Download: Zapproved’s Winter 2019 Volume of Ediscovery Case Law Summaries

Zapproved has published its Winter 2019 Volume of Ediscovery Case Law Summaries, featuring — as the company says in a release — “some heart-pounding tales of egregious misconduct by corporate and individual litigants.”

The quarterly publication can be downloaded from Zapproved website at no charge.

This volume covers a wide range of topics, from spoliation and sanctions to proportionality, scope, and technology. It includes cases where deleted evidence isn’t, in fact, spoliation; disparate outcomes regarding the form of production; and a brief discourse about how clowns are scary, but ESI is not.

Download the publication.




Jury Awards $21 Million to Hotel Dishwasher After She Was Forced to Work on Sundays

A federal jury in Miami set a $21.5 million verdict for a Haitian immigrant in a religious accommodation case who lost her job at a Conrad Hotel because she would not work on Sundays because of religious beliefs.

The Washington Post reports that Marie Jean Pierre informed the hotel when she was hired about a decade ago that she was a missionary for the Soldiers of Christ Church. Most of the time the hotel allowed her to have Sundays off, but in 2015 a kitchen manager started insisting that she work on Sundays.

“Pierre’s attorney, Marc Brumer, said the hotel had an obligation to ‘reasonably accommodate’ their employees’ religious beliefs — and argued they could have easily done so for Pierre. Instead, he said, they charged her with absenteeism and fired her,” writes the Post‘s Amy B. Wang.

A cap on punitive damages will limit the payout to about $300,000 if the verdict is upheld.

Read the Post‘s article.





Register for ACC Xchange 2019 Mid-Year Meeting for Legal Executives

ACCThe Association of Corporate Counsel is accepting registrations for Xchange 2019, The Mid-Year Meeting for Advancing Legal Executives.

General Counsel News readers who register by Jan. 30 will receive a $100 discount when using the code GCNEWS19.

The event is scheduled for April 28-30, 2019, at the Hotel Minneapolis in Minneapolis, MN.

ACC has arranged for four curricula addresses in the areas of contracts, leadership, legal operations, and litigation.

More information may be found here:

Register for the event.




A Top 10 Verdict in Texas

A team of lawyers with Boyd Powers & Williamson alleging deceptive business practices against BBVA Compass Bank won a $98 million verdict for their client, a real estate developer who was working to build three luxury subdivisions in Tarrant County, Texas.

On its website, the firm explains the case:

“David Bagwell is a real estate developer who was working to build three luxury subdivisions in Tarrant County, Texas. Following the financial crisis of 2008, Mr. Bagwell entered into modification negotiations with his bank, BBVA Compass, to refinance the loans which were funding the new developments. In the course of the negotiations, Compass repeatedly told Mr. Bagwell that his loans would be renewed. However, after secretly negotiating with one of his competitors, those same loans were sold off at a discounted rate. A short time later, the competitor foreclosed and Mr. Bagwell was forced into bankruptcy.”

Read details about the case.



HP and Hewlett Packard Enterprise Will Pay a $25 Million Settlement to Salespeople Who Sued Over Messed Up Pay

Business Insider reports that about 2,000 of HP’s and Hewlett-Packard Enterprise’s salespeople will finally be getting their share of a $25 million settlement paid to them by the two companies.

“In 2017, HP agreed to the $25 million settlement, from which the lawyers will take their cut — but it was just this week that the court approved the settlement arrangement, according to Business Insider’s Julie Bort. “That means the money should be soon forthcoming to the plaintiffs at last, according to the final court documents seen by Business Insider.”

The company’s salespeople complained that the company’s antiquated computer systems were not doing a good job of calculating their commissions.

Read the Business Insider article.



Opioid Overdoses Overtake Car Accidents on List of Preventable Deaths

Pills - medicineThe National Safety Council’s recently released report on preventable injury and fatality statistics, reveals that accidental opioid overdoses have overtaken car accidents as a leading cause of deaths among Americans, according to a post on the website of Androvett Legal Media & Marketing.

“For the first time since the early 1960s, the life expectancy of Americans is consistently decreasing. Irrespective of all the advances in medicine that have occurred since the early 1960s, Americans are actually living shorter lives than they did only 10 years ago. The primary reason for this decline is the opioid epidemic, which was created in substantial part by the irresponsible marketing and distribution of these drugs by major drug companies,” notes Dallas attorney Jeffrey Simon of Simon Greenstone Panatier, P.C.

Simon Greenstone and co-counsel collectively represent more than 50 counties in Texas as well as other states in opioid litigation, seeking to recover economic damages caused by the reckless and negligent spread of highly addictive opioid drugs in communities across the U.S.

