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Admiralty

[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.

[10/02] Balen v. Holland Am. Line Inc.
In an action for unpaid wages under the Seamen's Wage Act, the district court's order granting defendant's motion to compel arbitration is affirmed where claims under the Act are subject to arbitration pursuant to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards and plaintiff's claim was subject to a valid arbitration agreement.

[10/02] Loya v. Starwood Hotels & Resorts Worldwide, Inc.
In a tort action arising out of a scuba diving accident, the dismissal of the action on forum non conveniens grounds is affirmed where a claim implicating the Death on the High Seas Act is within the admiralty jurisdiction of the federal courts, and is thus subject to discretionary dismissal on forum non conveniens grounds.

[10/01] Pedroza v. Benefits Rev. Bd.
In a petition for review of the Benefits Review Board's determination that petitioner was not entitled to disability benefits under the Longshore and Harbor Worker's Compensation Act, the petition is denied where psychological injuries that result from legitimate personnel actions are not compensable under the Act.

[09/25] Delaware River & Bay Auth. v. Kopacz
In an admiralty case involving shipowner's duty to pay maintenance to a seaman, district court's award of declaratory judgment in favor of the seaman-defendant is affirmed where: 1) commuter seamen enjoy the same right to maintenance as their deep water counterparts; 2) the long-term disability payments do not offset the amount of maintenance owed which is a duty that is independent of the shipowner's contractual obligations; 3) receipt of social security benefits did not relieve the shipowner of its maintenance obligation; 4) district court did not abuse its discretion in awarding prejudgment interest award to compensate defendant for losses stemming from plaintiff's tardy discharge of its duty; and 5) district court properly exercised its discretion in denying defendant's claim for consequential damages.

[09/24] New Hampshire Ins. Co. v. Home Savings & Loan Co. of Youngstown, Ohio
In a dispute involving insurance coverage brought against policyholder-yacht dealer and marina operator, district court's order and judgment granting defendant's motion to dismiss pursuant to its discretion to decline to exercise jurisdiction over claims brought under the Declaratory Judgment Act is reversed as the court incorrectly assumed that it had jurisdiction, and thus, its analysis of the abstention issue is vacated. However, the district court's judgment dismissing plaintiff's claims is affirmed as, looking at the interests insured by the policy sub judice, the weight of authority indicated that the insurance policy at issue was not a maritime contract because its primary objective does not relate to maritime commerce.

[09/15] Vasquez v. GMD Shipyard Corp.
In a personal injury action based on a fall aboard a ship, judgment for defendant is affirmed primarily as the district court had admiralty jurisdiction because the alleged tort occurred on navigable waters and the activity giving rise to the incident had a substantial relationship to traditional maritime activity, such that the incident had a potentially disruptive influence on maritime commerce.

[09/10] MacDonald v. Kahikolu, Ltd.
In a personal injury action based on injuries plaintiff suffered while diving from defendant's ship, judgment for defendant is affirmed where the rule from The Pennsylvania, 86 U.S. (1 Wall.) 125 (1873), which puts on the ship owner the burden of proving that its violation of a statute or regulation did not cause the injury, did not apply because there must be a threshold causal connection between the violation and the injury before the Rule will apply.

[09/02] Doyle v. Graske
In a personal injury action arising from a boat accident, district court's judgment is affirmed in part and reversed in part where: 1) substantial evidence supported district court's conclusion that defendant breached a duty of reasonable care to plaintiff by bringing the boat to planing speed when plaintiff was seated on the bow cushion; 2) district court did not clearly err in finding that defendant's negligent operation of the boat was a proximate and substantial cause of plaintiff's injuries; and 3) district court erred in awarding plaintiff's spouse damages for loss of consortium as there is no well-settled admiralty rule authorizing such damages for spouses of non-seafarers negligently injured beyond the territorial waters of the United States.

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Class Actions

[03/10] Hesse v. Sprint Corp.
In a class action alleging that defendant Sprint Corp. unlawfully collected a Washington state tax from Washington customers, summary judgment for defendant is vacated and remanded where a prior class action settlement challenged Sprint's billing of customers for certain federal regulatory fees, and the Washington plaintiffs' interests were not adequately represented in that litigation.

[03/03] Byers v. Intuit, Inc.
In plaintiff's putative class action on behalf of U.S. taxpayers against the IRS and a consortium of companies in the electronic tax preparation and filing industry (FFA) claiming violations of the Independent Offices Appropriations Act (IOAA) in the charging of fees in exchange for providing e-filing services, as well as a violation of section 1 of the Sherman Antitrust Act, dismissal of both claims is affirmed where: 1) the district court was correct in holding that the IOAA does not apply to the FFA members, as it only applies to a government agency and none of the exceptions in Thomas v. Network Solutions, Inc., 176 F.3d 500 (D.C. Cir. 1999) apply; and 2) the district court did not err in dismissing the Sherman Act claim as the FFA members are entitled to conduct-based implied antitrust immunity with respect to the anti-competitive action taken pursuant to the Ceiling Provisions of the 2005 Agreement with the IRS.

[03/02] Orosco v. Napolitano
In an action seeking a writ of habeas corpus to compel defendants to issue him a law enforcement certification showing his cooperation with law enforcement under 28 U.S.C. section 2241, dismissal of the complaint is affirmed where the language of section 1184(p) made it abundantly clear that the decision to issue a law enforcement certification is a discretionary one.

[03/02] Rutti v. Vermillion
In a class action on behalf of all technicians employed by defendant to install alarms in customers' cars, in which plaintiff sought compensation for the time technicians spent commuting to worksites in defendant's vehicles and for time spent on preliminary and postliminary activities performed at their homes, summary judgment for defendant is affirmed in part where: 1) pursuant to the Employment Commuter Flexibility Act, use of an employer's vehicle to commute was not compensable even if it was a condition of employment; and 2) the conditions defendant placed on plaintiff's use of its vehicle did not make his commute compensable. However, the judgment is vacated in part where, on summary judgment, the district court could not determine that plaintiff's postliminary activities were not integral to plaintiff's principal activities.

[03/02] Reed Elsevier, Inc. v. Muchnick
In a class action alleging copyright infringement, a circuit court's ruling vacating a settlement class certification order for lack of subject matter jurisdiction is reversed where 17 U.S.C. section 411(a)'s registration requirement is a precondition to filing a copyright infringement claim, but a copyright holder's failure to comply with that requirement does not restrict a federal court's subject matter jurisdiction over infringement claims involving unregistered works.

[03/02] Pfizer v. Sup. Ct.
In plaintiffs' action against Pfizer, the manufacturer of Listerine mouthwash, pursuant to the Unfair Competition Law (UCL) and False Advertising Law claiming that Pfizer marketed the mouthwash in a misleading manner by representing that the use of it can replace the use of dental floss in reducing plaque and gingivitis, defendant's petition for writ of mandate seeking to overturn an order certifying the class action is granted as the ruling certifying a class consisting of all persons who purchased Listerine in California during a six-month period is overbroad, and In re Tobacco II Cases, 46 Cal.4th 298 (2009), does not require a different disposition in this case.

[02/24] McAdams v. Monier, Inc.
In plaintiffs' action under the Consumer Legal Remedies Act and the Unfair Competition Law, claiming that defendant failed to disclose that the color composition of its roof tiles would erode away well before the end of the tiles' represented 50-year lifetime, trial court's order denying certification of the proposed CLRA and UCL classes are reversed where: 1) as to the elements of liability and reliance, plaintiffs' CLR cause of action, based on the alleged failure to disclose is suitable for class treatment; and 2) trial court used improper criteria and made erroneous legal assumptions in denying certification of the proposed UCL class, and on remand, court is instructed to determine if the representative plaintiff meets the UCL standing requirements set forth in Tobacco II.

[02/24] Hertz Corp. v. Friend
In a wage and hour action, the court of appeals' affirmance of the district court's order remanding the case to state court is vacated and remanded where the Court returned to the "nerve center" approach in determining a corporation's citizenship for diversity jurisdiction purposes, under which "principal place of business" is best read as referring to the place where a corporation's officers direct, control, and coordinate the corporation's activities.

[02/23] Gintis v. Bouchard Transp. Co., Inc.
In plaintiffs-property owners' action against the owners and operators of a fuel barge that discharged a substantial amount of oil into a Massachusetts bay, district court's denial of class certification is vacated and remanded because the district court did not subject the parties' contentions to the plenary analysis required by precedent.

[02/22] Southwestern Bell Tel. Co. v. Mktg. on Hold Inc.
In an interlocutory appeal of a trial court's class certification order, where the class representative obtained assignments of claims that the defendant telephone company improperly charged some of its business customers certain municipal fees, the judgment of the court of appeals is reversed and the class decertified where: 1) the assignments are valid and provide standing; 2) the class representative's claims are typical of the other class members' claims; 3) common questions of law or fact predominate; but 4) the putative class representative failed to establish that it adequately represents the claim.

