WEST PALM BEACH, Fla. - A shareholder on June 11 responded to a motion to dismiss his derivative lawsuit in a Florida federal court, claiming that he had sufficiently pleaded that presuit demand on a board of directors would have been futile (Jack Long, Derivatively on Behalf of Office Depot, Inc. v. Steve Odland, et al., No. 11-cv-80702, S.D. Fla.).
JACKSONVILLE, Fla. - Despite a jury finding that a plaintiff's decedent was addicted to cigarettes and a stipulation that smoking was the cause of death from lung cancer, the jury's finding that the decedent was not a member of a class of Florida smokers and could not recover must stand, a Florida federal judge ruled June 11 (Anita Young McCray, et al. v. R.J. Reynolds, et al., No. 3:09-cv-11895, M.D. Fla., Jacksonville Div.; 2012 U.S. Dist. LEXIS 80382).
MIAMI - A federal judge in Florida on June 12 denied the Securities and Exchange Commission's request for de facto immunity from depositions under Federal Rule of Civil Procedure 30(b)(6) in a lawsuit it initiated against an attorney accused of making false public statements in connection with the purchase of penny stocks because the agency can still raise objections over questions related to privileged information by asserting protections available to all litigants (Securities and Exchange Commission v. Stewart A. Merkin, No. 11-23585-CIV-GRAHAM/GOODMAN, S.D. Fla.; 2012 U.S. Dist. LEXIS 80922).
MIAMI - State Farm Mutual Automobile Insurance Co. must produce documents that were generated after it denied coverage of defendants' claim but does not need to turn over documents from that same time period the company contends are privileged, a federal magistrate judge in Florida ruled June 7 in granting in part and denying in part the company's motion for reconsideration and clarification (State Farm Mutual Automobile Insurance Company v. Veronica Baldassini, et al., No. 11-24565-CIV-ALTONAGA-SIMONTON, S.D. Fla.; 2012 U.S. Dist. LEXIS 79037).
TAMPA, Fla. - Although a former 7-Eleven Inc. employee established a prima facie case of pregnancy discrimination by her employer, the company provided a legitimate, nondiscriminatory reason for firing her, a Florida federal judge held June 7 in granting 7-Eleven summary judgment on all of the woman's claims (Katie M. Selkow v. 7-Eleven, Inc., No. 8:11-cv-456, M.D. Fla.; 2012 U.S. Dist. LEXIS 79265).
PALM BEACH, Fla. - Luxury home builder Leonard Albanese on June 8 filed for Chapter 11 bankruptcy in the U.S. Bankruptcy Court for the Southern District of Florida, listing more than $46.24 million in liabilities and $4.34 million in assets (In Re: Leonard Albanese, No. 12-24122, Chapter 11, S.D. Fla. Bkcy.).
ATLANTA - A panel of the 11th Circuit U.S. Court of Appeals on June 6 ruled that collateral estoppel and res judicata do not preclude a state department of revenue from pursuing, post-bankruptcy, a claim for nondischargeable child support obligations from a debtor (State of Florida, Department of Revenue v. Michael Davis (In Re: Michael Davis), No. 11-15040, Chapter 13, 11th Cir.; 2012 U.S. App. LEXIS 11398).
ORLANDO, Fla. - A commercial general liability insurer has a duty to defend its insureds in an underlying negligent construction lawsuit, a Florida federal judge ruled June 5, finding that the alleged "property damage" occurred during the policy period (Axis Surplus Insurance Co. v. Contravest Construction Co., et al., No. 11-320, M.D. Fla.; 2012 U.S. Dist. LEXIS 77489).
DAYTONA BEACH, Fla. - A Fifth District Florida Court of Appeal panel on June 1overturned a decision to apportion 100 percent of a medical malpractice settlement to the mother of a teenager who died at a hospital, concluding that the girl's father was not afforded due process (Kenneth Walker v. Beatrice Bailey, No. 5D11-2416, Fla. App., 5th Dist.; 2012 Fla. App. LEXIS 8812).
FORT LAUDERDALE, Fla. - A Florida jury apportioned $54.9 million in punitive damages among the nation's four largest tobacco companies on May 31 in an Engle progeny case over the death of a cement worker who smoked as many as three packs of cigarettes a day (In re Engle Progeny Cases Tobacco Litigation, No. 08-80000, Marvine Calloway v. R.J. Reynolds Tobacco Co. et al., No. 08-021770, Fla. Cir., 17th Judicial Cir.).
MIAMI - A Florida federal judge on May 31 granted a cruise line's motion to compel arbitration of putative class action claims asserted by employees who allege that they were not paid wages, finding that the jurisdictional requirements for compelling arbitration under the United Nations Convention on Recognition and Enforcement of Foreign Arbitral Awards were met (Kenneth Downer, et al. v. Royal Caribbean Cruises Ltd., No. 11-21948, S.D. Fla.; 2012 U.S. Dist. LEXIS 75233).
TALLAHASSEE, Fla. - Answering five certified questions from the 11th Circuit U.S. Court of Appeals, the Florida Supreme Court on May 31 determined that, under Florida law, first-party claims are actually statutory bad faith claims that must be brought under Florida Statutes Section 624.155, and an insured cannot bring a claim against its insurer for failure to comply with the language and type-size requirements established by Florida Statutes Section 627.701(4)(a) (QBE Insurance Corporation, v. Chalfonte Condominium Apartment Association Inc., No. SC09-441, Fla. Sup.; 2012 Fla. LEXIS 1063).
