Emerging Issues Law Community News

Judge Orders Insureds, Insurers To Arbitrate Construction Defect Claims

anonymous@localhost.com (Liz Barrett) — Thu, 23 May 2013 17:20:00 -0400

SAN FRANCISCO - A California federal judge on May 21 stayed a coverage action pending the completion of arbitration between insureds and insurers over construction defect claims and ordered the parties to complete arbitration (Swinerton Builders, et al. v. American Home Assurance Co., et al., No. 12-6047, N.D. Calif.; 2013 U.S. Dist. LEXIS 72089).

ResCap Seeks $2.1B Deal With Ally Financial To End Dispute, Speed Chapter 11 Exit

anonymous@localhost.com (Liz Barrett) — Thu, 23 May 2013 17:20:00 -0400

NEW YORK - Bankrupt Residential Capital LLC on May 23 moved in the U.S. Bankruptcy Court for the Southern District of New York for authorization to enter into a settlement agreement with Ally Financial Inc. under which Ally would pay an additional $1.35 billion, for a total of $2.1 billion, to settle claims ResCap had against Ally (In Re: Residential Capital LLC, No. 12-12020, Chapter 11, S.D. N.Y. Bkcy.).

ResCap Seeks $2.1B Deal With Ally Financial To End Dispute, Speed Chapter 11 Exit

anonymous@localhost.com (Liz Barrett) — Thu, 23 May 2013 17:20:00 -0400

9th Circuit: Union Officials Violated Federal Law When They Formed Competing Union

anonymous@localhost.com (Liz Barrett) — Thu, 23 May 2013 17:20:00 -0400

SAN FRANCISCO - Local union officials who diverted union resources while attempting to establish a new, competing union after their own was to be placed in trusteeship violated the Labor Management Reporting and Disclosure Act (LMRDA), the Ninth Circuit U.S. Court of Appeals ruled May 22 (Services Employees International Union, et al. v. National Union of Healthcare Workers, et al., No. 10-16549, 9th Cir.; 2013 U.S. App. LEXIS 10375).

Couple Sufficiently States Claim Under RESPA, Judge Rules

anonymous@localhost.com (Liz Barrett) — Thu, 23 May 2013 17:20:00 -0400

BIRMINGHAM, Ala. - A federal judge in Alabama on May 22 ruled that a couple could pursue a claim that Bank of America N.A. and its loan servicing arm BAC Home Loans violated the Real Estate Settlement Procedures Act (RESPA) for their alleged failure to respond to qualified written requests (QWRs) for information about their loan but dismissed the remainder of the plaintiffs' lawsuit for failure to state a claim (Gregory Collins, et al. v. BAC Home Loans, et al., No. 12-cv-3721-LSC, N.D. Ala.; 2013 U.S. Dist. LEXIS 71466).

Plan Administrator Lacks Standing In Lawsuit Against Custodian, 7th Circuit Rules

anonymous@localhost.com (Liz Barrett) — Thu, 23 May 2013 17:20:00 -0400

CHICAGO - A pension plan administrator does not have constitutional standing to bring suit against the plan's custodian for refusing to make a distribution to the plan's participant because distributions were frozen as a result of a Michigan state court order in a post-judgment collection proceeding, and therefore, the administrator's injury was not "fairly traceable" to the custodian, the Seventh Circuit U.S. Court of Appeals affirmed May 20 (Leroy Johnson v. Merrill Lynch, Pierce, Fenner & Smith, Inc., No. 12-3869, 7th Cir.; 2013 U.S. App. LEXIS 10006).

Federal Judge Approves Class Action Settlement Over Dental Implants

anonymous@localhost.com (Liz Barrett) — Thu, 23 May 2013 17:20:00 -0400

LOS ANGELES - Nobel Biocare Holding AG's settlement agreement with 2,900 dentists who say they were financially harmed when the company's dental implants failed sooner than warranted was approved May 21 by a California federal judge (Jason Yamada, D.D.S., et al. v. Nobel Biocare Holding AG, et al., No. 10-4849, C.D. Calif.).

5th Circuit Reinstates University Officer's Gender Bias Claims

anonymous@localhost.com (Liz Barrett) — Thu, 23 May 2013 17:20:00 -0400

NEW ORLEANS - The Fifth Circuit U.S. Court of Appeals on May 21 reinstated a university police department employee's gender bias suit, finding that it was possible that the department created a trail of negative reviews in the employee's file in response to a bias suit it believed she would soon file (Martha Helen Haire v. Board of Supervisors of Louisiana State University Agricultural and Mechanical College, No. 12-30290, 5th Cir.; 2013 U.S. App. LEXIS 10245).

