The outrage following last week’s revelation that Silicon Valley billionaire Peter Thiel had funded Hulk Hogan’s lawsuit against Gawker Media LLC wasn’t just about a rich guy throwing his money around; it was about a rich guy secretly throwing his money around, writes Joshua Brustein for Bloomberg Technology.

The information about Thiel’s financial involvement was kept from the jurors in the case.

“It turns out that the jurors wouldn’t have cared, anyway,” Brustein writes. “At least, that is what two of them said when asked about Thiel’s involvement. In a conflict involving an aggrieved professional wrestler and a snarky gossip website, a plot twist involving a shadowy technology billionaire didn’t seem that shocking.”

Read the article.

Zapproved has published its updated Preservation Case Law Summaries 2008-2016, the definitive guide to preservation case law with summaries tagged by venue, sanction and topic.

The guide can be downloaded from Zapproved’s website.

Zapproved says courts are analyzing preservation cases for spoliation with a high bar to determine if awarding sanctions is appropriate. The standards set forth in proposed changes to Rule 37(e) require that in order to impose an adverse inference, spoliation must have (i) caused substantial prejudice in the litigation and the result of  willfulness or bad faith; or (ii) irreparably deprived a party of any meaningful opportunity to present or defend against the claims in the litigation.

The new version contains these most recent preservation cases:

• Noble Roman’s, Inc. v. Hattenhauer Distrib. Co.
• Living Color Enters. v. New Era Aquaculture, Ltd.
• First Fin. Sec., Inc. v. Lee
• Brown Jordan Int’l, Inc. v. Carmiclet
• In re Takata Airbag Prods. Liab. Litig.
• Best Payphones, Inc. v. The City of New York

Download the guide.

Takata Corp. has confirmed it has hired investment bank Lazard Ltd. to lead a financial restructuring in an effort to resolve costs stemming from its recall of tens of millions of faulty air bags linked to at least 13 deaths and more than 100 injuries worldwide, Reuters is reporting.

“Takata’s board of directors in February named an outside steering committee to develop a comprehensive restructuring plan to address the financial and operational issues related to its recall of the defective inflators,” swrites David Shepardson. “Takata’s outside committee said it retained Lazard as it is ‘expeditiously seeking new investment for Takata,’ the committee said in a statement.”

Takata posted a net loss of $120 million for the year ended in March and could potentially could face billions of dollars in costs related to the recall.

Read the article.

In an article posted on their firm’s website, Matthew T. Furton  and Julie L. Young, partners in Locke Lord, discuss some recent rulings on arbitration by the U.S. Supreme Court, particularly as they apply to insurance and reinsurance.

The questions and answers discuss why the court has taken on more cases involving arbitration, which arbitration cases are currently under consideration by the court, why it matters that the circuits are split as to whether to stay or dismiss an action after compelling arbitration, and what the current state of the “manifest disregard” standard is.

Read the article.

Videos of Hillary Clinton’s former aides and others giving depositions in a lawsuit related to her private email set-up will be kept secret, at least for now, a federal judge ruled Thursday, according to a report by Politico.

Josh Gerstein wrote that U.S. District Court Judge Emmet Sullivan granted a request from former Clinton Chief of Staff Cheryl Mills that the deposition recordings be kept from the public because of the potential they could be used for partisan purposes or perhaps used in attack ads against Clinton, the frontrunner for the Democratic presidential nomination.

“The public has a right to know details related to the creation, purpose and use of the clintonemail.com system. Thus, the transcripts of all depositions taken in this case will be publicly available. It is therefore unnecessary to also make the audiovisual recording of Ms. Mills’ deposition public,” the judge wrote.

Read the article.

When Beck Redden partner and appellate specialist Connie Pfeiffer led the charge to overturn a Fifth Circuit decision, the path to victory was nearly certain to be long and arduous, the firm said in a release.

The Fifth Circuit had just decided a critical question interpreting the Texas Constitution, holding that homeowners with constitutionally defective liens on their homestead must file suit to set the lien aside within four years of originating a home equity loan.  (See Priester v. JP Morgan Chase Bank, N.A., 708 F.3d 667, 674 (5th Cir. 2013).  Yet overturning Priester would prove challenging, because out-of-state lenders could usually remove Texas homeowner suits to federal court, where Priester was binding.

The release continues:

Beck Redden was first hired to handle a homeowner’s Fifth Circuit appeal immediately following Priester and to seek the Fifth Circuit’s certification of the Texas constitutional questions, even though the Fifth Circuit rarely certifies a question it has already decided.  The Fifth Circuit adhered to that policy, holding that it could not revisit Priester or seek the Texas Supreme Court’s guidance.  In the wake of Priester, nearly all homeowner suits were removed to federal court and promptly dismissed.