“The fact that the risk of death from accidental overdose of opioid drugs now exceeds the death risk from motor vehicle crashes, fire, drowning or even gun assault is another grim testament to the fact that corporate misconduct can, and has, destroyed many innocent lives. On behalf of our clients, we will hold those companies accountable for the harm they’ve done.”



Government Contracts Lawyer Jason Workmaster Joins Miller & Chevalier

Miller & Chevalier Chartered announced that government contracts expert Jason N. Workmaster joined the firm as a member in the Government Contracts Counseling and Litigation Practice.

Workmaster joins Miller & Chevalier from law firm Covington & Burling LLP. Previously, he spent more than 13 years at multinational law firm McKenna, Long & Aldridge LLP (now part of Dentons), then home to one of the world’s preeminent governments contracts practices, the firm said in a release.

“I’m thrilled to be joining a group at Miller & Chevalier that includes experienced trial lawyers who have significant expertise representing government contractors,” Workmaster said. “Miller & Chevalier is known for its high quality, and as a firm that has successfully deployed its multi-disciplinary teams to assist with the full gamut of issues that contractors confront, including high-stakes internal investigations and litigation when needed.”

The firm said Workmaster advises defense and civilian agency contractors who provide commercial and non-commercial goods and services to the government – such as weapons systems, IT services, cutting-edge software, and staff augmentation. He counsels these clients on all facets of the contracting process – from bid protests, to claims and disputes, to responses to government audits and investigations, to False Claims Act (FCA) cases.

Among his client engagements, Workmaster led the team representing Kellogg Brown & Root (KBR) in their successful 11-year litigation before the Armed Services Board of Contract Appeals (ASBCA) of a $44 million cost allowability dispute with the government involving KBR’s and its subcontractors’ use of private security contractors to protect themselves as they provided vital logistical support services to the military at the height of the Iraq War. Just earlier this month, he argued before the Federal Circuit in the government’s appeal of the ASBCA’s decision in KBR’s favor. His work in United States ex rel. Ubl v. IIF Data Solutions has been recognized as a rare jury verdict victory in a multi-million-dollar FCA action involving the GSA Schedules program. Further, he has counseled clients including Lockheed Martin Corporation and ITT Corporation on complex and newsworthy bid protest actions.

A frequent author and lecturer, Workmaster currently serves as President of the Boards of Contract Appeals Bar Association, the principal bar association focused on supporting and improving the practice of law before the federal Boards of Contract Appeals. He is also Co-Chair of the Pricing and Regulatory Compliance Oversight Committee of the Coalition for Government Procurement, the leading trade association for companies that sell commercial items to the government.

“Jason is a creative, experienced government contracts lawyer whose broad skillset will immediately benefit our clients that engage the government across multiple fronts. He is highly respected within the legal community and his record of success representing clients across the government contracts spectrum speaks for itself,” said Andrew T. Wise, Chair of Miller & Chevalier’s Litigation Department.

“Jason has developed a national reputation as a thoughtful and dedicated advocate for his clients. He is a seasoned government contracts lawyer and an accomplished practitioner in litigation, bid protests, and FCA disputes, which complements and expands our existing capabilities,” said Marc J. Gerson, Chair of Miller & Chevalier. “His well-rounded offering will greatly benefit our clients and we are pleased to welcome him to the firm.”

Workmaster earned a J.D., summa cum laude, from the Regent University School of Law and a B.A., magna cum laude, from the University of Florida.



Border Wall Needs Private Property. But Some Texans Won’t Give Up Their Land Without a Fight.

Government lawyers have taken the first step in trying to seize private property using the power of eminent domain to build a border wall — a contentious step that could put a lengthy legal wrinkle into President Trump’s plans to build hundreds of miles of wall, reports The Washington Post.

Previous eminent domain attempts along the Texas border have led to more than a decade of court battles, some of which date to George W. Bush’s administration and have yet to be resolved, according to the Post‘s Katie Zezima and Mark Berman. Many landowners are vowing to fight anew.

The reporters quoted Gerald S. Dickinson, an assistant professor of law at the University of Pittsburgh, who said this newest fight will be different because the earlier effort mostly included federal government land.

“If it’s going to be a contiguous wall across the entire southwest border, you’re talking about a massive land seizure of private property,” he said.

Read the Post article.



A Quick ‘Yes’ Can Create a Binding Contract, Even If There Has Not Been Agreement on All Terms

Email marketingEven an informal email can constitute acceptance of a contractual offer, warns The In-House Advisor.