5th Circuit Reinstates University Officer's Gender Bias Claims

anonymous@localhost.com (Liz Barrett) — Thu, 23 May 2013 17:20:00 -0400

9th Circuit: Student Loan Debt Discharge Proper; Debtor Acted In Good Faith

anonymous@localhost.com (Liz Barrett) — Thu, 23 May 2013 17:20:00 -0400

SAN FRANCISCO - A panel of the Ninth Circuit U.S. Court of Appeals on May 22 reversed a district court and held that a bankruptcy court's decision that a debtor was entitled to discharge of his student loan debt was proper (Michael Eric Hedlund v. The Educational Resources Institute Inc., No. 12-35258, Chapter 7, 9th Cir.; 2013 U.S. App. LEXIS 10294).

Panel: Fact Issues Preclude Judgment On Whether Negligence Claim Is Time-Barred

anonymous@localhost.com (Liz Barrett) — Thu, 23 May 2013 17:20:00 -0400

SEATTLE - The Ninth Circuit U.S. Court of Appeals on May 22 found that genuine issues of material fact preclude summary judgment on the question of whether the statute of limitations bars an insurer subrogee's negligence claim arising from a 2004 fire that caused $3,267,861 in damages to the Blue and Red Trains of the Seattle Monorail (Affiliated FM Insurance Co. v. LTK Consulting Services Inc., No. 12-35497, 9th Cir.; 2013 U.S. App. LEXIS 103160).

9th Circuit: Consumer Claims In Debit Card Fees Case Preempted By Act

anonymous@localhost.com (Liz Barrett) — Thu, 23 May 2013 17:20:00 -0400

SAN FRANCISCO - Dismissal of a consumer's class action lawsuit against Bank of America NA over fees paid as part of its debit card program was proper because the consumer's claims are preempted by the National Bank Act (NBA), a Ninth Circuit U.S. Court of Appeals panel ruled May 22 (Tyrone L. Robinson v. Bank of America NA, No. 11-3939, 9th Cir.; 2013 U.S. App. LEXIS 10322).

9th Circuit: Consumer Claims In Debit Card Fees Case Preempted By Act

anonymous@localhost.com (Liz Barrett) — Thu, 23 May 2013 17:20:00 -0400

Federal Judge: Coverage Is Barred By CGL Policy's Professional Services Exclusion

anonymous@localhost.com (Liz Barrett) — Thu, 23 May 2013 17:20:00 -0400

LAS VEGAS - A Nevada federal judge on May 20 ruled that a commercial general liability insurer properly denied coverage pursuant to a professional services exclusion, granting the CGL's insurer's motion for summary judgment in a professional liability insurer's lawsuit seeking equitable contribution for lawsuits arising from a three-vehicle accident that was allegedly caused by a defective median (Beazley Insurance Co. v. American Economy Insurance Co., et al., No. 2:12-CV-01720-JCM-VCF; D. Nev.; 2013 U.S. Dist. LEXIS 71699).

Louisiana Appellate Panel Affirms Defense Judgment In Mineral Estate Lawsuit

anonymous@localhost.com (Liz Barrett) — Thu, 23 May 2013 14:05:00 -0400

SHREVEPORT, La. - A divided Second Circuit Louisiana Court of Appeal panel on May 22 affirmed summary judgment against a plaintiff in a declaratory judgment action seeking to affirm ownership of a mineral estate in a land sale (Claudia Simone Franklin v. Camterra Resources Partners Inc., et al., No. 48,021, La. App., 2nd Cir.).

Directors, Officers: Shareholder Fails To Show That Presuit Demand Is Excused

anonymous@localhost.com (Liz Barrett) — Thu, 23 May 2013 14:05:00 -0400

DENVER - Directors and officers of a company being sued in a shareholder derivative lawsuit moved to dismiss the suit in a Colorado federal court on May 20, arguing that the shareholder failed to plead that presuit demand upon the company's board of directors is excused (John Seni, Derivatively on Behalf of CIBER, Inc. v. David C. Peterschmidt, et al., No. 12-cv-00320, D. Colo.).

Defendant Dismissed From Trademark Case On Jurisdiction Grounds

anonymous@localhost.com (Liz Barrett) — Thu, 23 May 2013 14:05:00 -0400

DETROIT - A trademark and patent infringement dispute over the manufacture and sale of "smart" vehicles will proceed with one less defendant, a Michigan federal judge ruled May 22 (Daimler AG v. Des Moines Motors Inc. et al., No. 11-13588, E.D. Mich.).

