“…numerous COVID-19 related class actions have been filed throughout the country in various different spaces—consumer, mass tort, securities, labor & employment, and banking and privacy. These newly filed complaints (and some corresponding opinions) provide us valuable insight into how class action plaintiffs will proceed with outbreak-related claims, and allows us the opportunity to further analyze the viability of putative class action complaints. This post will address the first COVID-19 certification decision and include an analysis of the two most active areas of COVID-19 class actions: mass torts and consumer protection,” write Bethany Gayle Lukitsch, Kamran B. Ahmadian and Drew Gann in McGuireWoods’ In The News.

“While the majority of these cases will take weeks or months (particularly given the court shutdowns that have occurred throughout the country) to progress to the class certification stage, surprisingly we have already seen the first COVID-19 class certified. ”

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“A 2018 Sixth Circuit panel upheld a jury verdict convicting Dr. Richard Paulus of submitting fraudulent medical claims. That same panel, with 2020 hindsight(!), reversed that conviction. It held that the trial court’s order unconstitutionally blocked exculpatory evidence,” reports Thomas Zeno in Squire Patton Boggs case updates.

“The ‘twisted’ history of the verdict began when a jury deadlocked twice and needed an Allen charge in order to convict Dr. Paulus of billing angiograms that were unnecessary.  The trial court rejected the jury’s verdict and set aside the conviction: a doctor’s decision about the degree of blockage of an artery was a matter of subjective medical opinion that ‘could be neither be false nor fraudulent.’  The government disagreed and appealed.  (Double jeopardy does not prevent appeal of a judgment of acquittal after verdict.)”

“In the first appeal, the panel (McKeague, Batchelder, Griffin) recognized the difficulty of distinguishing a fraudulent medical opinion from mere expert disagreement.  Relying on the U.S. v. Persaud, however, the panel reaffirmed that fraud occurs when a doctor deliberately inflates artery blockage in order to bill for unnecessary procedures.  The panel emphasized that “it is up to the jury – not the court – to decide whether the government’s proof is worthy of belief.”  Deferring to the jury, the panel reversed, reinstated the conviction, and remanded the case for sentencing.”

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“There is nothing much better for a litigator/baseball fan than when these two interests collide.  One of the highpoints of my legal career was successfully representing a major league baseball player (Pat Kelly) in his salary arbitration with the Yankees.  So I was pretty excited when the case Olson, et al. v. Major League Baseball, et al. was filed this year in the SDNY.  Maybe not as excited as if I would have been if I were involved in the case myself, but in these times we have to take what we can get,” discusses Edward H. Rosenthal in Frankfurt Kurnit Klein + Selz‘ blog.

“Olson was a putative class action brought by individuals who participated in DraftKings fantasy baseball competitions. The plaintiffs sued Major League Baseball (“MLB”), MLB’s marketing entity called Major League Baseball Advanced Media, L.P. (“MLBAM”), the Houston Astros and the Boston Red Sox alleging that plaintiffs’ fantasy baseball efforts had been harmed by virtue of the electronic sign-stealing scandal that has been revealed over the past few months. In a nutshell, the Astros were found to have devised a system using cameras to relay the signs the opposing team’s catcher was giving to its pitcher by sending the signs to a player or coach situated behind the Astros dugout.  The recipient of the video would then convey the pitch information to the batter by banging on a trash can.   It is undoubtedly true that a batter’s knowledge of the pitch about to be thrown enhances his chances of a successful time at the plate.  While sign-stealing is not in and of itself illegal (it’s a time honored tradition for baserunners to try to figure out the sign being given by the catcher and then convey that information to the batter), the rules of baseball specifically prohibit electronic sign stealing.”

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“An East Bay school district has agreed to pay $665,000 to settle a free-speech suit by a former student who was suspended from a leadership class, and briefly barred from serving as student body president, after posting a video that showed him as a James Bond hero fighting off terrorists, the youth’s lawyers said Tuesday,” reports Bob Egelko in the San Francisco Chronicle.

“The video by Nathaniel Yu was a parody, and the supposed terrorists were played by two of Yu’s Muslim friends, his lawyers said in announcing the settlement with the San Ramon Valley Unified School District. They said district officials falsely described the production as hate speech, and that the ensuing publicity led to threats of violence against Yu.”

“In an apology that was part of the settlement, the district said the video was not hate speech and that it ‘egrets the negative consequences associated with mischaracterizations regarding you and the content of the video.’ But Mark Davis, a lawyer for the district, said the apology was only for the harm that Yu suffered, and the settlement does not include any admission of violating the youth’s rights.”