[02/18] Foster v. Booker
In a class action lawsuit under 42 U.S.C. section 1983 brought by inmates against the Michigan Parole Board and the Director of the Michigan of Corrections claiming that changes to Michigan's parole laws in 1992 and 1999, as implemented and applied retroactively to their parole review, violate the Ex Post Facto and Due Process Clauses, judgment of the district court is reversed for the most part and affirmed in part where: 1) summary judgment is reversed and permanent injunction is vacated on the ex post facto claim as plaintiffs have not shown that they face a significant risk of increased punishment as a result of the challenged statutory changes to Michigan's parole process rather than as a result of the new Board's legitimate exercise of discretion in a way that results in fewer paroles; and 2) plaintiffs' due process claim was properly dismissed as prisoners have no constitutionally protected liberty interest in parole.

[02/16] McDaniel v. Schenectady
In plaintiffs' appeal from an attorney's fee award in a class action challenging defendant-county's strip search policy, the award is affirmed where the district court did not abuse its discretion by declining to award attorneys' fees using a percentage-of-fund approach, in the extent of its reliance on Arbor Hill Concerned Citizens Neighborhood Ass'n. v. County of Albany, 493 F.3d 110 (2d Cir. 2007), or in its application of the reasonableness factors set forth in Goldberger v. Integrated Resources, Inc., 209 F.3d 43 (2d Cir. 2000).

[02/12] Archdiocese of Milwaukee Supporting Fund, Inc. v. Halliburton Co.
In a securities fraud class action, the district court's denial of class certification is affirmed where, following review of the alleged misrepresentations and corrective disclosures at issue, the circuit court concluded plaintiff failed to meet the court's requirements for proving loss causation at the class certification stage.

[02/12] Thorogood v. Sears Roebuck & Co.
In plaintiff's class action lawsuit claiming that defendant-company sold dryers that were misrepresented as containing stainless steel drums in violation of the Tennessee Consumer Protection Act, dismissal of the suit for lack of subject matter jurisdiction, after a remand following decertification, is affirmed as the district judge was within his discretion in deciding that no attorney's fees should be awarded.

[02/08] DG v. DeVaughn
In a class action against the Oklahoma Department of Human Services claiming that the department's agency-wide foster care policies and practices exposed all class members to an impermissible risk of harm, the district court's order certifying a class is affirmed where: 1) plaintiffs presented more than conclusory statements that defendants' agency-wide monitoring policies and practices, or lack thereof, created a risk of harm shared by the entire class; 2) due to the common risk of harm and the common underlying legal theory for asserting that risk, the district court acted within its discretion to find that typicality was satisfied; and 3) the injunction sought by plaintiffs applied to the proposed class as a whole without requiring differentiation between class members.

[02/08] Yokoyama v. Midland Nat'l Life Ins. Co.
In an action alleging deceptive representations in defendant's brochures, which promoted certain annuities as appropriate for seniors, a denial of class certification is reversed where the Hawaii Deceptive Practices Act did not require individual showings of reliance on the alleged misrepresentations.

[02/08] Jaimez v. Daiohs USA, Inc.
In plaintiff's suit against defendant employer seeking recovery of unpaid wages, denial of plaintiff's motion for class certification and subsequent motion for leave to amend complaint to substitute new class representative is affirmed in part and reversed in part where: 1) except as to a finding that plaintiff is not an adequate class representative, trial court did not apply the applicable criteria as it is evident that common legal and factual issues predominate over any individual issues with respect to the meal and rest break claims; and 2) denial of motion for leave to file the First Amended Complaint is reversed with directions to file it nunc pro tunc.

[02/08] Ward v. Dixie Nat'l Life Ins. Co.
In a class action lawsuit against multiple insurance companies alleging that defendants violated a contractual promise under insurance policies to pay policyholders the "actual charges" of cancer treatments, judgment in favor of the plaintiffs is affirmed where: 1) under the three-step retroactivity analysis, the presumption against retroactivity operates to bar the application of the South Carolina statute to the claims in this case; and 2) defendants' remaining arguments are meritless.

[02/05] Omstead v. Dell, Inc.
In a proposed class action alleging that Dell designed, manufactured, and sold defective notebook computers, dismissal of the action for failure to prosecute is reversed where: 1) plaintiffs did not cause any unreasonable delay in the progression of their case; and 2) a choice-of-law provision is unenforceable, and a class action waiver pursuant to which Dell obtained an order compelling arbitration was unconscionable under California law because it satisfied the Discover Bank test, and California had a materially greater interest than Texas in applying its own law.

[02/04] Olson v. Brown
In a putative class action lawsuit filed by an inmate against a county sheriff alleging several First Amendment violations and violations of Indianan law in a county jail, dismissal of the suit as moot on the ground that plaintiff was transferred out of the county jail before class certification is reversed and remanded as this case fits within the exception to the mootness doctrine carved out for inherently transitory cases.

[02/03] Demings v. Nationwide Life Ins. Co.
In plaintiff's class-action lawsuit, individually and in his official capacity as a sheriff, on behalf of all public employers who sponsor deferred compensation plans, claiming breach of fiduciary duty and unjust enrichment by defendant-insurance company, district court's dismissal of the action is affirmed as the proposed class action does not fit within the narrow state-actions exception to the Securities Litigation Uniform Standards Act of 1998 because it is not brought on behalf of named plaintiffs who have authorized participation in the action.

[02/01] Jackson v. Danberg
In an appeal brought by a class of inmates challenging the constitutionality of Delaware's lethal injection method for capital punishment, district court's grant of summary judgment is affirmed and a stay dissolved as: 1) under Baze v. Rees, 553 U.S. 35 (2008), an execution protocol that does not present a substantial risk of serious harm passes constitutional muster; and 2) on the record, Delaware's protocol presents no such risk.

[01/28] Stewart v. Rolling Stone LLC
In a class action suit brought by "indie rock" musicians whose band names were included in an editorial in a Rolling Stone issue, claiming unauthorized use of their names for a commercial purpose, trial court's denial of defendants' anti-SLAPP motion is reversed and remanded where: 1) the trial court erred in concluding that a triable issue exists as to whether the editorial feature that is the subject of this litigation constitutes commercial speech; and 2) plaintiffs have failed to present evidence sufficient to establish that they have a probability of prevailing on the merits.

[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.

[11/20] Exxon Mobil Corp. v. Gill
In plaintiffs'-service station dealers statewide-class action suit against Exxon claiming that the cost of individual rebates it had offered to the dealers based on sales volume and hours of operation was added back into the wholesale price Exxon charged the dealers for gasoline, trial court's certification of all Texas dealers is vacated and remanded as the lower courts did not correctly construe and apply the decision in Shell Oil Co. v. HRN,Inc.

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Consumer Protection

[03/09] Martinez v. Wells Fargo Home Mortgage, Inc.
In an action under Section 8(b) of the Real Estate Settlement Procedures Act (RESPA), and California's Unfair Competition Law (UCL), claiming that a mortgage lender charged plaintiffs an illegal underwriting fee, dismissal of the complaint is affirmed where: 1) the clear and unambiguous language of RESPA Section 8(b) did not reach the practice of "overcharging"; and 2) the UCL claims alleging "unfair" and "fraudulent" conduct were preempted by the National Bank Act, and the allegations of "illegal" conduct failed to state a claim.

[03/08] Milavetz, Gallop & Milavetz, P.A. v. US
In an action by a law firm seeking declaratory relief, arguing that plaintiff was not bound by the Bankruptcy Abuse Prevention and Consumer Protection Act's (BAPCPA) debt relief agency provisions and therefore could freely advise clients to incur additional debt and need not make the requisite disclosures in its advertisements, the Eighth Circuit's order rejecting the district court's conclusion that attorneys are not "debt relief agencies" under BAPCPA, upholding application of BAPCPA's disclosure requirements to attorneys, and finding BAPCPA section 526(a)(4) unconstitutional, is affirmed in part where: 1) attorneys who provided bankruptcy assistance to assisted persons were debt relief agencies under the BAPCPA; and 2) BAPCPA section 528's requirements were reasonably related to the government's interest in preventing consumer deception. However, the court of appeals' order is reversed in part where BAPCPA section 526(a)(4) prohibited a debt relief agency only from advising a debtor to incur more debt because the debtor was filing for bankruptcy, rather than for a valid purpose.

[02/15] In re: Barner
In debtor's appeal from the bankruptcy court's ruling finding that an automatic stay did not apply to a foreclosure sale of her home, the order is affirmed where: 1) 11 U.S.C. sections 362(d)(4) and (b)(20) did not prohibit enforcement of a 2004 order lifting the automatic stay as to debtor's residence; and 2) the Bankruptcy Abuse Prevention and Consumer Protection Act did not modify or affect orders issued in cases filed before its effective date.

[02/12] Talley v. US Dep't of Agric.
In plaintiff's suit against the U.S. Department of Agriculture under the Fair Credit Reporting Act (FCRA) claiming that the Department violated the Act's requirements by reporting that plaintiff is behind on a loan that has been paid off on four separate occasions, judgment in favor of plaintiff is affirmed where: 1) the Tucker Act waives sovereign immunity for compensatory-damages claims under the Fair Credit Reporting Act; 2) the district court had subject matter jurisdiction under 28 U.S.C. section 1331 and 15 U.S.C. section 1681p; 3) attorney's fees as part of costs do not count toward the threshold set forth in the Tucker Act, any more than the costs themselves do; and 4) appellate jurisdiction exists as plaintiff appealed to section 1331 and section 1681p and did not invoke the Tucker Act as a grant of subject matter jurisdiction.

