulated and sold products for improving nutrition and weight loss, arising from underlying suits claiming personal injuries caused to users of products containing ephedra, a judgment primarily for plaintiff and third-party defendant-insurer is affirmed for the most part, but reversed in part as to one of two awards of punitive damages to plaintiff for a defendant's fraud and breaches of fiduciary duty. An award of prejudgment interest is vacated and remanded.

[04/08] Colacicco v. Apotex Inc.
In state-law tort actions brought against drug manufacturers of antidepressants known as selective serotonin reuptake inhibitors ("SRRIs") based on a theory that the drugs' labeling failed to warn the risk of increased suicidal tendencies, the circuit court finds that the underlying failure-to-warn claims under state law conflicted with, and were thus preempted by FDA's regulatory actions pursuant to its authority under the Federal Food, Drug, and Cosmetic Act.

[04/03] Fernandez-Vargas v. Pfizer Pharm., Inc.
In an action arising from the death of a person who was shot while working at Pfizer's facility in Puerto Rico, judgment for defendant is affirmed over claims that the district court: 1) improperly removed plaintiff's complaint to federal court and lacked subject matter jurisdiction over the action from the outset; 2) improperly dismissed plaintiff's cross-claim against Pfizer based on the erroneous view that WACA section 21 provided employer immunity from suit; 3) failed to appoint decedent's son as guardian ad litem, rendering the judgment null and void; and 4) erroneously enjoined plaintiff from suing Pfizer in the commonwealth court.

[04/01] Caraco Pharm. Labs., Ltd. v. Forest Labs., Inc.
In an action brought under the Declaratory Judgment Act and the provision of the Hatch-Waxman Act establishing civil actions for patent certainty, dismissal of plaintiff's declaratory judgment action for noninfringement against defendants is reversed and remanded where: 1) in the context of the Hatch-Waxman framework, defendant's covenant not to sue plaintiff did not eliminate the controversy between the parties, and thus, the declaratory judgment action presents a continuing Article III controversy.

[03/31] Ortho-McNeil Pharm., Inc. v. Mylan Labs., Inc.
A judgment permanently enjoining defendant from infringing a patent claiming the anticonvulsive drug topiramate and resetting the approval date for defendant's Abbreviated New Drug Application (ANDA) is affirmed where the district court: 1) correctly ruled on claim construction, inequitable conduct, obviousness, and enablement; and 2) it did not err in resetting the effective date of the ANDA under 35 U.S.C. section 271(e)(4)(A).

[03/27] Ruiz-Rivera v. Pfizer Pharm., LLC.
In a case against employer "regarded as" a disability claim for a violation of ADA, grant of summary judgment, on reconsideration, for employer is affirmed where: 1) plaintiff failed to meet the pleading requirements for employer's alleged violation of a statutory section as