Judge Orders Company To Pay Attorney Fees In Chinese Drywall Litigation

anonymous@localhost.com (Liz Barrett) — Thu, 23 May 2013 14:05:00 -0400

NEW ORLEANS - The federal judge in Louisiana presiding over the Chinese drywall multidistrict litigation on May 21 ordered drywall manufacturer Knauf Plasterboard Tianjin (KPT) to pay $11,435,000 toward attorney fees due under a previously announced settlement agreement (In re: Chinese-Manufactured Drywall Products Liability Litigation, No. 2:09md02047, E.D. La.).

Elpida Foreign Representatives Seek OK Of Micron's 200B Yen Reorganization Offer

anonymous@localhost.com (Liz Barrett) — Thu, 23 May 2013 14:05:00 -0400

WILMINGTON, Del. - The foreign representatives of bankrupt computer chip maker Elpida Memory Inc. on May 22 moved in the U.S. Bankruptcy Court for the District of Delaware for an order enforcing Micron Technology Inc.'s 200 billion yen Japanese reorganization plan for the company (In Re: Elpida Memory Inc., No. 12-10947, Chapter 15, D. Del. Bkcy.).

Magistrate Judge Severs All But 1 Doe In File-Sharing Case

anonymous@localhost.com (Liz Barrett) — Thu, 23 May 2013 14:05:00 -0400

SAVANNAH, Ga. - A Georgia federal magistrate judge on May 20 granted in part a copyright owner's motion for expedited discovery in a BitTorrent file-sharing case, but only as to one of the 31 alleged Doe infringers, severing the rest (Voltage Pictures LLC v. Does 1-31, No. 4:13-cv-00037, S.D. Ga.; 2013 U.S. Dist. LEXIS 71233).

3rd Circuit: Debtor's Change In Tax Status Not Property; Transfer Not Fraudulent

anonymous@localhost.com (Liz Barrett) — Thu, 23 May 2013 14:05:00 -0400

PHILADELPHIA - A panel of the Third Circuit U.S. Court of Appeals on May 21 vacated and remanded a ruling that a debtor could not treat its parent company's change in corporate tax status, which changed the debtor's tax obligation, as a fraudulent transfer (The Majestic Star LLC v. Barden Development Inc., et al. $(In Re: The Majestic Star Casinio LLC$), No. 12-3201, Chapter 11, 3rd Cir.; 2013 U.S. App. LEXIS 10186).

Federal Judge Denies Request To Remand Wrongful Foreclosure Suit

anonymous@localhost.com (Liz Barrett) — Thu, 23 May 2013 14:05:00 -0400

DETROIT - A federal judge in Michigan on May 21 denied a motion to remand filed by consumers who brought a wrongful foreclosure suit, finding that there is no basis to remand the case because diversity jurisdiction remains despite the dismissal of federal claims (Daniel Cadez Jr., et al v. Saxon Mortgage Services Inc., et al., No. 13-10772, E.D. Mich.; 2013 U.S. Dist. LEXIS 71601).

States, Penguin Settle E-Books Price-Fixing Litigation; Apple Set For Trial

anonymous@localhost.com (Liz Barrett) — Thu, 23 May 2013 14:05:00 -0400

NEW YORK - Texas and several other states and territories and classes of purchasers have reached an agreement with Penguin Group (USA) Inc. on allegations that several publishers and Apple Inc. conspired to fix prices of electronic books, according to a May 22 letter filed with the federal judge in New York overseeing the multidistrict litigation (In re: Electronic Books Antitrust Litigation $(All Actions$), No. 11 MD 2293, S.D. N.Y.; State of Texas, et al. v. Penguin Group $(USA$) Inc., et al., No. 12 Civ. 3394, S.D. N.Y.)

States, Penguin Settle E-Books Price-Fixing Litigation; Apple Set For Trial

anonymous@localhost.com (Liz Barrett) — Thu, 23 May 2013 14:05:00 -0400

8th Circuit Affirms Rulings Dismissing Foreclosure Suit, Denying Remand

anonymous@localhost.com (Liz Barrett) — Thu, 23 May 2013 14:05:00 -0400

ST. LOUIS - A panel of the Eighth Circuit U.S. Court of Appeals on May 22 affirmed a federal judge in Minnesota's refusal to remand a wrongful foreclosure action after finding that a law firm was fraudulently joined to defeat complete diversity and upheld the decision to dismiss the suit because the "show me the note" theory does not state a valid claim for relief under Minnesota law (Jerry T. Vang, et al. v. PNC Mortgage Inc., et al., No. 12-2501, 8th Cir.; 2013 U.S. App. LEXIS 10281).