[02/09] Chiang v. Verizon New England, Inc.
In plaintiff's suit against Verizon seeking more than $1 million for claimed violations of his rights under the Fair Credit Reporting Act (FCRA) and under the Fair Debt Collection Practices Act (FDCPA) based on Verizon's handling of the parties' prior disputes resolved in state court, summary judgment in favor of defendant is affirmed where: 1) under section 1681s-2(b) of the FCRA, there is a private cause of action, the investigation must be reasonable, this test is objective, and plaintiff bears the burden of proof; 2) a section 1681s-2(b) claim requires plaintiff to show actual inaccuracies that a furnisher's objectively reasonable investigation would have been able to discover; 3) on the FCRA claims, plaintiff failed to raise a genuine issue of material fact on two issues on which he bore the burden; and 4) on plaintiff's FDCPA claim, there is no material dispute of fact that Verizon is not a debt collector.

[02/05] Weintraub v. Quicken Loans, Inc.
In plaintiffs' action under the Truth in Lending Act against defendant for refusing to refund a $500 deposit plaintiffs' demanded after they attempted to exercise their right to rescind prior to closing on a loan to refinance their house, summary judgment for defendant is affirmed as a consumer cannot exercise the right to rescind created by 15 U.S.C. section 1635(a) until after consummation of a consumer credit transaction.

[02/04] Lukather v. Gen Motors, LLC
In plaintiff's suit against General Motors pursuant to the Song-Beverly Consumer Warranty Act, judgment of the trial court in favor of plaintiff is affirmed where: 1) there was sufficient evidence to support the trial court's willfulness finding; 2) defendant provided neither legal authority nor any equitable ground to support its mitigation of damages defense; and 3) defendant failed to show that the trial court abused its discretion in awarding prejudgment interest, attorney's fees and costs.

[01/29] Brown v. Mortensen
In plaintiffs' suit against their former dentist and others for allegedly disclosing their and their minor children's confidential medical information in violation of the Confidentiality of Medical Information Act, trial court's rulings sustaining defendant's demurrer on certain causes of action and dismissing certain claims is affirmed as, although the causes of action at issue are not impermissibly vague or confusing, the federal Fair Credit Reporting Act preempts plaintiffs' claims against defendant.

[01/28] In Re: Sprint Nextel Corp.
In a class action suit against Sprint under the Kansas Unfair Trade and Consumer Protection Act alleging that defendant conspired with other cell phone providers to impose artificially high prices for text-message service, defendant's petition for leave to appeal from a remand order is granted and the order remanding the case to state court is vacated and remanded to give the plaintiffs another opportunity to prove that the proposed class satisfied the requirements of the home-state exception.

[01/28] Midwest Title Loans, Inc. v. Mills
In a title loan company's suit under 42 U.S.C. section 1983 to enjoin, as a violation of the Commerce Clause, the application to plaintiff of Indiana's version of the Uniform Consumer Credit Code, district court's entry of permanent injunction is affirmed as the fact that the contract is made and executed in Illinois is enough to show that the territorial-application provision violates the commerce clause.

[01/27] Arce v. Kaiser Found. Health Plan, Inc.
In plaintiff's class action suit under the Unfair Competition Law (UCL) claiming breach of a health plan contract and violation of the Mental Health Parity Act by categorically denying coverage for behavioral therapy and speech therapy to plan members with autism spectrum disorders, trial court's order sustaining defendant's demurrer is reversed and remanded as: 1) there is reasonable possibility that plaintiff can establish the requisite community of interest for a class action suit under the UCL; and 2) resolution of the UCL claim would not require the court to make individualized determinations of medical necessity or to decide complex issues of economic policy or other matters over which an administrative agency has exclusive jurisdiction.

[01/27] State Farm Ins. Co. v. JT's Frames, Inc.
In an action wherein plaintiff-insurer sought a declaration that defendant's underlying claims involving unsolicited faxes were not covered by policies as "advertising injury" or "property damage," summary judgment in favor of defendant is affirmed where the claims asserted in the Illinois actions were not covered by the State Farm policies. Also, defendant's appeal from an order denying its motion to quash service of the complaint is rejected as such as order not is not appealable where, as here, the party contesting jurisdiction enters a general appearance and litigates the merits.

[01/21] Steroid Hormone Product Cases
In a class action lawsuit against General Nutrition Companies (GNC) involving over-the-counter sales of products containing anabolic steroids, brought under the Unfair Competition Law (UCL) and the Consumer Legal Remedies Act (CLRA), trial court's denial of motion to certify is reversed where: 1) plaintiff's UCL claim presents two predominant issues, both of which are common to the class; and 2) the damage that a plaintiff in a CLRA action must show is any damage which is not synonymous with actual damages and may encompass harms other than pecuniary damages, and here, the damage plaintiff alleged in the case is that, in reliance on GNC's deceptive conduct, he bought an illegal product he would not have bought had he known it was illegal.

[01/21] Superior Dispatch Inc. v. Ins. Corp. of New York
In plaintiff's breach of contract action against its insurer, trial court's grant of summary judgment in favor of the defendant is affirmed where: 1) trial issues of fact as to whether defendant is equitably estopped from asserting the contractual limitations provision preclude summary judgment based on the provision; 2) defendant is entitled to summary judgment based on a material misrepresentation in the insurance application; and 3) plaintiff has shown no prejudicial error in the sustaining of the demurrer to the fraud count.

[01/15] H&R Block E. Enter. Inc. v. Raskin
In plaintiff-H&R Block's action seeking declaratory and injunctive relief with respect to enforcement of Maryland's Credit Services Businesses Act (CSBA), involving whether the Act applies to one of plaintiff's products, a "refund anticipation loan," grant of partial summary judgment to each party in ruling that certain of the CSBA's provisions are preempted is vacated and remanded as the district court erred in not analyzing, as the first step in the preemption analysis, whether the CSBA in fact applies to plaintiff.

[01/13] Donohue v. Quick Collect, Inc.
In an action claiming that defendant collection agency violated the Fair Debt Collection Practices Act (FDCPA) by charging a usurious rate of interest, summary judgment for defendant is affirmed where: 1) the creditor's assessment of finance charges was not a forbearance, and therefore there was no Washington usury law violation; and 2) the complaint correctly calculated the total debt plaintiff owed, accurately stated the principal owed, and accurately listed the total non-principal amount owed inclusive of interest and finance charges.

[01/13] Ellis v. Solomon & Solomon, P.C.
In a Fair Debt Collection Practices Act (FDCPA) action claiming that defendant law firm violated the FDCPA by personally serving plaintiff with a summons and complaint during the FDCPA thirty-day validation period, without explaining that commencement of the lawsuit did not affect the rights set forth in the validation notice, summary judgment for plaintiff is affirmed where service of process during the validation period must, at a minimum, be preceded or accompanied by notice to the consumer clarifying that the lawsuit does not in any way alter the information contained in the validation notice.

[01/11] In Re: Jones
In defendants' Chapter 7 proceedings, district court's judgment that plaintiff-creditor had the right to repossess their vehicle is affirmed where: 1) district court did not err in holding that the Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA) eliminated the ride-through option; 2) plaintiff had authority to repossess the vehicle pursuant to the contract's ipso facto clause without giving the defendants prior notice of a right to cure the default under state law; and 3) plaintiff was not required to give defendants notice of default and right to cure before repossessing the vehicle as both parties agree that the event that triggered default, the filing of a bankruptcy petition, cannot be cured.

[01/08] Ferrell v. Express Check Advance of SC, LLC
In a class action lawsuit against business entities that make payday loans, decision of the district court to remand the case to state court for lack of subject matter jurisdiction is affirmed as, for the purposes of determining subject matter jurisdiction under the Class Action Fairness Act of 2005, a limited liability company is an "unincorporated association" as that term is used in 28 U.S.C. section 1332(d)(10), and therefore is a citizen of the state under whose laws it is organized and the state where it has its principal place of business.

[12/11] Metro Allied Ins. Agency, Inc. v. Lin
In plaintiff's action against an insurance company for negligence and a violation of the Deceptive Trade Practices Act (DTPA) for failure to procure a commercial general liability (CGL) policy, the judgment of the court of appeals in favor of the plaintiff is reversed and remanded is the causation standard for a claimed failure to procure insurance under a negligence theory and under the DTPA requires proof of the availability of some insurance that would have covered the plaintiff's damages.

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Drugs & Biotech

[03/10] Primiano v. Cook
In an action against the manufacturer of an artificial elbow, summary judgment for defendant is reversed where the exclusion of plaintiff's expert's evidence was error as plaintiff's expert, with a sufficient basis in education and experience, testified that the artificial joint "failed to perform in the manner reasonably to be expected in light of its nature and intended function," which was enough to assist a trier of fact.

