Nothing is more basic to private equity deal making than shielding the private equity firm and its funds from liability for the obligations of the fund’s affiliated acquisition vehicles and portfolio companies; and this certainly includes liabilities for breach of an NDA, points out Glenn D. West in the Weil, Gotshal & Manges Global Private Equity Watch blog.

The article discusses a case that distinguishes between affiliates entitled by the non-disclosure agreement that are entitled to receive confidential information and affiliates actually bound by the agreement.

Read the article.

A Mississippi federal court denied a defendant’s motion for partial summary judgment in connection with a limitation-of-liability clause, according to a post on the Constructlaw blog of Pepper Hamilton.

Anthony Finzio writes that the Court also denied the defendant’s motion for reconsideration, concluding that the defendant had not carried its burden as the movant of demonstrating that the limitation-of-liability clause limited the plaintiff’s rights as a matter of law.

The case is DAK Americas Mississippi, Inc. v. Jedson Engineering, Inc. et al.

Read the article.

 The Dallas Morning News  reports that American Airlines is demanding that the mechanics’ unions pay for hundreds of flight delays and cancellations over the last two months.

“In a new court filing Tuesday, the Fort Worth-based carrier said it wants sanctions ‘sufficient to compensate American for losses caused’ from violations to a June 14 restraining order telling mechanics to cease work slowdowns to punish the company,” writes the News‘ Kyle Arnold.

U.S. District Judge John McBryde found that union maintenance workers conspired to slow down work by refusing overtime, taking more time on jobs and refusing off-site assignments. The unions have denied they slowed down work.

Read the  Morning News article.

As they reach an age when other esteemed elder statesmen of the bar might be basking in acclaim for their life’s work, 78-year-old David Boies and 80-year-old Alan Dershowitz are brutally yoked in a subplot of the Jeffrey Epstein sex trafficking case, reports The Washington Post.

Boies and his partners at Boies Schiller Flexner represent one of Epstein’s accusers. That client has alleged that Epstein lent her for sex to his friends, including Dershowitz, according to the Post‘s article.

The accuser and her lawyers portray Dershowitz, who has never been charged with a sex crime, as a liar and a sneak who secretly recorded a call with a fellow lawyer, write the Post‘s Tom Jackman, Deanna Paul and Manguel Roig-Franzia.

Dershowitz has painted Boies as a corrupt attorney with a long trail of ethical lapses, a cheat and the head of a criminal enterprise.

Read the Post article.

Kraemer Manes & Associates has settled a lawsuit claiming that a client got bad legal advice after she was tricked into hiring the Pennsylvania law firm because of fake online reviews, reports the  ABA Journal.

The Journal‘s Debra Cassens Weiss explains:

“The lawsuit claimed that Kraemer Manes had ‘orchestrated a scheme of soliciting positive online reviews’ from people who had never used the law firm’s services. Nonlawyer employees were encouraged to solicit friends and family to write the reviews and given time off for each positive review they secured, the suit alleged.”

Read the ABA Journal article.

The U.S. firearms industry is facing a different kind of existential threat: liability to shooting victims, surmises Alison Frankel of Reuters.

She based that statement on the evidence of a petition filed Friday by Remington Arms, maker of the Bushmaster version of the AR-15 rifle that was used to kill 20 small children in Sandy Hook.

“Remington’s lawyers at Baker Botts asked the Supreme Court to grant review of a 2019 ruling in which the Connecticut Supreme Court held that Sandy Hook victims’ families can move forward with a suit attempting to hold Remington responsible for marketing and promoting a military-style weapon to civilians bent on executing campaigns of violence,” she writes.

“If the Supreme Court doesn’t step in, Remington said, firearms makers will face “a flood of lawsuits nationwide” that will subject them to “crippling litigation burdens.”

Read the Reuters article.

Three court cases reveal the importance of ensuring that contracts for an enterprise resource planning software system and other digital transformations be carefully negotiated, writes Marcus Harris in Taft’s Technology Insights blog.

It’s important to remove the possibility that a lawsuit over a failure can be blocked by seemingly harmless clauses that vendors and integrators insert as a matter of routine in their template agreements, he explains.

“Never sign the vendor’s or integrator’s template contract without negotiating and redrafting key provisions – even the boilerplate ones,” Harris advises. “Failing to do so may restrict your ability to sue for damages in the event of a failure.”

Read the article.

Six years of litigation fizzled out in July when one of the plaintiffs dropped a bombshell at a breakfast meeting with opposing counsel, effectively ending a $30 million federal lawsuit filed against a Saudi businessman over a California wildfire.