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“In 2019, 15 percent of cases settled within two years of filing, consistent with the rate over the last 10 years. The average time from filing to settlement in 2019 was 3.3 years,” reports Laura E. Simmons and Laarni T. Bulan in The National Law Review.

“Compared to cases that settled more quickly, cases that required three to five years to settle in 2019 had a higher frequency of factors such as a public pension as a lead plaintiff and/or the presence of a corresponding SEC action.”

“Only 7 percent of cases in 2019 took more than five years to settle, the lowest rate in the past decade. Of these, 80 percent involved institutional investors. The median assets of the defendant firms in these cases were also substantially higher at $68 billion, compared to a median of $1.2 billion in other cases.”

“In 2019, cases that took more than five years to settle had a lower median settlement amount than cases that took three to five years to settle. This is despite the higher median “simplified tiered damages” of $602 million for cases that took more than five years to settle, compared to $375 million for cases that took three to five years to settle.”

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“Coal companies owned by Gov. Jim Justice and his family have settled with federal agencies to satisfy more than $5 million in unpaid penalties for violations of the Federal Mine Safety and Health Act,” reports Brad McElhinny in MetroNews the Voice of West Virginia.

“Although it’s a settlement, the federal officials say the 23 named defendants agreed to pay the full amounts of the assessed civil penalties, plus interest and penalties.”

“Federal officials sued almost two dozen Justice companies almost a year ago over millions of dollars in unpaid safety violation penalties dating back years.”

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“In Richards v. State Farm Lloyds … the Texas Supreme Court answered a certified question posed by the Fifth Circuit Court of Appeals; namely, whether the absence of a clause requiring a carrier to defend claims that are “groundless, false or fraudulent” means that the “eight-corners” rule does not apply when determining the existence of a duty to defend. The Texas Supreme Court held that the eight-corners rule applies regardless of whether the underlying policy obligates a carrier to defend claims that are groundless, false or fraudulent,” write Alissa K. Christopher and Gregory S. Hudson in Cozen O’Connor’s Recent News & Publications.

“Ten-year-old Jayden Meals died in an ATV accident while under the supervision of his paternal grandparents Janet and Melvin Richards. Jayden’s mother filed suit against the Richards, alleging that they negligently failed to instruct or supervise Jayden in his operation of the ATV. The underlying petition, however, contained no allegations regarding where the fatality occurred and no allegations regarding the custody relationship between Jayden and his paternal grandparents.”

“State Farm Lloyds provided a homeowner’s policy to the Richards. It agreed to defend the Richards under a reservation of rights and separately initiated a declaratory judgment proceeding in federal court.”

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“One after another, like dominos, court systems are shutting down or moving to drastic restrictions. In the process, court dates are being pulled and cases are moving into limbo. As that happens to your own once trial-bound cases, you think, ‘What now?’ What do you do with the time that you now unexpectedly have as your case is put on pause?” asks Dr. Ken Broda-Bahm in Persuasive Litigator.

“Clients will often issue a ‘Stop work’ notice, thinking, ‘Let’s put a pin in it, package everything so it’s fresh, then revisit the situation down the road, closer to the new date.’ Limiting the expenses is, of course, a worthwhile goal, particularly now that the economy is moving into limbo as well. But sometimes, the decision to call an abrupt and complete halt can be more penny-wise than actually wise. When a pause is created, not just by the current Coronavirus measures, but by any delay or uncertainty over a court date, that pause can be an opportunity.”

In this post, Dr. Broda-Bahm shares seven ideas on how to make the best use of an unexpected delay.

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“Three prosecutors in Utah recently resigned amid an internal investigation into free Utah Jazz tickets they received from a defense lawyer who had appeared opposite them,” reports Debra Cassens Weiss in ABA Journal’s Latest News.

“The deputy Utah County attorneys who resigned are Craig Johnson, Chase Hansen and Pona Sitake, report the Salt Lake Tribune and the Daily Herald. Both publications obtained a human resources report on the investigation into the Dec. 4 tickets provided by defense attorney Dennis Pawelek.”

“The Salt Lake Tribune says the prosecutors resigned in early February, while the Daily Herald reports they resigned in late January.”

“Sitake also was investigated in the fall for allegations he took photos of women in court and then shared them in a group message where men talked about their looks, a prior report said.”

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“Amid investigations, litigation and public scrutiny over allegedly exorbitant executive compensation at the Florida Coalition Against Domestic Violence, Tiffany Carr, the woman at the center of the maelstrom, has remained almost silent,” reports The Gainesville Sun.

“But a lawyer who represents Carr, the former CEO of the nonprofit organization, provided a glimpse in a court filing into her defense against accusations that she misspent public funds meant for the state’s domestic-violence centers.”