[03/09] McGuan v. Endovascular Techs., Inc.
In plaintiffs' products liability action against the makers of a device for use by surgeons to treat abdominal aortic aneurysms, for injuries suffered after they were implanted with the device, grant of defendants' motion for a summary judgment is affirmed where: 1) plaintiffs' fraud claims of FDA violations are preempted under Buckman; 2) the trial court did not err in denying plaintiffs' motions to amend their complaints; and 3) the trial court did not abuse its discretion in granting defendants' motion to seal documents.

[03/08] Ajinomoto Co., Inc. v. Int'l Trade Comm'n
In plaintiffs' suit alleging violation of section 337 of the Tariff Act in the importation and sale of certain lysine feed products made by the methods claimed in their patents relating to improved methods of producing L-lysine with genetically engineered E-Coli bacteria, the International Trade Commission's determination of no section 337 violation is affirmed where: 1) the asserted claims of plaintiffs' '698 patent and '160 patents are invalid under 35 U.S.C. section 112 for failure to comply with the best mode requirement; and 2) plaintiffs' argument that the Commissioner erred in finding '698 patent is unenforceable due to inequitable conduct is waived.

[03/04] US v. Xu
Defendant's conviction for trafficking in counterfeit pharmaceutical drugs is vacated as to one count where a rational juror could not have found beyond a reasonable doubt that the Zyprexa mark, allegedly misappropriated by defendant, was registered on the USPTO's principal register.

[03/03] California Pharm. Ass'n v. Maxwell-Jolly
In an action to enjoin the California Department of Health Care Services Director from implementing state legislation reducing payments to certain medical service providers, a preliminary injunction in favor of plaintiffs is affirmed where the state failed to study the impact of a 5% percent rate reduction on the statutory factors of efficiency, economy, quality, and access to care prior to implementing the rate reductions.

[03/03] In re: Baycol Prods. Litig.
In a failure-to-warn case involving the prescription drug Baycol, a cholesterol-reducing medication, summary judgment for defendant is affirmed where: 1) an expert relied upon by plaintiff to prove causation had inadequate factual evidence on which to base his opinion; and 2) plaintiff received what he bargained for and therefore could not demonstrate that defendant was unjustly enriched as a result of plaintiff purchasing Baycol.

[03/02] Teva Pharms. USA, Inc. v. Sebelius
In an action challenging the FDA's policy that would allow not only plaintiff, but all generic manufacturers, to sell their approved losartan potassium products right out of the gate, summary judgment for the FDA is reversed where: 1) there was nothing in the 2003 amendments to the Food, Drug, and Cosmetic Act that changed the structure of the statute such that brand companies should be newly able to delist challenged patents, thereby triggering a forfeiture event that deprived generic companies of the period of marketing exclusivity they otherwise deserved; and 2) thus, the interpretation of the statute that the FDA has adopted in two recent adjudications, and that it regards itself as bound by law to apply to plaintiff's ANDAs for losartan products, fails at Chevron step one.

[02/24] In re Chapman
Decision of the US Patent and Trademark Office, Board of Patent Appeals and Inferences, finding that certain claims of an application directed at technology involving divalent antibody fragments were unpatentable as obvious, is vacated and remanded as the Board's opinion includes erroneous statements that are not harmless because they increase the likelihood that plaintiff was erroneously denied a patent on grounds of obviousness.

[02/23] US v. Brown
Former Chief Legal Counsel for Rite Aid's conviction and sentence for conspiracy to commit accounting fraud, filing false statements with the SEC, and other related crimes, is affirmed in part, reversed in part and remanded where: 1) district court did not abuse its discretion in denying defendant's Rule 33 motion based on newly discovered evidence; 2) defendant's pre-trial suppression motion of the taped conversations was properly denied; 3) district court did not abuse its discretion in its reaction to defendant's plea agreement; and 4) defendant's sentence is vacated and remanded as the district court failed to explain, in the manner now required under Booker, how it considered the section 3553(a) factors in imposing the sentence.

[02/23] Mason v. Smithkine Beecham Corp.
In plaintiffs' lawsuit against the manufacturer of the drug Paxil, an antidepressant, claiming that the company was negligent for not warning that taking the drug increases risk of suicide, district court's grant of defendant's motion for summary judgment is reversed and remanded as, in light of the extensive showing required by Wyeth v. Levine, 555 U.S. _, 129 S.Ct. 1187 (2009), defendant did not meet its burden of demonstrating by clear and convincing evidence that the FDA would have rejected a label change warning about the risk of suicide by young adults before plaintiffs' daughter's life came to an end at 23.

[02/03] In re: Zyprexa Prods. Liab. Litig.
In a drug defect product liability litigation, appellant-law firm's interlocutory appeal from the district court's order finding that all of appellant-law firm's cases that were pending in the district court were subject to certain attorney compensation strictures and that appellant was prohibited from making any disbursements from a fund that it maintained until a fund administrator had certified that the protocols had been adhered to, is dismissed where the injunction did not give or aid in giving substantive relief sought in the lawsuit, and thus there was no jurisdiction under 28 U.S.C. section 1292(a).

[02/02] Smith v. Johnson & Johnson
In plaintiff's suit seeking overtime pay under the Fair Labor Standards Act against a wholly-owned subsidiary of Johnson & Johnson, district court's order granting defendant summary judgment is affirmed as the administrative employee exemption applies to plaintiff, and defendant's cross-appeal is dismissed.

[01/27] Wilkerson v. Sec'y of Health & Human Serv.
Decision of the Court of Federal Claims affirming its Special Master's rejection of a petition for compensation under the National Childhood Vaccine Injury Act is affirmed where: 1) Markovich controls this case and under it the Chief Special Master correctly dismissed the petition as untimely; and 2) the grounds upon which plaintiff seeks to distinguish or avoid Markovich are unpersuasive, as plaintiff's petition was filed more than thirty-six months after the occurrence of the first symptom of the child's injury.

[01/27] Bounds v. Pine Belt Mental Health Care Resources
In a product liability action based on injuries plaintiff allegedly sustained by taking defendant's drug, the district court's order dismissing plaintiff's claims against certain defendants and denying plaintiff's motion to remand is reversed where there was sufficient compliance with the Mississippi Tort Claims Act's pre-suit notice requirements to state a claim against the hospital that administered the drug and its physician-employees.

[01/25] Boehringer Ingelheim Int'l GMBH v. Barr Lab, Inc.
In a patent infringement suit involving claims for certain tetrahydrobenzthiazole compounds for treatment of signs and symptoms of idiopathic Parkinson's disease, district court's judgment of invalidity is reversed and remanded where: 1) plaintiff's terminal disclaimer cannot overcome obviousness-type double patenting based on the '086 patent because the terminal disclaimer was filed after the expiration of the '086 patent; but 2) the district court incorrectly concluded that the safe-harbor provision of 35 U.S.C. section 121 is inapplicable in this case.

[01/25] Therasense, Inc. v. Becton, Dickinson & Co.
In a patent infringement suit involving a patent directed to electrochemical sensors for measuring glucose levels in blood, district court's entry of judgment that certain claims of plaintiff's '890 patent are infringed but are invalid is affirmed where: 1) although the district court's instruction on the law of anticipation was legally erroneous, the jury could not have returned a different verdict as the asserted claims would have been obvious as a matter of law; and 2) defendant's cross-appeal is dismissed, as there is no basis for a cross-appeal as to claims of noninfringement where the district court has entered a judgment of invalidity as to all of the asserted claims.

[01/25] Therasense, Inc. v. Becton, Dickinson & Co.
In a patent infringement suit involving technology in the area of disposable blood glucose test strips, judgment of the district court in favor of the defendants is affirmed where: 1) district court did not err in concluding that claims 1-4 of the '551 patent would have been obvious in light of the prior art; 2) district court did not abuse its discretion in holding the '551 patent unenforceable due to inequitable conduct; 3) on the record, summary judgment of noninfringement of the '164 and '745 patents was proper; and 4) district court's summary judgment on anticipation of the '745 patent was proper, as there was no triable issue of material fact left for the jury to consider on the issue of whether the '225 reference disclosed diffusible mediators.

[01/14] US v. Hatfield
Conviction and imposition of life sentences on defendants for conspiracy to burglarize pharmacies and to distribute controlled substances, the use of which resulted in four deaths plus a serious bodily injury to a fifth user of defendants' drugs, is reversed and remanded as the district court's jury instruction regarding the term "results from" was an error that was not harmless because the evidence regarding the cause of the serious injury of the one victim and the deaths of the others, though strong enough to justify a verdict of guilt beyond a reasonable doubt, was not conclusive.

[01/13] Moberly v. Sec'y of Health & Human Serv.
In plaintiff's petition seeking compensation on behalf of her infant daughter under the National Childhood Vaccine Injury Act, 42 U.S.C. sections 300aa-1 and 300aa-34, claiming that a DPT vaccine caused her daughter's seizures, decision by the court of federal claims upholding the special master's finding that the plaintiffs failed to establish causation is affirmed where: 1) determination by the special master and the Court of Federal Claims that no treating physician ever drew a causal link between the child's seizures and the vaccination was neither arbitrary not capricious; 2) the special master did not err in concluding that the blood-brain barrier theory did not support the plaintiffs' claim of causation; 3) the special master properly held that the plaintiffs could not rely on the NCES (British epidemiological study) to prove causation because they failed to establish that the child would have been regarded as a "case child" within the scope of that study; and 4) the special master applied the correct legal standard and found, based in part on the unconvincing nature of the expert evidence and the lack of credibility of the plaintiffs' expert, that the plaintiffs failed to prove causation by a preponderance of the evidence.