The Los Angeles Times tells the story of the now-dismissed case over the fire than burned more thann 25,000 acres. The government originally contended that an electrical junction box on Tarek Al-Shawaf’s property had malfunctioned, sparked and started the Mountain fire.

Recently, one of the private plaintiffs mentioned to Al-Shawaf’s lawyer that his own investigation turned up the fact that the fire probably started hundreds of feet from the Saudi’s property, writes the Times‘ Joseph Serna.

“To be honest, at the time I didn’t realize it was this crucial,” plaintiff Lawrence Goda said in hindsight. “I figured the feds … would have definitely factored that into the case.”

Read the Lost Angeles Times article.

Reuters’ Alison Frankel tells the story of the split between the partners of a personal injury juggernaut and how their feud turned into an unusual and creative use of a derivative suit.

Cellino & Barnes used ubiquitous advertising on television, radio and billboards in New York to generate more than $10 million in profits each year since 2015 for its only two shareholders, Ross Cellino and Stephen Barnes.

Their split and the subsequent fight have resulted in a derivative suit that has provoked apparently novel questions about the intersection of shareholder derivative litigation and the dissolution of a privately-held corporation, Frankel writes.

Read the Reuters article.

Exterro has published the second edition of its Comprehensive Guide to E-Discovery Preservation, containing tips, best practices and case law reviews.

The guide may be downloaded from Exterro’s site at no charge.

“The preservation process may just be the most important stage of the e-discovery process, as it is the foundation of everything that follows,” the company says on its website. “There can be no collection, review, or production of relevant information if your organization failed to preserve it in the first place. But unlike the other stages of e-discovery, there isn’t a clearly indicated starting point—just an obligation to preserve once there is ‘a reasonable anticipation of litigation.’”

The guide covers:

• Practical definitions and best practices for preserving electronically stored information (ESI)
• Baseline requirements for the legal hold process
• Preservation challenges and ways to overcome them

Download the guide.

Texas businessman Mas Duncan lost the nearly $6 million that he invested in a docket of claims against BP after the Deepwater Horizon spill. The money, as Reuters’ Alison Frankel explains, evaporated into an allegedly fraudulent scheme to manufacture tens of thousands of plaintiffs.

“Then when Duncan and his litigation finance company, Duncan Litigation Investments, tried to recoup the lost millions by suing the plaintiffs’ firms that allegedly benefited from his investment, he ran into timeliness problems,” according to the Reuters report.

Now DLI has filed a complaint blaming Duncan’s own former lawyers at Baker Donelson Bearman Caldwell & Berkowitz for failing to procure a tolling agreement that would have extended the statute of limitations on Duncan’s claims against the plaintiffs’ firm.

Read the Reuters article.

On the heels of the Supreme Court’s recent pro-arbitration pronouncements, the U.S. Court of Appeals for the Eighth Circuit issued a reminder that, although agreements to arbitrate are favored under the law, arbitration agreements must still be contracts, writes Susan Fitzke for Littler Mendelson.

“In order to enforce an agreement to arbitrate, therefore, the employer must prove that a valid contract to arbitrate was created,” she explains. “This may seem self-evident, but in an era where some arbitration programs are contained only in employee handbooks or on-line, this is a point worth closer review.”

Read the article.

The ABA Journal reports that two former mobile home owners have filed a malpractice suit against Jones Day that claims that the law firm’s work on their eviction case was a “fiasco.”

Two California residents allege that Jones Day pressured them to accept a “burdensome settlement” without asserting legitimate defenses and then dropped them as clients a few weeks after the deal was signed, writes the Journal‘s Debra Cassens Weiss. The two say they couldn’t navigate the deal themselves, and they became “permanently homeless” after being evicted.

Read the ABA Journal article.

If a contract is too one-sided, it can be ruled illusory and unenforceable, warns Shepard Davidson in the Burns Levinson In-House Advisor blog.

That is exactly what happened to the defendant in McNamara v. S.I. Logistics, Inc. when it tried to enforce its contractual right to arbitration he writes.

In that case, the defendant sought to compel arbitration based on an agreement that  purported to grant the company the unilateral right to modify its terms without any prior notice to McNamara, a former affiliate.

The court found in favor of McNamara, finding that the agreement was illusory.

Read the article.

The American Bar Association has issued a finding stating that Justin Walker, President Trump’s nominee for the federal bench in Kentucky, is unqualified because of his lack of experience, reports the Louisville Courier Journal.

The ABA’s Standing Committee on the Federal Judiciary says Walker “does not presently have the requisite trial or litigation experience or its equivalent.”