Beck Redden was then hired in one of the few cases remaining in state court.  It stepped in mid-way in an appeal before Houston’s Fourteenth Court of Appeals, but the court fell in step with the growing line of cases following Priester and dismissing homeowner claims as time-barred.

At last in the Texas Supreme Court, Beck Redden handled every aspect of the briefing, argument, and strategy.  Connie Pfeiffer authored the briefs and presented oral argument, working with her appellate partner Russell S. Post and trial lawyers Chip Lane and Anh Thu Dinh of The Lane Law Firm.

The Texas Supreme Court voted 6 to 3 to overturn the Fifth Circuit’s decision in Priester and five Texas appellate decisions reaching the same holdings (See Wood v. HSBC Bank USA, N.A. ___ S.W.3d ___ (Tex. May 20, 2016).   The Majority followed the Constitution’s plain text to hold “that liens securing constitutionally noncompliant home-equity loans are invalid until cured and thus not subject to any statute of limitations.”  The practical effect of the Supreme Court’s decision is that homeowners will not face foreclosure unless their lender has complied with the Texas Constitution to create a valid lien.  The decision upholds the Constitution’s careful protections for homeowners by ensuring that invalid liens do not become valid and enforceable merely with the passage of time.

The Associated Press is reporting that Volkswagen and attorneys for vehicle owners affected by the company’s emissions cheating scandal are on target to meet a June deadline for a final settlement proposal, a federal judge said Tuesday.

A federal judge in San Francisco said the parties have made substantial progress in reaching a deal for that could affect more than 480,000 owners of polluting Volkswagens in the U.S.

“Many questions remain unanswered, including how much money owners can expect in a buyback and how much additional compensation beyond repairs and buybacks they’ll receive,” according to the report.

Read the article.

Donald Trump’s list of people he would consider nominating to the Supreme Court includes judges who have indicated support for various conservative causes, range in age from 41 to 58 and hail primarily from conservative and Republican-governed states, reports Reuters. The eight men and three women all are white.

The list includes William Pryor, who as Alabama attorney general, urged the U.S. Supreme Court in 2003 to uphold a Texas law banning gay sex.

Another is Texas Supreme Court Justice Don Willett, who earlier in his career was part of Texas’ legal team that won a Supreme Court battle to display the Ten Commandments on a monument in the state Capitol.

Read the article.

A former Skadden Arps lawyer who cheated friends and relatives of life savings in a Ponzi scheme and then tried to kill himself was sentenced in New York to five years in prison Thursday, reports the Associated Press and the New York Post.

His crime was revealed when he wrote a long suicide note and jumped into the Hudson River in a 2014 suicide attempt that ended with his rescue by police divers.

A U.S. District Court judge gave Bennett a sentence at the high end of federal sentencing guidelines. She announced it after hearing several of the 58-year-old’s friends describe giving hundreds of thousands of dollars for a supposedly safe investment. Some of them told the judge he is a “pathological liar.”

Read the AP story and the Post story.

The lawyer who struck a $100 million deal with Uber Technologies Inc. is being accused of greed by some of the drivers covered by the accord who want her bumped, reports Bloomberg News.

“She has single-handedly stuck a knife in the back of every Uber driver in the country,” Hunter Shkolnik, a New York lawyer who’s pursuing his own cases against the ride-share service, said Friday in a phone interview with Bloomberg. “The entire class was thrown under the bus and backed over.”

Shkolnik asked the San Francisco federal judge who presides over the class-action settlement to remove Shannon Liss-Riordan as lead attorney. He says she sold out her clients by accepting a payout for California and Massachusetts drivers that’s less than 10 percent of the value of their claims “while she walks away with $25 million.”

Liss-Jordan labeled the claims as “uninformed,” “untrue and malicious.”

Read the article.

Image created by Meredith Atwater for opensource.com

It is possible to be mistaken about the existence or terms of an agreement and for that mistake to thereby prove that no contract exists, writes Glenn West in Weil, Gotshal & Manges LLP’s Global Private Equity Watch.

As a general rule, being mistaken about whether you contracted, or what you contracted for, does not mean that a contract does not exist based upon the terms of the written agreement you signed. A party’s protestations that he or she did not understand the agreement, or believed it said something other than what it said, or that the words used in the agreement meant something other than what they are determined by a court to mean, will generally not be entertained by a court,” he wrote.

He discusses the case of Patterson v. CitiMortgage, Inc., which illustrates that “a unilateral mistake made by a party that is not made manifest to the other party will not be a basis for reformation because, absent knowledge of the mistaken belief, the other party is entitled to rely on the written agreement as manifesting the intentions of the otherwise mistaken party.”

Read the article.