[01/11] Demahy v. Actavis, Inc.
In an action based on injuries plaintiff allegedly sustained by taking defendant's drug, a denial of defendant's motion to dismiss is affirmed where the federal regulatory regime governing pharmaceuticals did not preempt state-law failure-to-warn claims against manufacturers of generic drugs.

[01/07] Wyeth & Elan Pharma Int'l Ltd.v. Kappos
In a case involving plaintiffs' patent applications involving inventions that treat Alzheimer's disease, district court's ruling that plaintiffs were entitled to extended patent term adjustments under 35 U.S.C. section 154(b) due to the Patent and Trademark Office's (PTO) delay in prosecuting their patent applications is affirmed as section 154(b) expressly permits this legal relief as the statutory language is clear, unambiguous, and intolerant of the PTO's suggested interpretation.

[01/06] Allied Orthopedic Apps. Inc. v. Tyco Health Care Group LP
In an antitrust action claiming that plaintiffs overpaid for defendant's pulse oximetry sensors because defendant used improper marketing agreements and made its sensors incompatible with generic products, summary judgment for defendant is affirmed where: 1) there was no evidence that defendant foreclosed competition in a substantial share of the sensor market; and 2) the undisputed evidence showed that defendant's patented sensor design was an improvement over the previous design.

[01/06] In re: Prempro Prods. Liab. Litig.
In a products liability action concerning an allegedly defective hormone replacement drug, the district court's orders denying plaintiffs' motion to remand and dismissing duplicative actions are reversed where the plaintiffs' alleged misjoinder to defeat diversity jurisdiction was not so egregious as to constitute fraudulent misjoinder.

[01/06] Le v. Pham
In plaintiffs' suit against defendant-shareholder involving a dispute over the transfer of shares of a pharmacy, judgment of the trial court is affirmed to the extent it exonerated the third party but is reversed to the extent that it holds that the plaintiffs did not breach any fiduciary duty to defendant as, where the bylaws of a pharmacy corporation provide that one shareholder must give another a right of first refusal on the sale of any stock, it is a breach of fiduciary duty for the selling stockholder to attempt to sell to a third party in violation of the right of first refusal.

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Evidence

[03/10] US v. Fisher
Defendant's firearm possession conviction is affirmed where police had probable cause to detain defendant because they were responding to a 911 call late at night, in a high crime area, with every reason to suspect gunplay, and the only vehicle at the scene looked as if it was about to depart.

[03/10] Valdovinos v. McGrath
In a murder prosecution, a denial of petitioner's habeas petition is reversed in part where a reasonable probability existed that the undisclosed Brady material, which included evidence of prior photo lineups, the drugs and gun found in a government witness's possession, and the favorable treatment the witness received for his testimony, could have altered the result of the trial.

[03/10] US v. Wilder
Defendants' drug conspiracy convictions and sentences are affirmed where: 1) the district court did not err in excluding a document as hearsay because a witness was unable to verify that the proffered document was a public record created by the police department; 2) the government established that defendant knowingly and intentionally joined an agreement to distribute controlled substances; 3) the court was not convinced that the trial record presented an obvious case of a defendant with no predisposition to distribute crack cocaine, such that the district court plainly erred by failing to instruct the jury on entrapment; and 4) the district court explained that it had considered all of the 18 U.S.C. section 3553(a) factors, including the nature and circumstances of the offense and defendant's history and characteristics.

[03/10] US v. Oglesby
In a prosecution for being a felon in possession of a firearm, district court's denial of defendant's motion to suppress is affirmed as, based on the factors on the record and the totality of the circumstances, the officer clearly had articulable facts upon which he could reasonably suspect that defendant was armed or dangerous. Moreover, the pat-down search was extremely limited in scope as the officer's pat-down frisk of defendant was isolated to the right side of his waistband area.

[03/10] Cameron v. N.Y.
In an action for false arrest and malicious prosecution, judgment for defendant-officers is reversed where: 1) prosecutors' opinions as to probable cause and complaining officers' credibility are irrelevant in virtually all cases involving claims of malicious prosecution; and 2) the introduction of such evidence was not harmless because it provided strong external validation for propositions that otherwise would have come in only from the defendants' mouths.

[03/09] US v. York
Defendant's conviction and sentence for arson and carrying a destructive device are affirmed where: 1) there was sufficient evidence that the fire at issue was intentionally set; 2) the district court did not abuse its discretion by denying defendant's motion for a mistrial, because defendant failed to show that he was prejudiced by a jury note requesting to hear again defendant's confession; and 3) evidence that defendant had harmed his girlfriend went to issues other than defendant's character because it explained that she withheld information from the police due to her fear of defendant's threats.

[03/09] US v. Cha
In a prosecution for conspiracy, sex trafficking and coercion, and enticement to travel for the purpose of prostitution, a grant of defendants' motion to suppress evidence is affirmed where the warrantless seizure of defendants' residence, which lasted a minimum of 26.5 hours, was constitutionally unreasonable.

[03/09] Thu v. Holder
In a petition for review of the BIA's order dismissing his appeal from a denial of petitioner's asylum application and related relief, the petition is denied where: 1) the Immigration Judge's credibility finding was supported by specific, cogent reasons for disbelief; and 2) the evidence in the record was not so compelling that no reasonable factfinder could fail to find the requisite fear of persecution.

[03/09] US v. Stearn
Following a grand jury indictment of defendants for federal narcotics and weapons offenses, district court's order granting in part motions to suppress evidence in favor of defendants is, with one irrelevant exception, reversed in its entirety where: 1) the magistrate judge had a substantial basis for determining that probable cause existed to search the apparent residence of a confirmed drug dealer; 2) although closer probable cause questions are presented by the searches of other residences, each search is upheld under the Leon good faith exception as each warrant was sufficiently colored in probable cause to justify the executing officers' good faith reliance; and 3) the suppression of a defendant's saliva sample as "fruit of poisonous tree" is reversed as the defendant failed to prove a primary invasion of his own Fourth Amendment rights.

[03/09] McNair v. State of Delaware
Defendant's convictions for third-degree burglary, theft, offensive touching, and criminal mischief, arising out of breaking into a car in a parking garage, are affirmed where: 1) a photograph of defendant kept in the garage and a witness's testimony about how the witness knew defendant did not suggest to the jury that defendant had previously committed crimes; 2) the trial judge properly attempted to minimize any chance of prejudice to defendant by limiting the witness's testimony about the photograph; and 3) the trial judge properly concluded that a missing videotape of an individual fleeing from the garage had no evidentiary value, and therefore, was not material.

[03/09] US v. Salem
In a prosecution of defendants for wire fraud and receiving stolen funds, district court's sentences based on relevant conduct findings are remanded as the district court made findings as to the reasonableness of the co-schemers' acts only, but it made no finding as to the scope of the jointly undertaken criminal activity under U.S.S.G. section 1B1.3(a)(1)(B).

[03/09] In re: Omnicom Group, Inc. Secs. Litig.
In a securities class action alleging that defendants fraudulently accounted for a transaction, summary judgment for defendants is affirmed where: 1) plaintiffs failed to prove loss causation because their expert's testimony did not suffice to draw the requisite causal connection between the information in the article at issue and the fraud alleged in the complaint; and 2) the generalized investor reaction of concern causing a temporary share price decline was far too tenuously connected -- indeed, by a metaphoric thread -- to the transaction to support liability.

[03/05] Smith v. Mahoney
In a capital habeas matter, the denial of the petition is affirmed where: 1) although defense counsel inadequately investigated the facts of the case before allowing petitioner to plead guilty, petitioner did not establish that he was prejudiced by his lawyer's representation; 2) non-character, non-circumstance evidence need not factor into the constitutionality of a death sentence; and 3) petitioner failed to develop his claim of judicial bias sufficiently to warrant an evidentiary hearing.

[03/05] Quasius v. Schwan Food Co.
In an employment discrimination action, summary judgment for defendant is affirmed where defendant failed to file a motion to withdraw his dispositive admissions after the district court provided ample notice and opportunity to do so.

[03/05] US v. Washington
Defendant's conviction for distribution of a controlled substance is affirmed where: 1) the record did not suggest that defendant's counsel was unprepared or inadequate as counsel, and thus defendant was not effectively compelled to represent himself; 2) despite defendant's admission that his self-representation request was both untimely and for an improper purpose, neither concession served as a basis for reversing the district court's decision to grant his request; 3) there was no abuse of discretion in the district court not ordering a competency evaluation or holding a competency hearing; and 4) there was sufficient evidence to sustain defendant's convictions.

