Fewer Lawsuits for Corporations, But More Oversight on Data andTax Risk

Corporate counsel report a decrease in the number of lawsuits against their companies over the last year, but they face more regulatory proceedings and arbitrations in navigating increased cyber risk, data protection and tax issues.

Norton Rose Fulbright’s 2018 Litigation Trends Annual Survey polled 365 senior corporate counsel representing US-based organizations on disputes-related issues and concerns.

Two thirds of respondents report feeling more exposed in 2018 to cybersecurity and data protection disputes. The survey also found that the growing international nature of many business operations has caused a spike in conflicts related to countries’ differing discovery and data protection laws and regulations.

See the survey results.



E-Discovery Day Observance Set for December 4

Thousands of legal professionals are expected to participate in E-Discovery Day, scheduled for Dec. 4, 2018, to learn more about e-discovery and the vital role it plays within the legal process.

Exterro, one of the E-Discovery Day supporters, says this one-day industry-wide, vendor-neutral celebration, will feature an all-star lineup of complimentary in-person events and online webcasts. 34 leading legal organizations are proud to support E-Discovery Day and partnered together to host all events free of charge.

The event will include:

  • 13 educational webcasts with e-discovery experts (e.g. federal judges, e-discovery managers, in-house attorneys and more)
  • 7 in-person networking events located across the country

Get details or sign-up for an event.



Houston Appellate Lawyer J. Stephen Barrick Named Partner at Hicks Thomas

Texas-based litigation boutique Hicks Thomas LLP announced that Houston appellate specialist and trial lawyer J. Stephen Barrick has been named a partner in the firm.

Barrick concentrates his practice on civil appeals in state and federal courts. The substantive area of his appellate practice includes contracts, oil and gas, intellectual property, insurance coverage, and catastrophic personal injuries. He has been listed as in the Texas Super Lawyers rating guide every year since 2012, is board certified in civil appellate law, and serves as the firm’s lead appellate lawyer.

He is Board Certified in Civil Appellate Law by the Texas Board of Legal Specialization.

Read more about the announcement.




Expropriation Ruling Explains Landowner’s Burden to Prove Severance Damages to a ‘Legal Certainty’

Oil and gas pipelineA Louisiana appellate court has added to the relatively sparse body of appellate rulings in pipeline expropriation matters with an unpublished opinion affirming that landowners whose property is expropriated must prove their entitlement to severance damages to a “legal certainty.”

Writing in the Liskow & Lewis Energy Law Blog, Laura Springer Brown discusses the case of  Enterprise Products Operating, LLC, v. Southwood Terminal, L.L.C.

In its ruling, the court affirmed a two-part test for severance damages: The landowner must prove a diminution in value, “and only then could the jury continue on to the issue of the amount of damages.”

Read the article.



PG&E’s Legal Exposure to Liability for Fires Could Cost Customers – Or Lead to Bankruptcy

If Pacific Gas and Electric Company is found liable for the devastating California fires now burning, the company’s customers could be on the hook to pay the bill, or even lead to a PG&E bankruptcy, according to The New York Times.

“Many fires in recent years have been caused by downed power lines serving California’s utilities. State officials have determined that electrical equipment owned by PG&E, including power lines and poles, was responsible for at least 17 of 21 major fires in Northern California last fall. In eight of those cases, they referred the findings to prosecutors over possible violations of state law,” write Times reporters Ivan Penn and Peter Eavis.

Some victims of the latest fires have sued PG&E, alleging negligence and health and safety code violations by the utility company.

Read the NY Times article.



IADC Journal Covers Asbestos, Punitive Damages and Manufacturers’ Legal Hurdles

The International Association of Defense Counsel (IADC), an invitation-only global legal organization for attorneys who represent corporate and insurance interests, has published its fourth quarter 2018 Defense Counsel Journal (DCJ) with articles on current trends in the practice of law.

The current DCJ issue’s articles explore asbestos tort reform on the state level, the growth of punitive damages in Anglo-Canadian contract law, and legal hurdles that manufacturers face when launching products in the United States.

In a release, the organization, said the DCJ is a quarterly forum for topical and scholarly writings on the law, including its development and reform, as well as on the practice of law in general. DCJ articles are written by members of the IADC, which is a 2,500-member, invitation-only, worldwide organization that serves its members and their clients, as well as the civil justice system and the legal profession.

The DCJ is available for free and without a subscription via the IADC’s website.

The current DCJ issue is the first to be overseen by new editor and former IADC board member Kenneth R. Meyer, a partner in the products liability practice group at McCarter & English, LLP, in Newark, N.J. The issue also is the first under the leadership of new IADC president Craig A. Thompson, a partner at Venable LLP.