“Gov. Ron DeSantis, Attorney General Ashley Moody and House and Senate leaders in recent weeks have vilified Carr for orchestrating $7.5 million in compensation over three years, which included more than $4 million in paid time off. Inquiries into the nonprofit’s finances have also targeted the coalition’s executive staff and board of directors, who each year signed off on her salary and benefits.”

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“Two federal appellate courts published notable opinions on the intersection between personal jurisdiction jurisprudence and Rule 23 class action procedure. The defendants in both cases face nationwide class actions, and each argued that the Supreme Court’s 2017 decision in Bristol-Myers Squibb Co. v. Superior Court of California, 137 S. Ct. 1773, precludes district courts from exercising specific jurisdiction over the claims of unnamed putative class members from other states. The majority of a D.C. Circuit panel decided to resolve the appeal before it on alternate grounds. But in dissent, Judge Silberman explained why he understands Bristol-Myers’s holding to extend to nationwide class actions brought in federal court. The next day, a unanimous Seventh Circuit panel refused to extend Bristol-Myers to federal class actions,” reports Michael D. Leffel and Aaron R. Wegrzyn in Foley & Lardner’s Insights.

“The Supreme Court’s Bristol-Myers decision addresses state courts’ jurisdiction over the claims of non-resident plaintiffs in mass tort actions. The Court held that a California state court lacked jurisdiction over the defendant with respect to nonresident plaintiffs’ claims because the defendant was not incorporated in California and did not have its principal place of business in California (thus defeating general jurisdiction) and because the claims lacked an “adequate link” to California (thus defeating specific jurisdiction). Following that ruling, district courts across the country have split on whether to extend the logic of Bristol-Myers from state mass tort actions to nationwide class actions. ”

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“A $143 million settlement between Columbia Gas and thousands of people affected by the company’s 2018 pipeline disaster in the Merrimack Valley received final approval from a state judge on Thursday,” reports Callum Borchers in Bostonmix.

“The resolution of a class action civil case comes two weeks after Columbia Gas agreed to plead guilty in a criminal proceeding, acknowledging it violated the federal Pipeline Safety Act. The plea deal included a $53 million fine and required Columbia’s parent company, NiSource, to sell its Massachusetts business. NiSource quickly found a buyer in Eversource.”

“Anyone who lived in Lawrence, Andover or North Andover at the time of widespread fires and explosions in September 2018 can apply for compensation. The deadline to file a claim has been extended to April 27.”

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“A Hardwick lawyer was arrested for the second time this year after he allegedly violated a restraining order by sending his former girlfriend a legal form letter using their landlord as an unknowing go-between,” reports Kim Ring in Worcester’s Telegram.

“Donald W. Stolgitis, 51, of Avalon Drive, West Brookfield, was in court Thursday to face a charge of violation of a restraining order after his girlfriend, who still lives in the rented home they shared, received a notice to quit, essentially ordering her out of the house for nonpayment of rent, court records show.”

“Stolgitis was ordered in February to have no contact with her, even through a third party.”

“Michelle Valley said she was immediately suspicious of the notice because the certified letter arrived in a pink envelope like the one Stolgitis told her he’d forgotten at his father’s house when he presented her with a valentine card in February, according to a police report. Pink is her favorite color, she wrote, adding that she saw the move as intimidating.”

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“The most disciplined lawyer in the history of the state of Tennessee has been arrested again on new charges. Hendersonville lawyer Andy Allman known for a lavish lifestyle and accused of cheating or stealing from 127 clients was arrested” March 9, 2020, reports Dennis Ferrier in Fox17 Nashville.

“Allman was arrested for impersonating a lawyer and theft of more than $10,000. These new charges come just one week before his Sumner county theft trial.”

“A State of Tennessee indictment accuses Allman of ‘unlawfully and falsely hold himself out as a lawyer to Mario Herrera, against the peace and dignity of the State of Tennessee.’ The indictment states that from December 16, 2014 to about March 3, 2020, Allman unlawfully took $54,269.11 from Herrera without Herrera’s effective consent.”

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“The Ohio Supreme Court has suspended an Olmsted Falls attorney who repeatedly violated a protection order, lied to police about violating the order and tested positive for cocaine use, which violated the terms of his probation,” reports Dan Trevas in the Highland County Press’ Headlines.

“In a per curiam opinion, the Supreme Court suspended Anthony M. Piazza for two years, with one year stayed with conditions, based on repeated violations of court orders between July 2017 and March 2019, as well as failing to comply with the rules for operating his client trust account. The second year of Piazza’s suspension was stayed as long as he does not commit further professional misconduct and obtains an assessment from the Ohio Lawyers Assistance Program (OLAP).”