Contracts containing uniform terms and conditions are a common feature of modern commercial life, write James F. Bogan III and William D. Meyer of Kilpatrick Townsend & Stockton LLP.

“Consumers are oftentimes required to agree to such contracts in order to buy a good or service, and the contracts typically contain provisions that benefit the business/seller and limit the legal remedies available to the consumer/buyer. While the law generally favors freedom of contract and supports the enforceability of uniform terms and conditions, a recent case applying New Jersey law shows that a business could be exposed to liability – including as a class action defendant – for simply including certain types of limiting clauses in consumer contracts,” they explain.

In their article, they discuss the case of Johnson v. Wynn’s Extended Care, Inc., in which the 3rd Circuit Court of Appeals ruled that a consumer has a valid cause of action against a business where its service contract simply contains a provision waiving attorneys’ fees and splitting costs.

Read the article.

eTERA Consulting, a data and technology management company, will present a complimentary webinar focused on eDiscovery and social media on May 19, 2016 at 11 a.m. EDT with panel speakers Bruce Malter, Emily Acosta and Michael Dwyer.

More than 45 percent of corporations have used publicly available social media content in litigation and fraud investigations, according to a study conducted in 2015 on social media analytics and eDiscovery. This one-hour webinar will provide attendees with information on when social media must be discovered, how social media is discovered, and how to enact processes and procedures to protect a corporation from becoming liable in a case, eTERA said in a release.

eTERA’s Bruce Malter, Vice President of Consulting Solutions; Segal McCambridge’s Emily Acosta, Esq., Associate; and Motorola Solutions’ Michael Dwyer, Project Manager in the Office of the Chief Administrative Officer, will discuss the following key topics:

• Current state and continued growth of social media
• Policies corporations could enact to reduce the risk of being held liable
• How to contain costs when faced with litigation that involves social media
• Information required from social media accounts in order to remain compliant with current regulations
• How to pull data from social media accounts for a case

This webinar is part of eTERA’s ongoing series of training and education initiatives to help legal professionals stay abreast of critical issues surrounding data management and eDiscovery.

Register for the webinar.

Speakers:

Bruce Malter, Vice President of Consulting Solutions, eTERA Consulting
Bruce Malter is responsible for developing eTERA’s client engagement program, as well as enhancing the company’s consulting service offerings, while growing the Midwest client base. Bruce brings over 25 years of experience with professional services companies and technology providers.

Emily Acosta, Esq., Associate, Segal McCambridge
Emily Acosta represents clients in complex commercial, employment and data security matters. Whether in the context of litigation or business counseling, Emily provides her clients with practical, simple solutions. She handles cases from initial client meeting to trial, and has substantial experience drafting and arguing procedural and dispositive motions, conducting depositions and preparing complex matters for trial.

Michael Dwyer, Project Manager in the Office of the Chief Administrative Officer, Motorola Solutions
Michael Dwyer is an experienced technology professional with over 20 years of legal analysis and management experience. Michael has extensive experience developing and implementing various corporate operational strategies, policies and platforms related to the legal function, including litigation preparedness plans, matter decision analytics and legal spend management.

Litigator Sean M. Whyte has joined Gardere Wynne Sewell LLP as a partner in the firm’s Dallas office. He joins the firm from Alston & Bird, where he has practiced since 2011.

In a release, the firm said Whyte’s litigation practice includes complex commercial litigation, consumer class actions and products liability. He has practiced before state and federal courts, with class-action experience that includes defending clients in cases involving Internet sales practices, consumer fraud and other federal statutes. He has also represented clients in regulatory and government investigative matters involving federal agencies, including the U.S. Department of Energy and the Federal Trade Commission.

“Sean’s versatile expertise will further allow our litigation group to offer the best solutions for our clients,” says Gardere Chair Holland N. O’Neil. “Our litigation partners are among the most respected in their field, and we are honored to have Sean join our team.”

While at Alston & Bird, Whyte worked on litigation that resulted in a victory in the U.S. 5th Circuit Court of Appeals in the first case to consider Texas’ Anti-SLAPP statute. He also helped win the first dismissal of a federal action under the Texas Health and Safety Code statute granting limited immunity to telecommunication providers related to 911 calls. He began his legal career at Jones Day in 2004 where he assisted on litigation resulting from Hurricane Katrina and the Deepwater Horizon oil spill.

Whyte received a juris doctor degree from The University of Texas School of Law in 2004, where he was an articles editor for the Texas Law Review. He completed course work for a doctorate degree in applied philosophy at Bowling Green State University and obtained a master’s degree from the same school in applied philosophy in 1996. He also earned his bachelor’s degree in philosophy in 1994 at West Virginia University. Prior to law school, Whyte served as a senior lecturer and adjunct philosophy instructor at universities in Ohio and Michigan.

