The Salt Lake Tribune reports that former members of the polygamous Fundamentalist Church of Jesus Christ of Latter-Day Saints have provided enough evidence of misdeeds by their old lawyers for parts of a lawsuit to proceed, the U.S. 10th Circuit Court of Appeals ruled.

The Tribune‘s Nate Carlisle explains:

The former sect members must still prove their case in a Salt Lake City courtroom, the appeals court said. The Denver-based appeals court only considered the narrow issue of whether federal Judge Ted Stewart correctly dismissed a lawsuit filed against FLDS President Warren Jeffs and the law firm which used to represent his church, Snow Christensen & Martineau.

The plaintiffs, ex-Jeffs followers, contend the lawyers helped Jeffs find legal mechanisms to hide child rape as well as benefit from child labor, kick people out of their homes and separate them from their families, Carlisle writes.

Read the Salt Lake Tribune article.

Image by Mitch Barrie

The Connecticut Supreme Court Thursday narrowly reversed a ruling by a lower court judge dismissing a lawsuit by the families of victims of the Sandy Hook shooting against Remington Arms Company, allowing the case to proceed, reports the Hartford Courant.

The decision that remanded the landmark gun case back to Bridgeport Superior Court possibly created a path that other mass shooting victims can follow to get around the federal Protection of Lawful Commerce in Arms Act, known as PLCAA, which has protected the manufacturers of the AR-15 assault rifle from lawsuits, writes the Courtan‘s Dave Altimari.

He explains:

The ruling paves the way for the families to subpoena internal documents on how the gun companies have marketed the AR-15, which has become the weapon of choice for mass shooters. The gun manufacturers have closely guarded information on how they market the assault weapons.

Read the Courant article.

Reuters is reporting that a U.S. federal judge has issued a preliminary ruling that Qualcomm Inc. owes Apple Inc. nearly $1 billion in patent royalty rebate payments, though the decision is unlikely to result in Qualcomm writing a check to Apple because of other developments in the dispute.

Reuters’ Stephen Nellis writes that a district judge in California ruled Thursday that Qualcomm must make the rebate payments to Apple, which for years used Qualcomm’s modem chips to connect iPhones to wireless data networks.

“In general, the contract factories that built Apple’s iPhones would pay Qualcomm billions of dollars per year for the use of Qualcomm’s patented technology in iPhones, a cost that Apple would reimburse the contract factories for,” according to the article.

Read the Reuters article.

Purdue Pharma’s chief executive said the company is considering bankruptcy as it faces a cascade of lawsuits alleging that the drugmaker played a key role in driving the nation’s opioid crisis, including aggressively and deceptively marketing the powerful painkiller OxyContin, reports The Washington Post.

Craig Landau said that the company has not yet decided whether to file bankruptcy, but it is something the company is weighing as it considers the impact of potential legal settlements or jury verdicts that could cost tens of billions of dollars, according to the Post‘s Katie Zezima.

“Declaring bankruptcy could halt litigation against the company, bankruptcy lawyers said, and it can be more difficult for plaintiffs to secure judgments in bankruptcy court than in civil court,” Zezima writes.

Read the Post article.

Image by Mike Mozart

A lawyer representing a man who claims Bayer AG’s Roundup weed killer caused his cancer urged jurors to imagine the scales of justice ever so slightly tilted in his favor, as if weighted by a feather, and said that would be enough to advance his trial to the next and final phase, reports Bloomberg.

Reporter Joel Rosenblatt summarized the argument of Aimee Wagstaff, representing Edwin Hardeman:

Roundup, not hepatitis, caused Hardeman’s cancer, his lawyers argued at a critical juncture in the company’s second U.S. trial over the popular herbicide. Hardeman’s exposure to Roundup “was a real factor, it doesn’t have to be the only cause” of his cancer, Wagstaff said. “It doesn’t have to be the only cause of his harm,” even if they determine hepatitis “may have played a role,” she added.

Read the Bloomberg article.

CNN is reporting that Oklahoma Attorney General Mike Hunter has argued in court filings that Johnson & Johnson should be compelled to release millions of pages of documents about its role in the opioid epidemic.