Following are brief summaries of key articles included in the fourth quarter 2018 issue of the DCJ:

— “The More Things Change: Bankruptcy Trust Reform and the Status Quo in Asbestos Litigation” – The article debunks plaintiffs’ lawyers’ arguments that trust transparency reforms would delay litigation, deny compensation to the most sympathetic of plaintiffs, and divest plaintiffs of their traditional control over the trust and tort systems. The authors explain how trust transparency reforms have not delayed litigation and have, in fact, accelerated compensation from the asbestos trusts. The article also describes that, where reforms have been enacted, they have achieved their purpose of fostering communication within the two-tiered system of asbestos compensation so that juries can properly account for all of a plaintiff’s exposures to asbestos.

— “Moving Beyond Uberrima Fides? The General Duty of Honesty in Contractual Performance and Punitive Damage Awards in Anglo-Canadian Contract Law” – The article’s authors suggest that the characterization of punitive damages as “the bane of corporate defendants” has perhaps never been more true under Anglo-Canadian contract law. This article demonstrates that while punitive damages for pure breach of contract are undoubtedly exceptional remedies at common law, they are generally larger and more common than ever before, which marks an extraordinary development in Anglo-Canadian contract law considering that only 30 years ago punitive damages were barred for pure breach of contract.

— “Entering the U.S. Market: Legal Hurdles That Manufacturers Must Overcome” – Investigates the life cycle of a product’s development and marketing and provides insight into some of the most common legal hurdles – especially consumer protection lawsuits – faced by manufacturers entering the U.S. market.



Court Holds That Arbitration Clauses Bind Nonsignatories Who Seek to Enforce Contracts

A post on the website of Pepper Hamilton describes a North Carolina case that involved non-signatories to a construction contract attempting to avoid the contract’s arbitration claim.

When the building’s current owner asserted various claims against the original owner, architect and general and subcontractors, the general contractor moved to have the suit dismissed on the ground that they were subject to arbitration. Plaintiffs argued that the arbitration clauses were not binding on them because the contracts that contained them were not assigned to plaintiffs when they purchased.

“The court held that the plaintiffs’ argument could not be squared with the language of the Contractor Warranty. On its face, the Contractor Warranty stated that [the general contractor] performed all work ‘in accord with the Contract Documents.’ This express reference to [the contractor’s] construction contract put the plaintiffs on notice of the contract’s existence,” explains the article’s author, Jane Fox Lehman.

Read the article.



Werner Co. Hit with $4.8M Jury Verdict for Defective Ladder

Jurors have returned a $4.8 million verdict against Greenville, Pennsylvania-based Werner Co., finding the ladder company liable for the faulty design and marketing of an aluminum ladder that collapsed, permanently injuring a Lewisville, Texas man.

According to a release from Androvett Legal Media & Marketing, the jury in Denton County District Court determined that the company knew of problems with the Werner Model 354 Type II ladder and was negligent in not warning consumers of the risks when using it. The jury deliberated for a day and a half before reaching its verdict, awarding approximately $1.2 million for past damages and $3.6 million for future damages to John DeVallee.

“In mediation, Werner’s initial offer was $150,000,” said Joe Fisher, partner at Beaumont-based Provost Umphrey L.L.P., who represented DeVallee. “They said they would not offer any more because they’ve won 60-plus trials in a row.”

DeVallee, 46, was severely injured in 2011 after one of the ladder legs bent inward – a known falling hazard associated with this type of ladder. The fall led to crushing injuries to DeVallee’s arm and wrist and left him without use of his dominant hand for the rest of his life.

Fisher selected the jury and then turned over the rest of the case to fellow Provost Umphrey partner Edward Fisher and attorney Brian Zimmerman of Zimmerman, Axelrad, Meyer, Stern & Wise, P.C. David L. Cook of Harris Cook LLP was also part of the trial team and was instrumental in securing the verdict.

“In essence, the jury saw that Werner – through its negligence – pretty much cut off John’s dominant hand,” said Edward Fisher. “That’s a lifetime injury that will require continued medical care and treatment and that, unfortunately, cannot be repaired. No one should have to deal with something such as that simply because they were working on a four-foot tall step ladder.”

The case is J. Devallee v. Werner Co., Case No. 2011-40709-362 in the 442nd District Court of Denton County.



Oklahoma Jury Hits Health Insurer Aetna with $25.5 Million Verdict

The Oklahoman reports that jurors wanted to send a message to health insurer Aetna after hearing how the company’s overworked doctors denied an Oklahoma cancer patient’s claim for coverage for proton beam therapy.

Reporter Nolan Clay writes that jurors awarded $25.5 million to the patient’s estate and to her husband, a retired Oklahoma City firefighter, in the bad-faith case against the company.

The patient, Orrana Cunningham, died in 2015 from a viral outbreak after getting treatment for the tumor in her head and returning home. She was 54.