“Moreover, just a few months ago, Judge Timothy Hillman took this principle one step further by ruling, in Witt v. American Airlines, that an exchange of emails can form a binding settlement agreement, even if the parties have not agreed to all of the terms of that settlement,” explains author Shepard Davidson, a Burns Levinson partner.

The judge found that both sides had agreed to a settlement in an email exchange. When the plaintiff later tried to reopen discussions, American Airlines filed a motion to enforce settlement agreement. The court allowed the motion.

Read the article.



Kavanaugh’s First Opinion Rejects Vague Exception Limiting Enforcement of Arbitration Agreements

Many of the recent U.S. Supreme Court rulings on arbitration agreements cases have been decided by narrow 5-4 majorities, which has raised the possibility that the replacement of Justice Anthony Kennedy by Brett Kavanaugh might lead to some softening of the court’s position in those cases.

But as Ronald Mann, writing in the SCOTUSblog points out, the latest such ruling will shed no light on that broader question, because even the justices more skeptical about arbitration saw no merit in the arguments against arbitration here.

Kavanaugh wrote the opinion for the unanimous court. In this case anyway, none of the justices saw any merit in a process calling for collateral litigation over the gateway question of arbitrability.

“At bottom, the question is whether a court or an arbitrator decides whether an arbitration agreement governs a particular dispute,” writes Mann.

Read the article.



Judge Rebukes DOJ, Says U.S. ‘Laughable’ for Using Shutdown to Delay Suit

A U.S. judge overseeing a veteran’s multimillion-dollar negligence lawsuit in Puerto Rico rebuked the Justice Department for attempting to use the partial government shutdown to put the case on hold, calling the request “laughable,” according to a Bloomberg Law report.

Bloomberg’s Erik Larson writes: “In a ruling denying the government’s bid for more time, U.S. District Judge William G. Young said lapses in federal appropriations, like the current one triggered by President Donald Trump’s demand for funding for a border wall with Mexico, aren’t a government ‘policy’ that could theoretically justify staying such a lawsuit.”

The judge decried “an abdication by the president and the Congress” of the duty to govern responsibly.

Read the Bloomberg Law report.




Why Johnson & Johnson May Not Have to Pay Its $4.7 Billion Court Verdict

While a $4.7 billion jury verdict in a talc case against Johnson & Johnson in July was eye-popping — the sixth-largest ever in a product-defect case — J&J may pay far less, or nothing, reports Bloomberg. No verdict of that size has survived appeal.

“Indeed, of the 25 largest U.S. jury awards, 23 were reversed, drastically cut or against defendants with few or no assets who couldn’t pay, according to data compiled by Bloomberg. The remaining two, including the one against J&J, are being appealed. Most such revisions are by judges overruling angry jurors or enforcing court-imposed limits on punitive damages,” writes Bloomberg’s Margaret Cronin Fisk.

But even if the award is cut or reversed, a large verdict can draw other cases.

Read the Bloomberg article.



Syngenta MDL Judge Tears Up Lawyers’ Contingency Contracts in $500 Million Fee Ruling

Reuters reports that U.S. District Judge John Lungstrum of Kansas City has set aside individual contingency fee contracts that some plaintiffs’ lawyers had in place for clients in a multidistrict litigation.

The ruling rejected the claims of Watts Guerra, a Texas firm that had signed up tens of thousands of farmers to bring individual cases in state court, accusing the agricultural giant Syngenta of peddling genetically modified seeds that produced corn China refused to import. The case led to a $1.5 billion global settlement for the U.S. farmers, according to Reuters’ Alison Frankel.

“This court has the authority and duty to determine the amount of reasonable fees paid to attorneys from the settlement fund, and because any further contingent fee payments would necessarily come from proceeds from the settlement fund, the court can and does prohibit any such additional payments,” Lungstrum wrote in the opinion.

Read the Reuters article.



Lawyer Who ‘Won’t Take No for an Answer’ is Suspended for Two Years

Former Pennsylvania state Rep. Tom Gannon has been suspended from practicing law in the state for two years due to multiple rules violations incurred while representing a client in a condominium association action, reports the Delaware County Daily Times.

Friday’s state Supreme Court order indicates Gannon persisted in filing a total 46 appeals in the state court system in a small civil dispute for a client, despite multiple denials, admonitions from the court, and even disqualification orders that should have removed him from the case entirely.

“Nevertheless, (Gannon) continued his pattern and practice of frivolous filings and appeals on behalf of Mr. King, despite the fact that doing so was in contravention of court orders,” according to the order.

Read the Daily Times article.