[03/05] People v. Memory
Conviction of defendants for murder arising from a fight in a parking lot outside a bar between two groups of men, the trial court erred in admitting evidence of the Jus Brothers Motorcycle Club as a gang, as there was no foundation that the Jus Brothers were a gang or a criminal enterprise, the evidence was not probative but was used as inadmissible character evidence.

[03/05] US v. Brown
Defendant's bank fraud conviction is affirmed where: 1) the extrinsic evidence of defendant's other uses of fictitious financial documents was substantively and temporally tied to the charged offenses, and those other uses were distinct enough not to be the "needless presentation of cumulative evidence" under Fed. R. Evid. 403; and 2) the extrinsic evidence that defendant had failed to pay for a house inspection was not probative of his intent to defraud the victim and therefore inadmissible under Rule 404(b), but this evidence was quite limited in length, not inflammatory, and was not mentioned during the government's closing arguments.

[03/05] Urbina-Mejia v. Holder
Petition for review of a decision of the BIA denying petitioner's applications for withholding of removal is denied where: 1) the BIA erred in finding that petitioner was not a member of a particular social group for which he would likely be subject to persecution should he be returned to Honduras; 2) petitioner was a member of the particular group of former gang members, which is impossible to leave save by rejoining the organization; but 3) petitioner failed to show that evidence compelled a finding that he had sufficiently corroborated his testimony with evidence or that he had not committed serious nonpolitical crimes while a member of the gang before coming to the United States.

[03/04] US v. Scroggins
Defendant's firearm possession conviction is affirmed where: 1) the district court did not clearly in err in finding that defendant's fiancee consented, at least implicitly, to the officers entering defendant's home; 2) the officers were justified in conducting a protective sweep upon entry due to potential danger; and 3) if a protective sweep for potentially dangerous individuals located such an individual, police could detain and frisk the subject, and, if necessary, temporarily handcuff or otherwise reasonably immobilize him.

[03/04] Rodela-Aguilar v. US
In the government's appeal from a grant of defendant's 28 U.S.C. section 2255 motion for post-conviction relief, alleging trial counsel provided constitutionally ineffective assistance, the order is reversed where: 1) defense counsel was not asked at the section 2255 hearing many questions crucial to establish that her conduct fell outside the wide range of reasonable professional assistance; 2) defendant failed to show prejudice as a result of the allegedly ineffective assistance; and 3) as a matter of hindsight the court agreed with counsel's cost-benefit analysis of whether to call defendant's employer as a witness.

[03/04] US v. Wiest
Defendant's bank robbery conviction and sentence are affirmed where: 1) defendant's girlfriend's stepmother was not an instrument or agent of the government for Fourth Amendment purposes when she turned defendant's clothes over to the government; 2) there was sufficient evidence for a reasonable jury to conclude beyond a reasonable doubt that defendant committed the charged robberies, and used the gun at issue to do them; and 3) comparison of defendant's 684-month sentence to the robbery of three financial institutions with a gun did not lead to an inference of gross disproportionality.

[03/04] US v. Donnell
Defendants' drug conspiracy convictions are affirmed where: 1) the district court did not abuse its discretion in admitting wiretapped phone recordings, because the danger of unfair prejudice did not substantially outweigh their probative value on the issue of defendant's involvement in the conspiracy; 2) any error in introducing evidence concerning one defendant's prior arrests was harmless because they did not have a substantial influence on the jury's verdict; 3) the various defendants, all of whom were alleged to be members of the same overarching conspiracy, were properly joined; and 4) the mere fact that one defendant was unaware of the more distant members of the chain-conspiracy does not defeat the conspiracy charge.

[03/04] Coito v. Sup. Ct.
In plaintiff's wrongful death suit against the State of California and various other defendants for the drowning death of her 13-year old son, superior court's denial of plaintiff's motion to compel production of certain recorded witness statements is reversed and plaintiff's petition for a writ of mandamus granted where: 1) written and recorded witness statements, including not only those produced by the witness and turned over to counsel but also those taken by counsel, are not attorney work-product, and thus neither is a list of witnesses from whom statements have been obtained; and 2) the state failed to show that the recorded statements of the four juvenile witnesses were protected work product.

[03/04] Williams v. Allen
In a capital habeas matter, a denial of petitioner's habeas petition is affirmed where: 1) defense counsel was not ineffective because the record illustrated several reasons why a reasonable defense counsel would pursue an insanity defense based on a mental disease, exclusive of voluntary intoxication; 2) given the contradictory accounts regarding the degree of petitioner's intoxication, it was unlikely that inconsistencies in testimony on that issue would have changed the outcome of the proceedings; 3) counsel adequately emphasized that petitioner engaged in excessive alcohol and drug consumption prior to the crimes, and petitioner did not demonstrate that counsel needed to argue further; and 4) the jury instructions did not relieve the prosecution's burden of proving intent to commit capital murder.

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Injury & Tort Law

[03/09] Zia Trust Co. v. Montoya
In an action for excessive force brought by family members of a man defendant-officer shot and killed while responding to a domestic disturbance, denial of summary judgment based on qualified immunity is affirmed where the court could not say that a van fifteen feet away, which according to the plaintiffs was clearly stuck on a pile of rocks, gave defendant probable cause to believe that there was a threat of serious physical harm to himself or others that would justify his use of force.

[03/09] Espinosa v. City & County of San Francisco
In a 42 U.S.C. section 1983 action claiming excessive force by defendants-officers, denial of summary judgment based on qualified immunity is affirmed where: 1) defendants failed to show as a matter of law that plaintiff's decedent did not have a reasonable expectation of privacy; 2) the district court properly found that defendants failed to show as a matter of law that the emergency and exigency exceptions to the Fourth Amendment warrant requirement applied; 3) defendants failed to show that there were no questions of fact regarding whether a security guard had apparent authority to consent and implied consent; and 4) the district court did not err in finding that there were genuine issues of fact regarding whether the officers intentionally or recklessly provoked a confrontation.

[03/09] Seltzer v. Barnes
Trial court's denial of defendant's anti-SLAPP motion, arising from an underlying suit involving claims against a property management company and homeowners' association, is reversed where: 1) the trial court erred in concluding plaintiff's two causes of action against defendant do not arise from speech or petitioning activity where his alleged conduct was the negotiation of a settlement in the prior case; and 2) because defendant may not be held liable for the alleged conduct under the litigation privilege, plaintiff has failed to show a probability of prevailing on her causes of action for fraud and intentional infliction of emotional distress.

[03/05] Bustos v. Martini Club Inc.
In a 42 U.S.C. section 1983 action based on a late-night confrontation with several off-duty police officers, dismissal of the action is affirmed where: 1) the election of remedies provisions in Tex. Civ. Prac. & Rem. Code 101.106 applied to state law intentional tort claims against a governmental unit and its employees; 2) plaintiff did not allege facts to suggest that the officers who assaulted him misused or abused their official power; and 3) bystander officers had no constitutional duty to prevent the alleged assault.

[03/05] Howard v. St. Germain
In an appeal from the district court's order assessing attorney's fees against defendants based on their improper removal of the case, the order is affirmed where the district court did not abuse its considerable discretion in taxing costs and attorney's fees to defendants because an objectively reasonable basis for removal did not exist.

[03/05] Doe v. S. Carolina Dep't of Soc. Servs.
In a 42 U.S.C. section 1983 action brought by a minor child and her adoptive parents against defendant, an Adoption Specialist with the South Carolina Department of Social Services (SCDSS), alleging violations of their substantive due process rights under the Fourteenth Amendment and state law claims against SCDSS under the South Carolina Tort Claims Act (SCTCA), judgment is affirmed in part, vacated in part, and remanded where: 1) when a state involuntarily removes a child from her home, thereby taking the child into its custody and care, the state has taken an affirmative act to restrain the child's liberty, triggering the protections of the Due Process Clause and imposing "some responsibility for the child's safety and general well being"; 2) because it would not have been apparent to a reasonable social worker in defendant's position that her actions violated the Fourteenth Amendment, she is entitled to qualified immunity; 3) prospective adoptive parents have no substantive due process right to the disclosure of a child's history of sexual abuse; and 4) district court's grant of defendants' motion for summary judgment on the state law claims for gross negligence against SCDSS is vacated and remanded for consideration of the applicability of section 15-78-60(25).

[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.

[03/04] Schreiber v. Moe
In plaintiff's 42 U.S.C. section 1983 against a police officer, district court's judgment is affirmed in part, reversed in part and remanded where: 1) no reasonable jury could find that defendant violated the Fourth Amendment either by entering plaintiff's home or by remaining inside as long as he did; 2) defendant violated plaintiff's right to be free from excessive force, as striking a neutralized suspect who is secured by handcuffs is objectively unreasonable; and 3) because plaintiff's right to be free from excessive force was clearly established, defendant is not entitled to qualified immunity on the excessive force claim.

[03/03] Willis v. Bender
In an action for lack of informed consent and medical malpractice, judgment for defendant is affirmed in part where there was no evidence, specifically expert testimony, that another physician was negligent and therefore no basis to hold defendant liable for his negligence. However, the judgment is reversed in part where defendant's alleged misrepresentations to plaintiff in response to her direct questions allegedly induced her to consent to the surgery and its risks, and under those circumstances, if proved, her consent could hardly be considered "informed".