The company acted as an opioid “kingpin” by using a web of foreign and domestic subsidiaries to supply raw materials “necessary to manufacture the opioid pain medications thrust upon the unsuspecting public since the 1990s,” Hunter alleged.

“The Oklahoma case is set to be the first in the nation to go before a jury that could determine pharmaceutical companies’ role in the nation’s opioid epidemic and whether Big Pharma should pay for it,” writes CNN’s Wayne Drash. “On Friday, District Court Judge Thad Balkman denied pharmaceutical companies’ request for a delay, saying it is in the public’s interest for the trial to begin May 28.”

Read the CNN article.

The U.S. Court of Appeals for the Seventh Circuit held that merely requiring extrinsic evidence to interpret a provision of a form contract does not render class certification improper, and that absent a more thorough explanation of its reasoning from the trial court, it could not uphold the trial court’s ruling decertifying the class.

As a result, explains Jeffrey Karek in the Maurice Wutscher’s Consumer Financial Services Blog, the Seventh Circuit vacated the decision of the trial court and remanded for further proceedings.

His article gives the facts in Red Barn Motors, Inc. v. NextGear Capital, Inc. and traces the litigation through the courts.

Read the article.

The Supreme Court of Texas is considering whether to grant a petition for review to establish whether an indemnity provision covers only third-party claims, not first-party claims, unless the provision unequiv­oc­al­ly states otherwise, writes D.C. Toedt III in the On Contracts blog.

He describes the case of Claybar v. Samson Exploration LLC, in which a property owner sued Samson for alleged damage to the property during oil and gas drilling. Claybar settled with Samson’s contractor but still claimed Samson was con­tract­ually required to indemnify Claybar for the attorney’s fees and costs that Claybar had incurred in pursuing his negligence claim.

Read the article.

A recent ruling in an Alabama federal court illustrates how having a valid independent contractor agreement is not necessarily an impenetrable magic shield automatically rendering misclassification claims null and void, according to Fisher Phillips’ Gig Employer Blog.

Partner Richard Meneghello describes the case in which a company’s former worker claimed that he faced discrimination on account of his race, gender, and age during his three months on the job. The company, however, countered that the plaintiff had been an independent contractor and did not have legal standing to bring employment discrimination claims under Title VII or the ADEA.

The company also citied an independent contractor agreement, confirming that the worker was a contractor and had no employment rights. The plaintiff cited work requirements that would have been appropriate for an employee.

“When the two were compared—the world contained in the contractor agreement against the reality as alleged by Nemo’s complaint and evidence—the court found inconsistencies that led it to rule in [the plaintiff’s] favor,” Meneghello writes.

Read the article.

Lawyers for Neiman Marcus tried Thursday to convince a district court judge in Dallas to dismiss a lawsuit that alleges the luxury retailer’s owners fraudulently transferred its European subsidiary out of reach of creditors, reports The Dallas Morning News.

Neiman Marcus’ is dealing with an unsustainable debt of $5 billion.

“One of Neiman Marcus’ debtholders, Marble Ridge Capital, sued in December to reverse the transfer of the Munich-based MyTheresa e-commerce division, valued at $1 billion, to private equity owners Ares Management and the Canada Pension Plan Investment Board.” according to the News‘ Maria Halkias.

Read the Dallas News article.

A new Trump administration rule for family-planning grants could trigger a national public health crisis, the American Medical Association and Planned Parenthood said in a lawsuit Tuesday challenging the rule, reports the Associated Press.

In addition to the AMA/Planned Parenthood lawsuit, the rule is being challenged in a lawsuit filed Monday by California officials and another filed Tuesday by officials in 20 other mostly Democratic controlled states.

The Department of Health and Human Services rule would prohibit family planning clinics funded by the federal Title X program from making abortion referrals — a provision that critics denounce as a “gag rule.”

“Pregnancies that are unintended, and thus riskier, will increase. The number of abortions will also increase. And there will be fewer tests for sexually transmitted infections and cancer screens — putting patients and their partners at great health risk,” the lawsuit said.

Read the AP article.

Update: Pavone & Fonner have filed a federal lawsuit seeking to invalidate B&P 6068(b) as in violation of fundamental First Amendment principles.

