Parties to maritime contracts frequently include requirements that one or the other party or both of them will use their “best efforts” to perform duties described in the contract, but sometimes it’s unclear what the phrase “best efforts” actually means to them and what a court will say it means should a dispute arise.

Robert Stefani of King, Krebs & Jurgens, PLLC has written a paper describing the practice and discussing two approaches that are evident in the relevant case law. JD Supra Business Advisor posted the article.

He writes that including “best efforts” provisions in a maritime contract can be a good practice, but only if the contract includes guidelines as to what constitutes the party’s “best efforts.”

Read the article.

Parties to a contract may agree in advance to an amount of money to be paid as damages in the event of a breach – a remedy known as “liquidated damages.”

A paper prepared by Shumaker, Loop & Kendrick and posted on Lexology, discusses the subject in light of some recent litigation involving college coaches and the schools that contracted with them.

“Some coaches succeed in negotiating exclusions to a liquidated damages provision that allow an upward career move (e.g., a coordinator to head coach) or to accept a ‘dream job.’ But even such carve-outs do not necessarily come without controversy,” the Shumaker, Loop authors write.

Read the article.

A posting by by Mike Reilly on the Lane Powell website considers the question: When does the court apply “equitable tolling” to extend the time by which a claimant may file suit beyond the contractual limitations provision?

The article discusses the case of Wilson v. Standard Insurance Company, 2015 WL 3477864 (11th Cir. June 3, 2015)(Equitable tolling rejected even though claim denial letter failed to state date by which civil claim must be brought.)

The 11th U.S. Circuit Court of Appeals found that equitable tolling does not trump the contractual limitations provision.

Read the article.

A Texas federal judge handed down a $663 million judgment Tuesday against Trinity Industries, the guardrail maker accused of producing a faulty product that can jam and spear through vehicles, reports The New York Times.

The ruling in the court of Judge Rodney Gilstrap of United States District Court is the latest stage of a whistle-blower case filed by Josh Harman, a competitor. Harman said he discovered in 2011 that Trinity had made a critical change to the dimensions of its ET-Plus guardrail in 2005, but failed to tell federal regulators as required by law.

“The jury found the company liable for defrauding the Federal Highway Administration and awarded $175 million, which, under the False Claims Act, was tripled to $525 million.” The Times reports. Added-0n penalties brought the judgment up to $663 million.

Read the story.

The Oklahoma Supreme Court found that “Terms of Sale,” hidden on a website and not clearly referenced by the sales agreement, were not adequately incorporated, they were not a proper part of the contract, according to a report by McAfee & Taft and posted on JDSupra.

The report says the court, in Walker v. Builddirect. comTechnologies, Inc., provided guidance on how to properly incorporate extrinsic documents. With this new case in hand, businesses should consult with counsel and make sure their agreements pass muster.

“Counsel can assist with ensuring any extrinsic documents are sufficiently identified and easy to find,” the report says.

Read the report.

A Delaware jury has determined that Boston Scientific Corp. must pay $100 million to a Delaware woman who blamed the company’s vaginal-mesh inserts for leaving her in constant pain, reports Bloomberg.

This case is the first verdict after the company agreed to begin settling cases over the devices, and the biggest yet.

Boston Scientific’s Pinnacle and Advantage Fit inserts, built to buttress sagging organs and treat incontinence in women, were defectively designed and company executives hid the flaws from Deborah Barba, the jury found.

Bloomberg says the 51-year-old former bank teller contends the inserts eroded once they were implanted, leaving her with a scarred vagina and a host of medical problems.

Read the story.

Attorneys from Dallas-based Simon Greenstone Panatier Bartlett, PC, a nationally recognized trial law firm, won two of the largest verdicts in Texas last year, according to the publishers of VerdictSearch. The firm’s wins will be highlighted in Top Texas Verdicts & Settlements of 2014, which will be inserted in the May 25 edition of Texas Lawyer.

The firm scored the state’s largest toxic tort verdict in Vicki Lynn Rogers, et al. v. The Goodyear Tire & Rubber Company. Dallas County jurors awarded $18.6 million to the family of a tire builder who died after exposure to asbestos fibers at a Goodyear Tire & Rubber Co. plant in Tyler, Texas. The verdict was No. 22 overall in Texas last year.

