“On April 9th, 2020 the New York Supreme Court, Appellate Division, First Department, affirmed the trial court’s decision in Nemeth v. Brenntag North America, et al., Case No. 9765, New York County Index No. 190138/14, denying the defendant’s post-trial motions,” reports Levy Konigsberg LLP in Benziga’s PRNewsWire.

“The plaintiffs, Florence and Frank Nemeth of Lake Ronkonkoma, New York, sued several manufacturers and distributors of asbestos-containing products, including a distributor of talcum powder named Whittaker Clark & Daniels, Inc. (“WCD”), after Florence was diagnosed with mesothelioma following years of using talcum powder in a product called Desert Flower, the talc for which WCD had sourced from asbestos-containing mines.”

“Florence succumbed to the disease before trial, and was survived by her husband Frank and their two children and four grandchildren.”

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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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“The U.S. Bankruptcy Court for the District of Delaware approved … a $1.7 million settlement agreement in the bankruptcy case of Springdale-based nanotechnology manufacturer NanoMech Inc. that will clear its former CEO of any wrongdoing,” reports Jeff Della Rosa in Talk Business & Politics.

“U.S. Bankruptcy Judge John Dorsey approved the agreement between NanoMech, its directors and officers and New York-based lender Michaelson Capital Partners. The directors and officers in the agreement include all existing and former directors and officers of NanoMech, including former chairman and CEO Jim Phillips, Ajay Malshe, Deborah Wince-Smith, Michael Easterly, Arpana Verma, Wyatt Watkins and Ben Waisbren.”

“NanoMech’s directors and officers will have their insurer pay $1.7 million to NanoMech, and the company will pay $1.68 million to Michaelson, the agreement shows. Also, NanoMech will release all pending claims against Phillips and Conner & Winters LLP, and they will be dismissed with prejudice.”

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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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“On March 27, 2020, a five-year legal battle between three certified classes of Jeep Cherokee drivers and Fiat Chrysler came to a sudden end, when a federal judge in the Southern District of Illinois held that allegations that the vehicles were vulnerable to cyber-attacks did not give plaintiffs standing to sue under Article III of the Constitution,” reports Melissa D. DiGrande in Proskauer’s Appellate.

“U.S. District Judge Staci M. Yandle—who was assigned to the case in April 2019, after Judge Michael Reagan retired—did not take lightly her decision to grant defendants’ motion to dismiss for lack of jurisdiction, given the lengthy history of the dispute. Discovery had been completed, experts had been retained, and several motions involving the same standing issues had already been resolved—in plaintiffs’ favor. But, as Judge Yandle explained, a federal court has ‘an independent obligation at each stage of the proceedings’ to ensure that it has subject matter jurisdiction over the litigation. Ultimately, defendants’ persistence paid off and resulted in the full dismissal of the claims, with prejudice.”

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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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“An initial wave of three class actions stemming from COVID-19 were filed against the Chinese government this past week. Each action claims the Chinese government is liable for injuries and damages in the United States caused by the virus. Other suits no doubt will follow,” discusses Simren K. Gill  in Bryan Cave Leighton Paisner’s Insights.

“The first suit, Logan Alters, et al. v. People’s Republic of China, et al., Case No. 1:20-cv-21108-UU, filed in the United States District Court for the Southern District of Florida, in Miami, asserts claims for negligence, negligent and intentional infliction of emotional distress, strict liability for ultra-hazardous activity, and public nuisance against the People’s Republic of China (“PRC”) and its National Health Commission, Ministry of Emergency Management, and Ministry of Civil Affairs, as well as the People’s Governments of Hubei Province and Wuhan City, where the virus allegedly originated. Plaintiffs seek to certify national and Florida “non-commercial tort” and “commercial” classes consisting of all persons and legal entities who suffered injury, damage and loss related to the COVID-19 outbreak.”

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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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“LeafedOut, formerly known as LeafedIn, announced a resolution to their intellectual property dispute with the professional networking site “Linkedin” that correlated with their complete rebrand to Leafedout as of the start of this year. This press release signifies the end of all references to the former brand name within the LeafedOut organization,” reports Ellie Alexander in Reported Times.

“LeafedOut emboldened even further by its brand identity upgrade, continues on as one of the most disruptive and popular cannabis tech companies in the industry today. However, unlike the industry standard, it’s management believes that putting this settlement behind them as well as moving forward with a very aggressive and ambitious roadmap for 2020 in terms of their product offering will allow them to continue their exponential revenue and user growth while providing even more value across multiple verticals for its community. LeafedOut set itself apart from other rising businesses in the canna community with its focus on social responsibility, marijuana activism, and focus on veteran and patient rights.”

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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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“In yet another opinion applying the Florida Supreme Court’s landmark decision in Engle v. Liggett Group, Inc., 945 So. 2d 1246 (Fla. 2006), the Eleventh Circuit affirmed denial of motions for judgment as a matter of law against R.J. Reynolds Tobacco Company and Philip Morris USA Inc. in a published opinion upholding multi-million dollar jury verdicts against both defendants,” posts Keith Emanuel in Eversheds Sutherland’s 11th Circuit Business Blog.

“Plaintiff Kerrivan became an addicted serial smoker at an early age, suffered increasingly serious medical diagnoses as a result, and made repeated unsuccessful attempts to quit. He eventually quit smoking but has required an oxygen tank to assist his breathing ever since. After the jury awarded $15.8 million in compensatory damages and $25.3 million in punitive damages on various fraud and conspiracy claims, the tobacco companies renewed motions for judgment as a matter of law and filed a motion for new trial or remittitur, arguing that the compensatory damages award was excessive, that the punitive damages award was unconstitutional, and that the evidence of reliance was insufficient to support the fraudulent concealment and conspiracy claims. The appeal stemmed from the district court’s denial of such motions.”