TAMPA, Fla. - A Florida federal judge on May 25 denied a health plan's motion for attorney fees in a denial of benefits case, saying the defendant showed no bad faith on the part of the plaintiff or the plaintiff's attorneys (Kristy Schwade v. Total Plastics Inc., No. 10-2436, M.D. Fla.; 2012 U.S. Dist. LEXIS 73203).
TALLAHASSEE, Fla. - A Florida appeals panel on May 24 reversed and remanded a $6.25 million judgment against an insurer in a coverage dispute arising from a teenager's alleged injury at a fundraiser (Interstate Fire & Casualty Company v. Tatiana Abernathy, et al., No. 1D11-1905, Fla. App., 1st Dist.; 2012 Fla. App. LEXIS 8278).
FORT PIERCE, Fla. - A federal judge in Florida on May 23 certified a class and preliminarily granted partial approval of a settlement in a suit in which a defendant was alleged to have violated the Fair Debt Collection Practices Act (FDCPA) in its attempt to collect a debt purportedly owed to a third-party mortgage receiver, but he rejected the proposed settlement's requirement for class members to submit claim forms (Malka Andes v. G. Moss and Associates, LLP, No. 11-14295, S.D. Fla.; 2012 U.S. Dist. LEXIS 71661).
MIAMI - A Florida federal judge on May 22 granted an ex parte motion for entry of a temporary restraining order (TRO) against a second group of unknown defendants that Gucci America Inc. says are operating websites selling counterfeit Gucci products (Gucci America Inc. v. 2replicawatches.com, et al., No. 1:12-cv-21154, S.D. Fla.; 2012 U.S. Dist. LEXIS 71367).
WEST PALM BEACH, Fla. - Allegations of copyright infringement by a pro se plaintiff were rejected by a Florida federal judge May 23 (John C. Dixon v. Sony Corporation of America, No. 12-60160, S.D. Fla.; 2012 U.S. Dist. LEXIS 71658).
TALLAHASSEE, Fla. - The First District Florida Court of Appeal on May 23 reversed a state agency's determination that a Medicaid waiver program beneficiary should receive a lower level of home-based benefits than he requires. The appeals court concluded that Florida Agency for Persons with Disabilities erred in its interpretation of the rules regarding assignment of disabled persons into state-designed benefit tiers (T.S. v. Agency for Persons with Disabilities, No. 1D11-5563, Fla. App., 1st Dist.; 2012 Fla. App. LEXIS 8108).
TAMPA, Fla. - Claiming that plaintiffs in a shareholder derivative lawsuit failed to show that a majority of the members of a board of directors are not independent, certain directors and officers of a medical instruments company said in a Florida federal court on May 21 that the shareholders' suit should be dismissed (Bruce A. Arbit, derivatively on behalf of Bovie Medical Corp. v. Andrew Makrides, et al., No. 11-cv-02020, M.D. Fla.). Subscribers may view the brief in support of the motion to dismiss available within the full update.
NEW ORLEANS - An arbitrator exceeded his powers when he ordered that an online school and a former student must submit to class arbitration in a dispute over the validity of the degrees provided by the school, the Fifth Circuit U.S. Court of Appeals ruled May 18, reversing the order and remanding with instructions to refer the parties to bilateral arbitration (Jeffrey H. Reed v. Florida Metropolitan University, Incorporated, et al., No. 11-50509, 5th Cir.; 2012 U.S. App. LEXIS 10048).
MIAMI - A federal judge in Florida on May 16 certified a nationwide class and 11 regional subclasses of PNC Bank N.A. account holders accusing the bank of using a software scheme to illegally collect excessive overdraft fees (In re Checking Account Overdraft Litigation, No. 09-md-2036, S.D. Fla.).
DAYTONA Beach, Fla. - An insured's failure to submit to an examination under oath (EUO) did not prejudice an insurer, a Florida appeals panel held May 18, reversing and remanding a lower court's ruling in favor of the insurer in a dispute over Hurricane Charley property damage (Whistler's Park Inc. v. The Florida Insurance Guaranty, etc., No. 5D10-2410, Fla. App., 5th Dist.).
FORT MYERS, Fla. - The sponsor of and participants in a Section 412(i) plan that was found to be noncompliant by the Internal Revenue Service are not entitled to a jury trial on claims that several firms that designed and administered the plan breached their fiduciary duties under Employee Retirement Income Security Act Section 502(a)(2), a federal judge in Florida ruled May 14 (Ehlen Floor Covering, Inc., et al. v. Jeffrey Lamb, et al., No. 2:07-cv-666, M.D. Fla.; 2012 U.S. Dist. LEXIS 66916).
NEW ORLEANS - A group of Florida condo owners and a real estate developer filed a joint motion in a Louisiana federal court on May 14, seeking preliminary approval of a $4.8 million settlement to fund remediation costs of units affected by defective drywall (In re: Chinese-Manufactured Drywall Products Liability Litigation, No. 2:09md02047, E.D. La.). Subscribers may view the joint motion available within the full update.
GAINESVILLE, Fla. - A Florida federal judge on May 8 granted an insurer's motion to abate three claims insofar as they relate to alleged bad faith by the insurer pending resolution of claims for declaratory judgment and breach of contract in a dispute over coverage for sexual abuse allegations against a former employee of the Roman Catholic Diocese of Savannah (John Doe v. OneBeacon America Insurance Company, No. 1:11cv275-MP-GRJ, N.D. Fla.; 2012 U.S. Dist. LEXIS 64843).