A California attorney is in professional trouble for calling the ruling of the female judge in his case “succubustic,” among a host of other insults, according to Bloomberg Law.

A state appellate court announced it would report Benjamin Pavone of Pavone & Fonner LLP to the state bar, writes Bloomberg’s Brian Flood.

The trial court had denied Pavone’s request for an award of $146,634 in attorneys’ fees in an employment law suit. In his notice of appeal, he said the  ruling was “disgraceful,” “succubustic,” validated the defense’s “pseudohermaphroditic misconduct,” and “prompt[s] one to entertain reverse peristalsis unto its four corners.”

The use of a form of the word “succubus” drew a rebuke from the appellate court: “We publish this portion of the opinion to make the point that gender bias by an attorney appearing before us will not be tolerated, period.”

Read the Bloomberg Law article.

In a post on the Mintz, Levin, Cohn, Ferris, Glovsky and Popeo website, Gilbert A. Samberg discusses the question: What if a contracting party fails to appear to seek enforcement of an enforcement clause?

“At least two New York State trial courts tell us that your unexcused default in responding to a summons and complaint can be deemed a waiver of a contractual right to arbitrate,” he writes.

Courts in those cases granted default judgments on contract claims in such circumstances notwithstanding that the contracts in question contained arbitration clauses.

Read the article.

Image by Mike Mozart

The San Francisco judge overseeing a string of federal jury trials over whether Monsanto’s Roundup weed killer causes cancer on Tuesday sanctioned a lead trial attorney for discussing prohibited evidence in opening statements to the jury, reports Courthouse News Service.

CNS reporter Helen Christophi explains:

U.S. District Judge Vince Chhabria imposed $500 in sanctions on plaintiff attorney Aimee Wagstaff, of Colorado-based Andrus Wagstaff, ruling she intentionally violated court orders not to reference evidence blocked from the first part of the trial while delivering her opening statement Monday. He said he might also sanction the rest of the lawyers representing California man Edward Hardeman, but will defer ruling until after the four-week trial has wrapped.

Read the Courthouse News Service article.

A jury in Denton, Texas, has found two former high school football players liable in the aggravated sexual assault of a 14-year-old girl, a ninth-grader at the time of the 2012 attack, and awarded a total of $32 million.

The jury’s Feb. 28 verdict, in District Judge Lee Ann Breading’s 462nd Judicial District Court, was unanimous.

Testimony indicated the attack took place at a student’s home, where the girl reported that she was drugged and then raped by two athletes from Hebron High School in nearby Carrollton.

Jurors heard testimony in the case that the two boys had sex with the girl at the same time. One of the defendants testified that were he to encounter a girl as intoxicated as the victim again, he would behave the same way, according to plaintiff’s lawyers.

The victim, who is not identified because she was a minor at the time of the sexual assault, was awarded $7 million in actual damages and another $25 million in punitive damages.

“I cannot begin to tell you what this verdict means to my client,” said attorney Charla Aldous of Aldous\Walker in Dallas, who represents the victim. “She is a brave young woman who stood for what was right against all odds. My hope is that she will be a voice for sexual assault victims who are afraid to come forward and hold rapists responsible for their actions.”

Also on the legal team for the young woman are Aldous\Walker trial lawyers Brent Walker and Caleb Miller.

At trial, one of the two defendants in the case testified that what happened between him and the victim was not a sexual assault, but consensual. His only regret, he told the jury, was that he “lost his virginity in that way.” The other defendant testified by video deposition and asserted his Fifth Amendment privilege against self-incrimination. Neither defendant has ever been arrested or charged with a crime in the case.

This was the second civil trial resulting from the attack. In 2014, the young woman and her family sued the Lewisville Independent School District over the harassment and bullying she experienced at school following the attack. But the jury in that case, in federal court in Sherman, declined to find the school district liable. Even so, that judge subsequently declared that the victim had been sexually assaulted.

The Denton case is Paul Fletcher et al. v. A.V. and I.G., No. 14-10284-16, in the 462nd Judicial District Court in Denton County, Texas.