Parties Must Proceed to Arbitration Despite Unavailability of Arbitration Forum Specifically Named in the Contract

An Ohio appellate court has addressed an issue that arose when an arbitrator specified in a contract is no longer available.

Pepper Hamilton’s Constructlaw blog covers the case in which a homeowner sued a contractor, alleging unjust enrichment and fraud. The contractor moved to compel arbitration under the agreement arbitration provision. But the specified arbitrator, the Ohio Arbitration and Mediation Center, appeared to be defunct.

“Because it was still possible to arbitrate the issues, the Court determined the agreement was not unenforceable due to impossibility,” writes Ryan R. Deroo. “The Court explained that this conclusion was consistent with the intent of the parties as they agreed to arbitrate disputes, and a change in forum should not override the fundamental purpose of the arbitration provision.”

The appellate court directed the trial court to appoint another arbitrator.

Read the article.




Federal Courts Run Out of Cash Next Friday. Here’s What Happens Then

Bloomberg Law reports that companies that turn to the federal courts to resolve fights with rivals and customers may find themselves in limbo if the government shutdown continues beyond next week.

The system can spend money left over from fees and other sources to run through Jan. 11, writes Bloomberg’s Erik Larson.

“After that, nonessential workers at the 94 federal district courts, and at higher courts across the country, may have to stay home even as skeleton crews show up—without pay—to handle matters deemed essential under U.S. law, including many criminal cases,” Larson explains.

Individual courts and judges then will decide how to fulfill those critical functions.

Read the Bloomberg Law article.



In 8-Month Tenure, Non-Elected NY AG Was Leading Trump Antagonist

Barbara Underwood was an apolitical force in New York, quietly serving as solicitor general before getting an unexpected promotion to become the state’s first female attorney general, writes the Associated Press.

In her eight months in the AG’s role, she sued to put President Donald Trump’s charitable foundation out of business, accusing him of running it as a wing of his private businesses and political campaign. She also used the courts to challenge his administration on a multitude of policy fronts, including opposing its push to add a citizenship question to the 2020 census.

Underwood was appointed attorney general by the state legislature in May after the surprise resignation of Eric Schneiderman, explains AP’s Michael R. Sisak.

Now she’s going back to the solicitor general’s office, but Trump still faces challenges from New York, from the new AG, Letitia James.

Read the AP article.



Davis Wright Tremaine Leads Legal Team for BuzzFeed in Trump Dossier Defamation Case

A team from Davis Wright Tremaine successfully prevailed in a defamation suit against BuzzFeed brought by Russian businessman Aleksej Gubarev, the firm announced in a release.

On Dec. 19, U.S. District Judge Ursula Ungaro in the Southern District of Florida granted the legal team’s request for summary judgment, finding that the dossier at the heart of the case met the criteria under the fair report privilege, thereby ending the case.

“We are extremely pleased that Judge Ungaro affirmed our client’s First Amendment rights in this matter. Fighting against restraints on reporting and maintaining public confidence in the constitutionally-mandated right to a free and unfettered press is vitally important, perhaps more so now than ever,” said lead counsel Katherine Bolger.

The case is Gubarev et al. v. BuzzFeed Inc. et al. The Davis Wright Tremaine team was led by partners Katherine M. Bolger and Nathan Siegel and included associates Adam Lazier and Alison Schary.



Legal Technology & Innovation Middle East 2019

The Legal Technology & Innovation Middle East 2019 conference will be in Dubai, United Arab Emirates, on Feb. 18, 2019.

The objective of the event is to raise awareness about the possible applications on advanced technologies in legal practice. This is a one-day conference, bringing together a community of legal professionals and digital visionaries in order to discuss and develop the legal industry of the future. This will be a first of its kind gathering in the region, where software developers, the digital revolution’s driving forces, and legal practitioners, meet for the first time.

The conference acts as a medium for the promotion of knowledge and the potential application of technology and software supported solutions for Middle East’s legal industry, according to conference organizers.

Get details about the conference.



Jordan, Lynch & Cancienne Wins Take-Nothing Decisions in Texas, Louisiana

Trial lawyers with Jordan, Lynch & Cancienne PLLC scored big defense wins recently for two separate clients, securing a quick summary judgment for The Dow Chemical Company in Texas and prevailing in a jury trial for Union Carbide Corporation in New Orleans.

In the Texas case, MMR Constructors Inc. tried to claim an additional $17 million from Dow after it had already paid MMR for work on its plant in Freeport, Texas. That case ended with a summary judgment for the defense.

And in the New Orleans case, jurors heard three weeks of testimony related to the death of an oil field worker who died of mesothelioma. The jury found Union Carbide and Montello were not responsible.

Read details of the cases.