[03/03] Teachers' Ret. Sys. of La. v. PriceWaterhouseCoopers LLP
In a shareholder derivative action brought on behalf of AIG for breach of fiduciary duty against PricewaterhouseCoopers under New York law, the Delaware Supreme Court certifies the following question to the New York Court of Appeals: Would the doctrine of in pari delicto bar a derivative claim under New York law where a corporation sues its outside auditor for professional malpractice or negligence based on the auditor's failure to detect fraud committed by the corporation; and, the outside auditor did not knowingly participate in the corporation's fraud, but instead, failed to satisfy professional standards in its audits of the corporation's financial statements?

[03/03] Asher v. Unarco Material Handling, Inc.
In a suit brought by past and present Wal-Mart employees and their spouses, claiming injuries caused by exposure to carbon monoxide gas in the enclosed freezer section of a Wal-Mart Distribution Center during a two-week period in late 2005, dismissal of a second group of plaintiffs' claims as time-barred is affirmed where: 1) new plaintiffs cite no authority permitting relation back to the filing date of the original plaintiffs' claims under these circumstances; and 2) the district court did not err in holding that Kentucky's "discovery rule" did not apply to toll the statute of limitations.

[03/02] Davis v. Brouse McDowell, LPA
In plaintiff's legal malpractice suit claiming that defendants failed to timely file three patent applications related to a website-search engine, summary judgment in favor of the defendants is affirmed where: 1) the district court exercised proper jurisdiction over plaintiff's malpractice cause of action; 2) the court did not abuse its discretion in striking portions of the supplemental affidavit of plaintiff's patent law expert; and 3) plaintiff failed to introduce evidence sufficient to establish a genuine issue of material fact as to the patentability of her inventions.

[02/26] Aills v. Boemi
In plaintiff's medical malpractice suit against a plastic surgeon for negligence in connection with a procedure of breast reconstruction, the decision of the second district court of appeal reversing a judgment in favor of plaintiff is quashed and remanded as the court erred in reversing for a new trial on the basis of an improper argument by plaintiff's counsel during closing argument.

[02/26] Phan v. Pham
In plaintiff's suit for defamation, trial court's dismissal of the action is affirmed as, using the material contribution test from Fair Housing Council of San Fernando Valley v. Roommates, it is evident that defendant made no material contribution to the alleged defamation in the e-mail he received from the originator and the only possible defamatory content is to be found in the e-mail was the original content received by defendant.

[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] Diaz v. Carcamo
In plaintiff's action against defendants for injuries she suffered in an automobile collision, judgment of the trial court is affirmed where: 1) evidence of employee's prior employment and driving history were properly admitted and the jury was properly instructed concerning negligent hiring and retention; 2) employee's employment history and driving history is not inadmissible character evidence; and 3) the jury was properly instructed on willful suppression of evidence.

[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.

[02/26] Minix v. Canarecci
In plaintiff's 42 U.S.C. section 1983 suit against several jail officials for their alleged deliberate indifference to her inmate-son's suicide risk, the district court's grant of summary judgment in favor of the defendants is affirmed as the evidence produced was not enough to overcome the "high hurdle" set by the deliberate indifference standard for liability under section 1983.

[02/26] Deen v. Egleston
In a medical malpractice action, the denial of partial summary judgment for defendant is reversed where the district court, in striking down, under the Equal Protection Clause, a state statute that did not exempt the "legally incompetent" from the general two-year statute of limitations, overlooked the essential principle that matters of social and economic policy, particularly when they came to bear on the health and welfare of a state's citizens, were quintessentially legislative in nature.

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Legal Malpractice

[03/03] Oasis W. Realty, LLC v. Goldman
In an appeal involving defendants' anti-SLAPP special motion to strike (Code of Civil Procedure section 425.16) plaintiff-former client's suit for various causes of action including breach of fiduciary duty, arising from defendants' prior representation in connection with plaintiff's efforts to redevelop real estate it owned in Beverly Hills, trial court's conclusion that section 425.16 did not apply because the gravamen of the action was breach of an attorney's duties of loyalty and confidentiality is reversed as all causes of action in the complaint arose from acts in furtherance of protected activity, and plaintiff could not show a probability of prevailing at trial.

[02/18] Medical Protective Co. v. Bubenik
In an action by an insurer seeking a declaration that it had no duty to pay a malpractice judgment, summary judgment for plaintiff is affirmed where the district court did not err in concluding that the malpractice defendant materially breached the cooperation clause in his insurance policy.

[02/11] Anderson v. Chikovani
In a medial malpractice action, defendant's motion to dismiss the appeal is denied as, where a party files a valid motion for new trial, and the trial court issues a timely order denying that motion but no one serves the order or notice of entry of that order, then the applicable deadline for filing the notice of appeal from the judgment is 180 days after entry of judgment.

[02/04] Elam v. Menzies
In plaintiff's suit claiming negligence in a heart operation that defendant-doctor performed, summary judgment for doctor on the ground that Kentucky's one year statute of limitations for medical malpractice suits had run is reversed and remanded as there is a factual dispute as to whether plaintiff knew or should have known he had a claim after the conversation with a second doctor, and thus, this issue should be referred to the jury.

[02/02] Clark v. Baka
In an action for damages for physical and neurological injuries plaintiffs' grandchild allegedly sustained during his birth, plaintiffs' appeal from summary judgment for defendant-hospital management company is dismissed where the district court abused its discretion in certifying the action for appeal because the court of appeals was unable to discern how or why plaintiffs would face hardship or injustice by waiting to appeal until their claims against all defendants were fully resolved by the district court.

[01/25] Stein v. York
In plaintiff's legal malpractice action against her attorney, trial court's entry judgment of $2.65 million in favor of the plaintiff is reversed where: 1) a default judgment for an amount greater than that stated in the complaint is void; 2) constructive notice of potential liability does not satisfy Code of Civil Procedure section 580; 3) the judgment is void and vacated as plaintiff did not comply with the notice requirement; and 4) plaintiff's motion to dismiss the appeal is denied.

[01/21] Truong v. Glasser
In plaintiffs' legal malpractice action against his former attorney arising out of his purported negligent advice in a real estate transaction, grant of attorney's motion for summary judgment is affirmed where: 1) under prior case law, the trial court correctly found plaintiffs first sustained actual injury when they obtained and obligated to pay new counsel to file a lawsuit seeking to escape the consequences of their signing the lease, and therefore sustained actual injury more than one year before the malpractice action was filed; 2) trial court did not abuse its discretion by declining to reject the summary judgment motion based on the absence of headings within the Separate Statement of Material Facts; and 3) under the circumstances, plaintiffs have demonstrated neither that the trial court abused its discretion in considering the evidence submitted by defendant nor that any alleged error was prejudicial.

[01/14] Florida Birth-Related Neurological Injury Comp. Ass'n v. Dep't of Admin. Hearings
In a consolidated medical malpractice action, involving the Florida Birth-Related Neurological Injury Compensation Plan established by the legislature, the decision by the Second District is quashed and remanded where, in order to satisfy the notice requirement of section 766.316, Florida Statutes, both participating physicians and hospitals with participating physicians on staff must provide obstetrical patients with notice of their participating in the plan.

[01/11] American Home Assur. Co. v. Pope
In an action by an insurer seeking a declaration that it was not liable under a professional liability insurance policy for the acts of a psychologist who treated a victim of sexual abuse but failed to report the abuse, summary judgment for insurer is reversed where the "knowingly wrongful" exclusion in the policy on which the order was based was ambiguous.

[12/02] PrediWave Corp. v. Simpson Thacher & Bartlett LLP
In plaintiff's suit against defendant-law firm and other attorneys who had previously represented plaintiff-company and its former president and CEO, grant of defendants' motion to strike under the anti-SLAPP statute is reversed as the trial court erred in determining that this was a SLAPP suit subject to a special motion to dismiss as the defendants did not satisfy their threshold burden of demonstrating that the principal thrust of any of the complaint's causes of action was activity protected by the anti-SLAPP statute.

[12/01] US v. Martinez
Conviction and sentence of an anesthesiologist, who had operated a pain-management clinic, for health care fraud and related crimes is affirmed where: 1) any error in admitting a video of a doctor performing certain medical procedures was harmless given the overwhelming evidence that defendant was not performing medically necessary procedures and that the procedures were not those for which he was billing, and also considering the weak evidence to the contrary; 2) defendant's claim that admission of the video violated the Confrontation Clause is rejected; 3) there is sufficient evidence to support defendant's conviction for health care fraud under 18 U.S.C. section 1347; 4) there was sufficient evidence for a jury to conclude that defendant committed mail and wire fraud; 5) there is sufficient evidence to to conclude that defendant proximately caused the deaths of two patients; 6) any error in admitting testimony of an addiction specialist was harmless; and 7) defendant's sentence is procedurally and substantively reasonable.