The Supreme Court of Texas recently ruled in favor of the Texas Windstorm Insurance Association (TWIA) regarding attorney-client privilege in a decision that can benefit insurance companies involved in litigation, reports Androvett Legal Media & Marketing.

The justices determined that attorney-client privilege extended to communications between a TWIA employee and counsel when the employee was serving as an expert witness for the company. The case involved a dispute between the city of Dickinson and TWIA.

Dallas insurance litigator Meloney Perry of Perry Law P.C. says the ruling is significant to Texas because it aligns the state with the federal rules on expert disclosure and production. She notes it also may be of particular benefit to insurance companies.

“This ruling means that underwriters, auto damage personnel and claims handlers may serve as experts without exposing attorney-client communications, even though they are employed by an insurance company involved in litigation,” said Perry. “One side benefit is this could cut costs from having to hire an outside expert.”

Perry says an insurance carrier employee designated with expert knowledge or who signs an affidavit attesting to certain expertise will not have to produce communications with counsel when Texas law applies. However, certain work product documents may not be protected.

“Work product is still subject to being produced, so parties will need to make the determination on a document-by-document basis. If the witness is provided an investigative report which is work product that may not be protected, but the email between the witness and counsel will be.”

Perry adds that if a federal question is being litigated in federal court, the attorney-client privilege is a question of federal common law. In state court and diversity cases filed in federal court, the attorney-client privilege is controlled by that forum’s state law.

A federal appeals court upheld about $8 million in damages Tuesday to the former general counsel of a Bay Area laboratory who was fired after telling company officials about possible bribery and records falsification by the lab’s employees in China, according to the San Francisco Chronicle.

Bio-Rad Laboratories fired general counsel Sanford Wadler in 2013, claiming poor performance. The company also claimed it found no evidence of wrongdoing by its employees.

The Ninth U.S. Circuit Court of Appeals on Tuesday found evidence to support the 2017 verdict by a federal court jury in San Francisco that Wadler had acted as a whistle-blower and was dismissed in retaliation for reporting conduct that he “reasonably believed” to be illegal, according to the Chronicle‘s Bob Egelko.

Read the SF Chronicle article.

Above the Law reports on a law firm’s breach-of-contract lawsuit against an associate who wants to leave the firm.

Senior editor Kathryn Rubino describes the suit filed by the Preis PLC law firm:

The firm recently sued Jane “Megan” Daily, a soon-to-be former associate leaving after a year at the firm. The petition alleges a breach of contract and damages — the firm says it lost $10,000 by training Daily for the year because “more experienced attorneys must take time away from other tasks to supervise and mentor new hires, further costing the firm significant lost billing time.”

Read the Above the Law article.

While the rule denying the award of “punitive” or “exemplary” damages for breach of contract is subject to certain limited exceptions, it appears to enjoy wide-spread acceptance in most states and in virtually all common-law countries, according to Glenn West, writing in Weil, Gotshal & Manges’ Global Private Equity Watch.

But one of the well-recognized exceptions that can sometimes threaten to swallow the rule is that which permits punitive or exemplary damages anytime ‘the conduct constituting the breach is also a tort for which punitive damages are recoverable.’ And a ‘dog’s breakfast of tort-based fraud claims can frequently accompany a breach of contract claim.” West writes.

He discusses the case of Bombardier Aerospace Corp. v. SPEP Aircraft Holdings, LLC, in which the Texas Supreme Court upheld the liability-limiting provisions waiving punitive damages, even for fraud.

Read the article.

Addressing a bench trial decision concerning a former employee’s retention of confidential information and violation of a non-compete provision, the U.S. Court of Appeals for the Fourth Circuit found no abandonment of the employer’s breach claims, and concluded that while certain flowcharts contained protectable trade secrets, there was no breach of the non-compete.

In an article for McDermott Will & Emery, posted at JDSupra.com, Mary Hallerman describes the case of an employee who was subject to an employment agreement requiring him to return to his employer all work documents upon leaving the company. The former employee breached his agreement by retaining these documents after he left the company and misappropriated trade secrets, the plaintiff company alleged.

The Fourth Circuit found that the ex-employee had not breached the non-compete clause because his role at his new employer was not sufficiently similar to constitute a breach.

Read the article.