In addition to his legal practice, Whyte serves as the co-vice chair of the Law Day Committee for the Dallas Bar Association. In 2014, he was named to the Texas Rising Stars list for his work in business litigation, and he was awarded Pro Bono Lawyer of the Year by the Dallas Volunteer Attorney Program in 2010.

“It is an honor to join Gardere’s well-known and respected litigation practice,” Whyte said. “I am proud to be joining this exceptional group of professionals.”

A federal bankruptcy judge in Dallas ruled late Tuesday that Dallas entrepreneurs Sam and Charles Wyly committed tax fraud when they created a series of offshore trusts in the Isle of Man in the 1990s to shield more than $1 billion for the family tax-free, according to a report in The Dallas Morning News.

There is “clear and convincing evidence” that the “heart of the Wyly offshore system had been established through deceptive and fraudulent actions,” wrote U.S. Bankruptcy Judge Barbara Houser.

“The IRS claims that the Wylys, who made billions of dollars growing and then selling Michaels Stores and Bonanza steakhouses, set up the series of offshore trusts in the Isle of Man in order to hide income from being taxed, while still using the money in the trusts to fund a lavish lifestyle,” the report says.

Under the ruling, Sam Wyly, the surviving brother, could be required to pay the IRS as much as $1.4 billion in back taxes and penalties.

Read the article.

A Dallas appellate court considered whether California law governed contract and tort claims against California-based former employees who signed employment agreements containing a choice-of-law clause stating that Texas substantive law would apply, according to a report by Neil R. Burger in Carrington Coleman Sloman & Blumenthal, L.L.P.’s Sua Sponte blog.

“Applying the applicable provisions of the Restatement (2d) of Conflicts, the Dallas Court of Appeals affirmed the trial court’s ruling that California law would apply to the claims for breach of the non-competition provision and related tort claims, because of California’s more significant relationship to the dispute and because application of Texas law would contravene a fundamental policy of California,” he wrote.

The case is Merritt, Hawkins & Associates, LLC v. Caporicci.

Read the article.

Chief Justice John G. Roberts Jr. shrugged off any difficulty the Supreme Court might be having reaching consensus with an equal number of ideologically divided justices, reports The Washington Post.

“Roberts seemed careful not to say anything that would aid either Democrats demanding that the Senate vote on President Obama’s nominee, Judge Merrick Garland, or Republicans who say the next president should name the replacement for Justice Antonin Scalia,” according to the report by Robert Barnes.

The eight-justice court already has said it was deadlocked on several cases. And while it is true that only a small percentage of the court’s cases are decided 5 to 4, the most important ones often are, Barnes writes.

Read the article.

The Consumer Financial Protection Bureau proposed a rule Thursday that would ban arbitration clauses, which would affect the entire financial industry and the hundreds of millions of bank accounts, credit cards and other financial services Americans use, reports the Associated Press.

“The CFPB’s proposal does have a significant limitation,” the report explains. “The ban would only apply when consumers want to create or join a class-action lawsuit. Financial companies will still be able to force individuals to settle disputes through arbitration; however cases where a lone customer wants to sue his or her bank are far less common.”

The financial industry claims that arbitration is a more efficient way for customers to resolve disputes, and a study commissioned by the CFPB in lends that claim some credence. “However, when large numbers of customers were negatively impacted by the same issue, the same study showed arbitration clauses hinder the ability for customers to seek relief,” the AP report says.

Read the article.

Financial services lawyers are predicting that efforts by the Consumer Financial Protection Bureau to prevent companies from keeping consumer complaints out of a courtroom will wind up being challenged in court, reports The Wall Street Journal.

A rule proposed by the agency Thursday would prohibit financial companies from using mandatory-arbitration clauses as a way to block class-action lawsuits, according to the report. “While companies would still be able to require consumers to enter arbitration to resolve individual disputes, the elimination of the no-class arbitration provisions would strip away incentives for companies to include arbitration clauses in their contracts. And many are predicting that as a result, companies would discontinue using them.”

But the CFPB counters that class actions are a “more effective means for consumers to challenge problematic practices by … companies” than arbitration, which it says gives financial service providers an unfair advantage over customers.

Read the report.

A federal judge in San Diego said he wanted a trial by the middle of this year in a lawsuit against Donald Trump over the now defunct Trump University, according to a report by ABC News. That was before the real estate mogul appeared headed for the Republican presidential nomination.

“U.S. District Judge Gonzalo Curiel is expected to address the trial’s timing at a hearing Friday in San Diego. Trump’s lawyers, who have put the candidate on a list of witnesses who may testify, have signaled opposition to a trial while Trump is in the race,” the report says.

“This will be a zoo if it were to go to trial,” Trump lawyer Daniel Petrocelli said at a hearing in March.

Read the article.