“Chief Justice Maureen O’Connor and Justices Sharon L. Kennedy, Judith L. French, R. Patrick DeWine, Michael P. Donnelly, and Melody J. Stewart joined the opinion Feb. 25.”

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“Litigation has its place, but most in-house counsel agree: avoid it if at all possible. That’s why Chris Fairey is a proponent of arbitration clauses in his employee contracts. Fairey is General Counsel for American Residential Services (ARS), one of the nation’s largest residential and commercial heating, air-conditioning, and plumbing services companies. ARS earns approximately $1 billion dollars in revenue annually and has more than 6,000 employees across the country. Like any legal leader of a company that size, Fairey spends a lot of time thinking about risk,” discusses Mark P. Henriques in Womble Bond Dickinson’s Articles and Briefings.

“One of the big upsides to arbitration from Fairey’s point of view is that the process takes a lot of the emotion out of a dispute.  He points out that presenting a case to an experienced arbitrator, rather than a jury, removes many of the emotional elements that can go along with litigation, especially when employees or consumers are on the other side. A jury trial can be subject to grandstanding by plaintiff’s counsel, which is not the case in arbitration.”

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“Brittny Lewton, a district attorney who represents seven counties on Colorado’s Eastern Plains, was indicted Thursday by a grand jury on drug and official misconduct charges,” reports Sam Tabachnik in the Denver Post’s Crime & Courts.

“On Friday morning, Lewton turned herself in to the Logan County Jail, said Stan Garnett, the former Boulder County district attorney who is serving as Lewton’s lawyer.”

“The indictment and the arrest affidavit remain suppressed.”

“Lewton, the 40-year-old lead prosecutor for the state’s 13th Judicial District, faces three counts involving controlled substances, including possession and conspiracy, and one count of official misconduct, according to Logan County District Court records. A judge gave her a $10,000 personal recognizance bond.”

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“During Supreme Court oral arguments earlier this week, a Biglaw partner dropped a ‘damn’ to colorfully illustrate his point,” reports Kathryn Rubino in Above the Law’s Courts.

“It happened during the arguments in Opati v. Republic of Sudan. Sudan’s lawyer, White & Case’s Christopher Curran, was in an exchange with Justice Stephen Breyer when he argued SCOTUS had previously held the retroactive assessment of punitive damages was unfair and a ‘draconian step.’ That’s when the juiciness happened:”

“So before we attribute that intention to Congress, we’re going to ask Congress to say it pretty damn clearly.”

“Chief Justice William Rehnquist let it fly in arguments in Donnolley v. Dechristoforo (1974). In fact, according to Law.com, ‘damn’ has been said a handful of times during oral arguments from 1950-2015. However, the majority of the times it was used it was in quoting the record of the case. But at least one other advocate used ‘damn’ for emphasis:”

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“An East Providence lawyer who specializes in asbestos litigation is suing the Town of Barrington over his arrest on assault and disorderly conduct charges that were later dismissed,” reports Katie Mulvaney in the Providence Journal.

“John Deaton is accusing his hometown, specific police officers, a lieutenant and retired Police Chief John LaCross of violating his rights, conspiracy, false imprisonment, invading his privacy, and malicious prosecution over his Sept. 24, 2017, arrest following a confrontation at a Pop Warner football game.”

“LaCross and Lt. Timothy Harrington face allegations of failure to supervise, while Officer David Wyrostek stands accused of assault and battery.”

“Deaton alleges that as a result of his ‘unlawful’ arrest he lost more than $3 million in business, incurred legal fees, and suffered irreparable harm to his reputation.”

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“Sometimes appellate opinions are issued on a seemingly narrow subject matter that can apply to many other factual contexts.  In one such recent example, a Florida appellate court concluded that a security services provider could not be held responsible for allegedly failing to protect a person who was criminally attacked,” reports Matthew J. Meyer in Ansa | Assuncao’s News & Articles. “The reason for the appellate court’s decision is what is interesting, and could be applied well beyond the factual circumstances involved in the specific case:  the security provider’s contract with Miami-Dade County established the hours of service, and those hours of service ended at 7:00 pm each day, therefore the security provider had no legal duty to provide security to a person who was attacked at 8:00 pm. ”

“In reaching its decision, the appellate court discussed the concepts of ‘zone of risk’ and the corresponding legal duty for a security provider to ‘protect persons lawfully on defined premises.’  Importantly, however, the appellate court explained:  ‘Nonetheless, the extent of the undertaking as defined under the terms of the contract should define the scope of the duty.’ Applying this doctrine, the appellate court explained its conclusion that the responsibility to enact reasonable security measures was borne solely by the County.”

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