Read the Oklahoman article.



Forex-Rigging Settlements Yield $300M for Class Counsel

Bloomberg Law reports that class counsel will take home $300 million from settlements over an alleged conspiracy among banks to fix prices in the foreign exchange market.

The court issued the order on Thursday, Nov. 8.

The settlement, approved in August with banks that include Bank of America, JP Morgan and Citibank, is the third largest antitrust class action settlement in history, according to plaintiffs, writes Bloomberg reporter Perry Cooper.

Read the Bloomberg article.




West Mermis Named to National Best Law Firms for 2019

Houston-based construction and business litigation firm West Mermis, PLLC, has earned national recognition among the Best Law Firms in the country by U.S. News & World Report and The Best Lawyers in America.

The firm was selected to the 2019 list of construction litigation firms recognized nationally, and in the Houston metro area, West Mermis is ranked in the top tier of such law firms.

The U.S. News – Best Lawyers selection process involves a lawyer survey and feedback from clients on a firm’s expertise, responsiveness and cost-effectiveness along with other questions.

Read details about the award.






Suit Claims Competitors Lured Away Legal Clients With Payments From ‘Briefcase Full of Cash’

The ABA Journal reports that a $30 million lawsuit alleges a personal injury firm had its clients stolen by two competitors who sent case runners to a pain clinic where they enticed the patients to switch firms.

Reporter Debra Cassens Weiss writes: “The law firm Ginarte Gallardo Gonzalez & Winograd, with offices in New York and New Jersey, alleges its clients were lured away with promises of payments of about $2,000 or $3,000, which were paid from a ‘briefcase full of cash’ by lawyer William Schwitzer.

The suit names Schwitzer and his firm, William Schwitzer & Associates in New York City, as defendants, along with some other lawyers associated with the firm.

Read the ABA Journal article.



Review the Newest Volume of Ediscovery Case Law Summaries (Fall 2018)

Zapproved has published the new Fall 2018 Ediscovery Case Law Summaries. This new edition explores how recent spoliation, proportionality, and other ediscovery-relevant case decisions are guiding litigation.

This free volume, which can be downloaded from Zapproved’s website, includes 12 full summaries, plus brief abstracts of case law from the last 10 years.

The new summaries are:

  • World Trade Ctrs. Assoc., Inc. v. Port Auth. of N.Y. & N.J.
  • BankDirect Capital Fin., LLC v. Capital Premium Fin., Inc.
  • EPAC Techs., Inc. v. HarperCollins Christian Publ’g, Inc.
  • De Simone v. VSL Pharms., Inc.
  • Elliott-Thomas v. Smith
  • GoPro, Inc. v. 360Heros, Inc.
  • Nece v. Quicken Loans, Inc.
  • The Physicians Alliance Corp. v. WellCare Health Ins. of Ariz., Inc.
  • Cen Com, Inc. v. Numerex Corp.
  • Equal Emp’t Opportunity Comm’n v. FedEx Ground Package Sys., Inc.
  • In re Simply Orange Orange Juice Mktg. & Sales Practices Litig.
  • Johnson v. Ford Motor Co.

Download the summaries.



Supreme Court Weighs Google Settlement That Paid Class Members Nothing

The U.S. Supreme Court heard arguments this week on whether it should place limits on class-action settlements in which the plaintiffs’ lawyers receive millions and their clients get nothing, reports The New York Times.

“The case arose from an $8.5 million settlement between Google and class-action lawyers who said the company had violated its users’ privacy rights,” writes Times reporter Adam Liptak. “Under the settlement, the lawyers were paid more than $2 million, but members of the class received no money.”

As a part of the settlement, Google agreed to contribute to institutions concerned with privacy on the internet, including centers at Harvard, Stanford and Chicago-Kent College of Law, and AARP.

“How can you say that it makes any sense?” Justice Samuel A. Alito Jr. asked a lawyer for the members of the class.

Read the NY Times article.



Lawsuit Claims El Paso Doctor, Lawyer Conspired to Violate State Law

An El Paso neurosurgeon is the subject of a lawsuit filed last week, accused of unlawfully conspiring with a local attorney to solicit legal representation for a dying truck wreck victim, according to a release from Androvett Legal Media & Marketing.

The lawsuit, filed by El Paso resident Karla Triana, claims that while her mother was undergoing emergency surgery at Del Sol Medical Center, Dr. Bratislav Velimirovic handed her a lawyer’s business card and urged her to contact the attorney. Triana’s mother died as a result of her injuries.

Triana subsequently received a call and text message on her personal cell phone from an employee in the office of the attorney, Victor J. Bieganowski, indicating that he sought to represent her in a civil claim against the trucking company.