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The Seventh Circuit Court of Appeals is ruling on the Dish Networks $280M settlement reports Eric J. Troutman in TCPA World.

“The appellate court concluded that the district court made no material legal errors save one– in assessing damages the Court started with the Plaintiff’s ability to pay and worked backward. The Court determined that proper constitutional analysis starts with the amount of harm actually caused, and then application of a multiplier.”

“The appellate court concluded that the district court’s award amounted to $4.00 per violation and suggested that if the harm caused per call was $1.00 than the judgment would certainly be proper. But it remanded for the lower court to assess the damage of an unwanted call (according to one expert the cost per unwanted call is as low as 6.8 cents, which would make a proper award no higher than 72 cents a call using a 9 times multipler.)”

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“General Motors has reached a $120 million settlement with owners who claimed that their vehicles lost value because of defective ignition switches, which have been linked to 124 deaths,” reported in Reuters’ AutoBlog.

“The preliminary settlement was filed on Friday night with the federal court in Manhattan and requires approval by U.S. District Judge Jesse Furman. It would resolve the last major piece of litigation stemming from ignition switches that could cause GM vehicles to stall and prevent airbags from deploying.”

“The automaker denied liability in agreeing to settle, court papers show.”

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“A St. Louis County Circuit judge has given preliminary approval to a nearly $1.7 million settlement on a class-action lawsuit. It affects about 10,000 people who were charged fees for the issuance of warrants or for failing to appear for a municipal court date in Ferguson, said Michael-John Voss, co-founder and special projects director with ArchCity Defenders,” reports The St. Louis American.

“These municipal court abuses were at the heart of the Ferguson uprising, which began after the killing of Michael Brown in August of 2014 and continued for about two years. Roelif Carter, a 62-year-old disabled military veteran, who depends on disability payment and food stamps, filed the case represented by ArchCity Defenders, the Saint Louis University School of Law Legal Clinics, and the Campbell Law Firm.”

“The city did not admit wrongdoing in the settlement. The American reached out to the city’s attorney for comment and is awaiting a response.”

“Circuit Judge Joseph Dueker has approved a settlement of $1,699,405 to be distributed among Roelif and 10,000 person class, as a partial return for the exploitative warrant and failure to appear fees they were charged by Ferguson’s municipal court between 2009 through the present. The parties have valued the total settlement being worth more than $5 million — a value that reflects the additional amount Ferguson would have continued to collect from 2014 through 2022 if it had not stopped charging the improper fees, attorneys said. The class of people who paid the fees will get 80 percent of what they paid back in a refund if they file a claim.”

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“Directors of the Tulare Local Health Care District (TLHCD) voted  … to file a formal complaint against their former attorney with the California State Bar Association,” reports Dave Adalian in Valley Voice.

“’This is a mechanism to remove a bad apple from the profession,’ said TLHCD director Xavier Avila before the board voted unanimously to approve making the complaint. ‘If you’re driving down the road and you see an obstruction, a branch laying in the way, you remove it.’”

“Avila was describing the TLHCD’s former general counsel Bruce Greene.”

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“A federal district court in Massachusetts recently ordered Minneapolis based Coloplast to pay over $760,000 to Plaintiff, Amy Lestage, for retaliating against her after she and others filed a whistleblower complaint against the company,” reports Jolena Jeffrey in Katz, Marshall and Banks’ Whistleblower Law Blog.

“In December 2011, pharmaceutical whistleblower, Lestage, along with two former Coloplast employees filed a False Claims Act (FCA) qui tam action against the company, Byram Healthcare, and other large distributors of medical devices and services related to medical conditions and surgeries such as incontinence and ostomy.  The qui tam action alleged that Coloplast and some of its distributors engaged in an illegal kickback scheme to inflate their Medicare and Medicaid reimbursements and thereby defraud the federal government.  The qui tam action was unsealed on November 20, 2014, and the names of the relators, including Lestage, became public knowledge.”

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“Generally speaking, a court does not have the discretion to extend a statute of limitations.  A court can, however, consistent with its inherent equitable powers, preclude a defendant from asserting a statute of limitations defense where the defendant’s own intentional misconduct prevented the plaintiff from timely filing suit,” discusses Paige Bartholomew in Farrell Fritz’s blog.

“This equitable doctrine, known as equitable estoppel – or, “equitable tolling” – is consistent with the principle that a wrongdoer should not be able to benefit from his own wrong, and is often raised by a plaintiff in response to a statute of limitations defense.  But, as recently illustrated by the Suffolk County Commercial Division in Shoreham Hills, LLC v Sagaponack Dream House, LLC … its application is rare, and “estopping” a defendant from asserting a statute of limitations defense where it is otherwise appropriate is no simple feat.”

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“The Eleventh Circuit has clarified the scope of the ‘local event exception’ to the federal-court jurisdiction over ‘mass actions’ conferred by the Class Action Fairness Act (“CAFA”), holding that claims by former foundry employees against manufacturers and distributors of products used at the foundry are not within the exception,” posted Valerie Sanders in Eversheds Sutherland’s 11 Circuit Business Blog.

“The plaintiffs in the case are 230 former workers at a now-closed Alabama foundry.  They worked in different jobs at different times, but all claim that they were harmed by exposure to hazardous chemicals during their employment.  The defendants are unrelated companies that manufactured (and in some cases distributed) chemical products used at the foundry, including sands, resins, gases, and other substances of various formulations.  The plaintiffs’ complaint, originally filed in state court, includes several claims, all arising from the allegation that the ‘normal and foreseeable’ use of the defendants’ products at the foundry caused the ‘formation and release of hazardous and carcinogenic chemical substances,’ which harmed them.”

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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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