[11/24] Standard Microsystems Corp. v. Winbond Elec. Corp.
In plaintiff's suit against a Taiwanese corporation and an Israeli corporation claiming that they misappropriated the design of a microchip used in manufacturing personal computers, trial court's entry of default judgment against defendants is reversed where: 1) undisputed facts plainly establish defendants' attorney's fault necessary to trigger a right to mandatory relief; 2) plaintiff's argument that relief was barred by Code of Civ. Proc. section 1008, which restricts motions for reconsideration and renewals of previously denied motions, is rejected; and 3) to the extent a literal application of section 1008 might conflict with the provisions of section 473(b), the latter must prevail.

[11/23] Jameson v. Desta
In plaintiff's medical malpractice suit against defendant-doctor who treated plaintiff while he was incarcerated at a correctional facility, dismissal of the suit is reversed as the trial court erred in dismissing the action on the ground that plaintiff failed to appear telephonically at a case management conference and a at a subsequent hearing on an order to show case, as the record clearly indicates that plaintiff notified the trial court on numerous occasions that prison personnel were not allowing him to communicate telephonically with the court, yet the record does not indicate that the trial court made any inquiry into plaintiff's contentions.

[11/16] Montalvo v. Gonzalez-Amparo
In an action alleging malpractice by plaintiff's deceased mother's medical care providers, dismissal of the suit as time-barred is vacated and remanded where: 1) the date of accrual for plaintiff's personal claim was within the one-year statute of limitations; and 2) under 32 L.P.R.A. section 255, plaintiff is entitled to bring her mother's medical malpractice claim because it was brought within one year of her mother's death.

[11/12] Berry & Murphy, P.C. v. Carolina Cas. Ins. Co.
In an action for insurance coverage for a malpractice lawsuit, summary judgment for defendant is affirmed where: 1) the alleged acts of malpractice in a letter sent to the malpractice defendant and the lawsuit were "connected by an inevitable or predictable interrelation or sequence of events" for purposes of the policy; 2) the insurance policy treated as one claim all "related wrongful acts"; and 3) because defendant had no legally cognizable duty to defend or indemnify a claim, plaintiffs' bad faith claim could not survive.

[11/12] Cassel v. Sup. Ct.
In plaintiff's legal malpractice suit, his request for writ of relief from two orders excluding evidence in favor of his former attorneys is granted and the orders vacated as the communications are a client and his attorney, outside the presence of, and not otherwise communicated to, any opposing party or the mediator, and reveal nothing said or done in the mediation discussion.

[10/30] Akin, Gump, Strauss, Hauer & Feld, LLP v. Nat'l Dev. & Research Corp.
In plaintiff's legal malpractice case, court of appeals' judgment in favor of plaintiff is reversed where: 1) there is legally insufficient evidence to support a finding that damages in the underlying suit would have been collectible; and 2) the defendant attorneys' negligence did not proximately cause the entire amount the jury awarded as damages for attorney's fees and expenses. Because there is some evidence that the attorneys' negligence caused some amount of attorney's fees and expenses in the underlying suit, the case is remanded.

[10/28] James River Ins. Co. v. Kemper Cas. Ins. Co.
In plaintiff-insurer's case seeking a declaration that it had no duty to defend or indemnify two lawyers who were sued for malpractice, district court's grant of summary judgment in favor of defendant-insurer is reversed with instructions to enter the declaratory judgment requested by plaintiff as its policy does not apply since it excludes coverage of conduct covered by a prior insurer, and all the wrongful acts alleged in the malpractice suit arose from events that took place in defendant's policy period.

[10/23] Kamelgard v. Macura
In plaintiff-surgeon's case against defendant, another surgeon, for defamation, district court's dismissal of the case without prejudice is affirmed, but the judgment is modified to make the dismissal with prejudice, as the suit was time-barred.

[09/04] Kardos v. Harrison
In wrongful death/survival action claiming defendant-doctor violated the standard of care by failing to refer decedent (cancer victim) for a biopsy or follow-up after malignant lesions were first revealed in a CT scan, and also claiming that decedent suffered a lost chance of survival as a result, judgment as a matter of law for defendant is affirmed where the superior court properly held that plaintiff failed to prove, through expert testimony with reasonable medical probability, that doctor's alleged negligence caused any lost chance of survival.

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Professional Malpractice

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Workers' Comp

[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.

[02/12] 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] Groover v. Scottsdale Ins. Co.
In a wrongful death action based on a construction accident, summary judgment for defendants is affirmed where plaintiff's remedy was limited to workers' compensation under Louisiana law.

[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.

[10/29] Green-Brown v. Sealand Servs. Inc.
Plaintiff's petition for review of a decision of the Benefits Review Board of the US Department of Labor, affirming an ALJ's decision that awarded hearing loss compensation to plaintiff under the Longshore and Harbor Workers' Compensation Act (LHWCA) based on an audiogram that did not comply with the American Medical Association Guides to the Evaluation of Permanent Impairment (AMA Guides), is granted and reversed because section 908(c)(13)(E) of the LHWCA mandates that hearing loss compensation be based on hearing loss determinations made in accordance with the AMA Guides.

[10/13] Esquivel v. Worker's Comp. Appeals Bd.
A ruling reversing a workers' compensation judge's findings and awards in favor of claimant is affirmed where the Worker's Compensation Appeals Board did not err in concluding that claimant's new injuries are not compensable under the Worker's Compensation Act because they clearly occurred outside the reasonable geographic area of her employer's compensability risk.

[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.

[09/09] Williams v. Hilb, Rogal & Hobbs Ins. Serv.
In a negligence action against an insurance agency for failing to include workers compensation in the insurance package arising from a multimillion dollar judgment against plaintiff for injuries suffered by employee in a catastrophic fire, trial court's judgment is affirmed where: 1) the evidence amply supported the court's finding that defendant's employee failed to use the skill and care a reasonably careful insurance professional would have used in similar circumstances; 2) the action is not barred by the statute of limitations; and 3) the trial court did not err in refusing to assign fault to the plaintiff.

[08/26] Beverly Hilton Hotel v. Wkrs.' Comp. Appeals Bd.
In a petition for review of the Workers' Compensation Appeals Board's order requiring petitioner to pay vocational rehabilitation benefits to respondent, the petition is granted where the Board's decision was not a final determination of respondent's right to vocational rehabilitation benefits and because Cal. Lab. Code section 139.5 had been repealed.

[08/21] Baur v. Wkrs.' Comp. Appeals Bd.
In a petition for review of a worker's compensation judge's order granting petitioner's employer a credit against future worker's compensation payments resulting from petitioner's injuries, the petition is denied where payments from the California Insurance Guarantee Association counted toward such a credit.

[08/18] Pueschel v. Peters
In an action alleging interference with plaintiff's application for workers' compensation benefits, summary judgment for defendant is affirmed where: 1) plaintiff waived her Title VII claim by appealing her claim before the Merit Systems Protection Board to the Federal Circuit; and 2) plaintiff could not be subjected to a hostile work environment where all of the alleged conduct occurred after she left the workplace.

[06/11] Simpson v. Empire Truck Lines, Inc.
In an action arising out of a truck accident under the Texas Workers Compensation Act (TWCA), judgment for Defendant is affirmed where the driver of the truck was not Defendant's statutory employee under the Federal Motor Carrier Safety Regulations, and thus Defendant was not vicariously liable under the TWCA.

[06/08] Zaragoza v. Ibarra
In an civil action brought by a worker against a homeowner, trial court's grant of summary judgment for defendant is affirmed where: 1) plaintiff's injury does not fall within the exclusive purview of the workers' compensation laws despite his employer's status as an unlicensed contractor as defendant had not worked 52 hours in the 90 days prior to the date of the injury specified in Labor Code sec. 3352(h); and 2) defendant was not negligent, as plaintiff's injury was entirely his own fault and there was no want of ordinary care taken by the plaintiff-homeowner.

[05/11] Smith v. Workers' Comp. Appeals Board
In a dispute involving attorney's fees, Court of Appeals judgment is reversed where Labor Code sec. 4607 authorizes an award of attorney fees to employees who successfully resist efforts to terminate their award of continuing medical treatment, but does not permit an award of fees to employees who successfully challenge the denial of specific treatment requests.

[05/04] California Self-Insurer's Sec. Fund v. Lorber Indus. of Cal.
Bankruptcy Court's denial of Plaintiff's request to give its workers' compensation reimbursement claim priority is affirmed where Plaintiff's reimbursement claim did not qualify as an excise tax under 11 U.S.C. section 507(a)(8)(E)(ii).

[04/30] Bontempo v. Workers' Compensation Appeals Board
In an action involving permanent disability benefits, Workers' Compensation Appeals Board decision is annulled with respect to the pulmonary impairment award where the evidence supported plaintiff's claim that he was entitled to the additional 15 percent of permanent disability benefits awardable under Labor Code sec. 4658 (d)(2).

[04/09] Hill v. Director, Office of Workers Comp. Programs
Petition for review of an order of the Benefits Review Board denying plaintiff's claim for survivor's benefits under the Black Lung Benefits Act is granted where the Board's decision is not supported by substantial evidence in the record. Matter is remanded for the award of benefits, as there is no issue of credibility nor any dispute that the deceased suffered from work related pneumoconiosis that led to his death, and thus plaintiff established her entitlement to survivor's benefits as a matter of law.

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