In Bobbie Bush v. Greenwood Motor Lines Inc., et al., another Dallas County jury awarded $4.1 million to Bobbie Bush for her injuries from a collision with a double tractor-trailer owned by Greenwood Motor Lines. The award was the state’s ninth largest motor vehicle verdict and ranked No. 44 overall.

Read more details.

In recognition of the firm’s trial successes in 2014, Ahmad, Zavitsanos, Anaipakos, Alavi & Mensing P.C., or AZA, has earned selection as a Litigation Department of the Year for 2015  by the publishers of Texas Lawyer newspaper.

The annual honor recognizes the Texas-based litigation groups that have excelled during the previous year based on courtroom results. Just three general litigation firms are chosen statewide for having the top litigation departments.  AZA claimed the top spot among all Texas firms in their size category. The firm is featured in a June 1 profile story in Texas Lawyer titled, “Ahmad, Zavitsanos, Anaipakos, Alavi & Mensing More Than a ‘Tough Name’” (subscription required).

Read the story.

Carl Berkowitz, PE, Ph.D., AICP, a transportation and traffic engineering expert has posted the first part of an examination of a broad range of safety issues involving rail activity.

Topics in the paper include safe passenger boarding, pathways for passengers, stairs, handrails, ramps, elevators, escalators, crowding, platform-to-rail-car gap, passengers on the tracks, premature door closing, accidents between the train and platform, in-vehicle falls, jerk rate, operators and safety, applied attention, attention control, stopping distance, speed-distance relationship, emergency braking, derailments, crossing accidents, pedestrians on tracks, and more.

Berkowitz has served as a litigation consultant since 1997.

Read the white paper.

The Texas Supreme Court has ruled that life settlements sold by Life Partners Inc. are securities under state law, breathing new life into lawsuits brought by the Texas State Securities Board and a putative class of investors, reports law360.com.

“In the Texas cases brought by the state securities regulator and a group of investors, Life Partners had won trial court dismissals. But appeals courts in Austin and Dallas revived the claims after finding the life settlements were investment contracts, not insurance contracts, making them securities under state law.” the report says.

Keith Langston of Langston Law Firm, based in Longview, Texas, represents the investors.

Read the opinion.

Read the story.

The top Texas premises liability verdict during the past 10 years is the record $27 million jury award won by the Dallas law firm Standly Hamilton, LLP, against fast food giant McDonald’s, according to the publishers ofVerdictSearch, the firm reported in a release.

Attorney Chris Hamilton of Standly Hamilton represented the families of Denton James Ward, 18, and Lauren Bailey Crisp, 19, in their claims that lax security contributed to the two teenagers’ deaths, the firm said in the release. Ward died after being severely beaten by a large group of people who had gathered in the McDonald’s parking lot in College Station during the early morning hours of Feb. 18, 2012. Crisp died shortly afterward in a car wreck while a friend attempted to rush her and Ward to the hospital.

“The jurors’ award in this case is in line with what they saw in McDonald’s complete lack of respect for customer safety,” Hamilton said. “While it is professionally gratifying to know that a verdict our firm won is ranked among the largest in Texas, the fact is that no amount of money will ever be able to reunite the victims and their families.”

Read the story.

The First U.S. Circuit Court of Appeals has ruled in First State Ins. Co. v. National Casualty Co., a case involving reinsurance and retrocessional agreements, that the agreements between the parties contained an honorable engagement provision, which directs the arbitrators to consider each agreement as an honorable engagement, not merely a legal one.

A post by Baker & McKenzie and posted on Lexology discusses the case in detail.

The court hadn’t considered such a clause before, but the clause empowers arbitrators to grant forms of relief not explicitly mentioned in the underlying agreement. “Thus, because the arbitrators were authorized to grant equitable remedies, and because the reservation of rights procedure in the award was such a remedy, there was no basis to vacate the award,” the post explains.

Read the article.

In an article published on Butler Snow’s website, Lauren Patton describes a contract situation in which an executive has signed a contract “on behalf of” the company, but did not sign the contract individually. During the course of the matter, the third party brings claims in court against the executive in his individual capacity, and the executive wants to force those claims to arbitration.

She discusses whether the fact that the executive did not sign the contract containing the arbitration provision in his individual capacity is fatal to enforcement of the provision.

She cites prior cases and common law in her discussion.

Read the white paper.

A federal court has upheld a jury’s nearly $500-million award to medical device firm Masimo Corp. in a win in a long-running patent dispute, reports The Los Angeles Times.