Walker, 37, is a conservative intellectual who clerked for Brett Kavanaugh when he sat on the U.S. District Court of Appeals, according to the Courier Journal‘s Andrew Wolfson. He has practiced at Dinsmore Shohl in Louisville since January and is co-director of University of Louisville’s new Ordered Liberty Program.

Read the  Courier Journal article.

Image by Mitch Barrie

Gun manufacturer Remington Arms asked the U.S. Supreme Court on Thursday to overturn a ruling from Connecticut’s high court allowing the company to be sued by one survivor and the families of nine victims killed in the 2012 massacre at Sandy Hook Elementary School, reports Courthouse News Service.

The North Carolina-based company argued in a petition for a writ of certiorari that the 2005 federal Protection of Lawful Commerce in Arms Act shields firearm makers from liability in every circumstance when their products are used in acts of violence, reports Courthouse News’ Christine Stuart.

The Connecticut Supreme Court in May refused to strike arguments regarding the marketing of the XM15-E2S weapon, a type of AR-15 semiautomatic gun that killed 20 first graders and six educators in 264 seconds.

Read the Courthouse News article.

Lawyers with Houston-based Heard Law Firm achieved a settlement for an offshore pipeline technician who was blown into the air, suffering back injuries and burns in an explosion on an oil and gas production platform in the Gulf of Mexico.

Donald Champion, who lives near Lake Charles, Louisiana, was working on the Garden Banks Gas Pipeline owned by Enbridge Offshore LLC more than 100 miles south of New Orleans. In November 2017, an explosion caused by equipment failure knocked him through the air into a stack of pipe, injuring his back and leaving him with serious burns to his face, arms and hands.

In addition to the treatment for his burns, Champion underwent back surgery and may require more operations in the future.

See details and a video.

Michael Mulvania has joined Richards Carrington as of counsel in the firm’s Denver office.

Mulvania focuses on complex commercial and general business litigation at the trial level. He represents clients in diverse industries and areas of practice, including commercial, oil and gas, trade secrets, class actions, securities, antitrust, products liability, and environmental litigation.

Prior to joining Richards Carrington, LLC, he practiced in Denver at litigation boutique Wheeler, Trigg, O’Donnell LLP, and in Washington, D.C. at litigation boutique Kellogg, Huber, Hansen, Todd, Evans & Figel P.L.L.C.

See more details.

The first Texas trial addressing the role of pharmaceutical manufacturers, distributors and physicians in creating and fueling the state’s opioid crisis has been scheduled for Dallas County next year.

Judge Robert Schaffer, who will preside over Texas’ opioid multidistrict litigation (MDL), announced the initial county cases will include Dallas, Angelina, Freestone and Kendall counties. The first, Dallas County, will be heard in the fall of 2020. Dallas County is represented in its opioid-related case by the law firms of Simon Greenstone Panatier, P.C., The Lanier Firm and The Cochran Firm.

“The public nuisance these drug companies have created is of epidemic proportions, destroying countless lives and families, and costing Dallas County taxpayers far too much. There must be a reckoning, and through this case, there soon will be,” said Jeffrey Simon of Simon Greenstone Panatier, P.C.

The Dallas County MDL seeks to hold several prescription opioid manufacturers, wholesale distributors and certain doctors responsible for their role in the opioid painkiller epidemic.

“Recently uncovered records reveal that more than 461 million prescription pain pills were supplied to Dallas County residents from 2006 to 2012. That’s enough for every man, woman and child in Dallas County to consume 28 narcotic pills a year,” said Simon.

A release from the firm states:

Once tightly regulated, the pharmaceutical industry made a dedicated push to encourage doctors to expand the prescription of the powerful painkillers beginning in the late 1990s, promoting claims that opioids were a safe, non-addictive means to treat even moderate chronic pain on a long-term basis. The resulting epidemic caused significant increases in addiction and overdose deaths, skyrocketing health care costs and demands on community services, such as courts, child services, treatment centers, emergency response and public safety.

“Records also show that as the opioid epidemic grew worse, defendants supplied more of them,” said Simon. “They profited by flooding Dallas County with narcotic pills that were manufactured from the same base molecule – morphine – as heroin, but these pills were often sold in doses more powerful than heroin.”

Two recent court decisions dealing with mandatory arbitration agreements highlight why some manufacturers may gain by requiring pre-dispute employment arbitration agreements, writes Matthew Miklave for the Robinson+Cole Manufacturing Law Blog.

He discusses two federal court rulings favoring individual arbitration over litigation.

In one of the cases, the Second Circuit Court of Appeals reversed a lower court and found that a union labor contract which contained a clause requiring the arbitration of all disputes between the union represented employees and the employer prevented an employee from bringing an individual claim in federal court.

Read the article.