“It’s clear that the doctor and the attorney are breaking the law by working together to solicit legal representation of accident victims and their families,” says attorney Tom Carse of Dallas. Carse handles cases involving charges of unlawful representation, known as barratry, against other attorneys, according to the release.

“It’s logical to think this was not an isolated incident, and that there may be more instances of this conspiracy still to be uncovered.”

The release states that Bieganowski was convicted in 2000 on federal charges for his role in a massive medical and legal fraud, and received a 30-month prison sentence and a fine of $375,000. He was disbarred, but subsequently regained his law license. The fraud charges involved claims against union officials for funneling the cases of injured workers to Bieganowski’s legal practice and the medical practice of his brother, Dr. Arthur Bieganowski.

Dr. Velimirovic is a partner in Neurosurgical Specialists of El Paso. According to the clinic’s website he is a “board-certified neurosurgeon who utilizes advanced techniques to perform minimally invasive spine surgery, cranial surgery and interventional radiologic procedures.”



The Supreme Court Power Index: Judging the Most Powerful Judges

U.S. Supreme CourtA new study by Above the Law takes a unique approach to ranking the influence and impact of justices of the U.S. Supreme Court by rating them based on the career success of their former clerks.

“Today’s Supreme Court clerks are tomorrow’s Supreme Court justices. They are tomorrow’s attorneys general and United States attorneys.” explains executive editor Elie Mystal. “They are tomorrow’s law professors and corporate GCs. Former Supreme Court clerks are incredibly powerful people in their own right, and they received their final training from a Supreme Court justice.”

The study covers former justices as well as current members of the court. That’s why, for example, Sandra Day O’Connor, Anthony Kennedy and the late Thurgood Marshall score high in the rankings. The study focuses on four categories: the judiciary, Biglaw, academia and government.

Read the Above the Law article.



Paul Hastings Faces Malpractice Claims Over Cleanup Advice

A California appellate court has given Tokai Intl. Holdings Inc. the go-ahead to proceed with cleanup cost-related malpractice claims against law firm Paul Hastings LLP, according to a Bloomberg Law report.

“The firm allegedly failed to properly advise the Delaware-based company about environmental cleanup costs taken on by a subsidiary when it bought a holding company in 2005. Paul Hastings provided advice during the acquisition,” writes Bloomberg reporter Peter Hayes.

Tokai alleges an agreement in a contract for the purchase of a holding company left it, rather than the seller, with $2 million or more in reimbursed cleanup costs related to contamination at a former manufacturing site in California.

Read the Bloomberg Law article.



Suit Alleges Trump Endorsements Misled Consumers and Defrauded Investors

The ABA Journal reports that a would-be class action suit filed against President Donald Trump alleges he engaged in a scheme to defraud investors by promoting three companies that charged people to sell their products and learn about business opportunities, while failing to disclose the financial risk of the buy-in.

Reporter Debra Cassens Weiss writes that the suit alleges Trump didn’t disclose that he was “lavishly paid” for the endorsements, and instead led consumers to believe that his backing was based on due diligence, inside information and personal experience with the companies.

Defendants include Trump, the Trump Organization and children Donald Trump Jr., Eric Trump and Ivanka Trump.

Read the ABA Journal article.



Argument Preview: How Should Courts Decide If Parties to an Arbitration Contract May Aggregate Their Claims?

SCOTUSblog reports that in Lamps Plus Inc. v. Varela, the U.S. Supreme Court will decide whether the U.S. Court of Appeals for the 9th Circuit correctly held that an employer consented to class arbitration.

The employer in that case included language in the arbitration contract that committed the parties to use arbitration “in lieu of any and all lawsuits or other civil legal proceedings,” specified that arbitral claims include those “that, in the absence of this Agreement, would have been available to the parties by law,” and authorized the arbitrator to “award any remedy allowed by applicable law.”

Lower courts have found that the arbitration agreement could be read to authorize class arbitration, and that California contract law called for ambiguity on that point to be resolved against the contract’s drafter, Lamps Plus, writes Charlotte Garden.

Read the article.




Contract Case: Lack of Consideration – Or Not!

Money-payment-cashWriting in ContractsProf Blog, Myanna Dellinger discusses a case that “nicely demonstrates how the consideration doctrine is still relevant and, as always, the importance of getting contracts in writing even though they do not have to be.”

The plaintiff had agreed to do some work for the defendant for $10 an hour, with the understanding that he would receive a $150,000 bonus after nine months. Somewhere along the way, the employer gave him a raise to $11, and then, after a total of 18 months of labor, fired him and refused to pay the bonus.

Dellinger explains that the court apparently found that because the plaintiff actually received one single dollar more per hour over nine months, there was no consideration for the original promise of working for a “reduced salary.”

Read the article.