In 2009, Masimo sued Philips Electronics North American Corp. and Philips Medizin Systeme Boblingen, both subsidiaries of Royal Philips, alleging they infringed patents for non-invasive technology that monitors oxygen in patients’ blood.

A federal judge in Delaware upheld the award and denied Philips’ request for a new trial.

Knobbe Martens Olson & Bear LLP represents Masimo. In a release, the firm said the infringement case between Masimo and Philips remains ongoing, with more trials anticipated regarding other patents Masimo contends Philips has infringed.

Read the story.

MasterCard Inc. has reported that the proposed $19 million settlement with Target Corp. over  the retailer’s 2013 data breach fell through because not enough banks accepted the deal, Reuters reports.

The agreement, announced in April, would have provided up to $19 million to banks and credit unions that sued Target in federal court in Minnesota over the breach.

The banks had argued that the settlement with MasterCard, which was not a party to the lawsuit, was an attempt to undercut their claims for damages.

But a federal judge earlier this month rejected the banks’ attempt to block the deal, though he expressed concerns about its fairness. Reuters reports.

Read the story.

A Delaware judge on May 20 approved a $275 million shareholder settlement involving videogame maker Activision Blizzard Inc. and awarded the small law firms that brought the case a $72.5 million fee, Reuters reports.

The company, which develops the “Call of Duty” game, agreed to the settlement last year, which ended a shareholder lawsuit challenging Activision’s $8 billion deal to acquire its stock held by French conglomerate Vivendi SA. The lawsuit alleged that Activision’s chief executive and co-chairman benefited unfairly from the deal, and the settlement barred them from gaining control of Activision, Reuters reports.

Four-attorney firm of Friedlander & Gorris of Wilmington, Delaware and six-lawyer firm Bragar Eagel & Squire of New York led the plaintiffs’ case.

The fee award for the small law firms works out to $9,500 an hour, according to court records.

Read the report.

A judge has approved a $200 million settlement for victims of a deadly fungal meningitis outbreak in 2012, reports Michigan Radio.

A Massachusetts pharmacy called the New England Compounding Center was accused of making massive amounts of back pain shots in a dirty lab, according to the report.

The drugs were then shipped all over the country, allegedly sickening almost 1,000 people and killing 64.

Southfield, Mich., attorney Marc Lipton worked on the settlement.

Read the report.

Transocean Ltd. has agreed to a nearly $212 million settlement with Gulf Coast individuals and business owners over the 2010 Gulf of Mexico oil spill, plaintiff’s lawyers said May 20, according to a report in TheTimes-Picayune.

Transocean owned the Deepwater Horizon drilling rig, which sank after the April 20, 2010 blowout at BP’s Macondo well. The disaster killed 11 workers and set off the worst offshore oil spill in U.S. history.

The newspaper quoted co-lead plaintiffs’ attorneys Stephen J. Herman and James P. Roy as saying, “We applaud Transocean for adding to the settlement funds established in the Halliburton settlement to help compensate people and businesses for their losses.”

Read the report.

In view of the importance of contract analysis for determining joint infringement, practitioners would do well to obtain contracts early in discovery to determine the strength of their positions, and practitioners drafting contracts should be mindful of potential joint infringement implications, reports Foley & Lardner LLP in a new white paper.

Justin M. Sobaje writes that the recent decision by the Federal Circuit in Akamai v. Limelight on remand that predictions attention would shift to contract analysis for determining direct, rather than induced, infringement in these multi-actor method situations, known as joint or divided infringement.

“Given the increased scrutiny of contract terms for determining instances of joint patent infringement, practitioners providing advice in the drafting of contracts should be aware of the potential issues and provide guidance aimed at avoiding anticipated dangers,” the paper says.

Read the white paper.

An Ashland, Ky., hospital has agreed to pay $40.9 million to the federal government to settle claims that it made millions of dollars by falsely billing Medicaid and Medicare for unnecessary heart procedures, reports The Courier-Journal of Louisville.

The government’s lawsuit claimed King’s Daughters Medical Center “knew, deliberately ignored or recklessly disregarded the fact” that its cardiologists were inserting stents and performing catheritzations on patients who didn’t need them.

According to the paper’s report, “Hans Poppe, who represents the patients in the private suits against King’s Daughters — as well as most of about 400 who have sued the London hospital — said the settlement may be the largest ever in the U.S. involving unnecessary heart procedures. He said it bolsters the credibility of the claims made by his clients against King’s Daughters.”

Read the story.