NEW YORK - The Second Circuit U.S. Court of Appeals on May 2 affirmed a federal court's finding that the attacks on the World Trade Center (WTC) on Sept. 11, 2001, constituted an act of war, allowing the defendants in a Comprehensive Environmental Response, Compensation, and Liability Act lawsuit to raise the defense against claims seeking reimbursement for cleanup costs of toxic dust (In Re: September 11 Litigation: Cedar & Washington Associates, LLC v. The Port Authority of New York and New Jersey, et al., No. 10-4197, 2nd Cir.; 2014 U.S. App. LEXIS 8293).
INDIANAPOLIS - A fact finder could conclude that an insurer's decision to go to trial and risk excess judgment, rather than offer the policy limits or reserves to settle, constituted bad faith, an Indiana federal judge found May 5, partly denying the insurer's motion for summary judgment (Randall L. Woodruff v. American Family Mutual Insurance Co., No. 1:12-cv-00859, S.D. Ind.; 2014 U.S. Dist. LEXIS 62038).
SAN FRANCISCO - A federal judge on May 5 denied summary judgment to The Hershey Co. on a consumer's class claim that Hershey's use of the term antioxidant on its product labels violates the California unfair competition law (UCL) and other laws after finding that the consumer alleges that he read and relied on the antioxidant labels when buying Hershey products (Leon Khasin v. The Hershey Company, No. 12-1862, N.D. Calif.; 2014 U.S. Dist. LEXIS 62070).
PHILADELPHIA - In reversing a lower court, a Third Circuit U.S. Court of Appeals panel on May 6 held that health care providers' direct and derivative claims fall outside the scope of an arbitration agreement with a health insurance provider and thus the claims at issue are not subject to arbitration (CardioNet Inc., et al. v. CIGNA Health Corp., No. 13-2496, 3rd Cir.; 2014 U.S. App. LEXIS 8468).
NEW ORLEANS - A Louisiana federal judge on May 2 declined to certify a class of grocery store consumers suing over the chain's failure to truncate credit card expiration dates on receipts after determining that a class action is not a superior method to adjudicate the case (Robert Ticknor, et al. v. Rouse's Enterprises, LLC, No. 12-1151, E.D. La.; 2014 U.S. Dist. LEXIS 61371).
HOUSTON - A health benefits plan is entitled to an equitable lien over funds that a participant received in a third-party settlement pursuant to the plan's reimbursement/subrogation provision under the Employee Retirement Income Security Act, a federal judge in Texas ruled May 2 in granting the plan's motion for summary judgment (Humana Health Plan, Inc. v. Patrick Nguyen, et al., No. H-13-1793, S.D. Texas; 2014 U.S. Dist. LEXIS 61239).
NEW ORLEANS - A unanimous Fifth Circuit U.S. Court of Appeals panel vacated an order denying attorney-client privilege protection to a memorandum created by in-house counsel for Exxon Mobil Corp. in a long-simmering discovery dispute arising from personal injury litigation for alleged exposure to naturally occurring radioactive material in the scale on oil field pipe; the order remanding the injunctive relief action to the U.S. District Court for the Eastern District of Louisiana was entered May 6 (Exxon Mobil Corp. v. Clarence Hill, et al., No. 13-30830, 5th Cir.).
SAN FRANCISCO - A California man cannot pursue wrongful foreclosure claims against a mortgage company under California's unfair competition law (UCL) and the Fair Debt Credit Reporting Act (FCRA) because the claims have already been litigated in a state court and lack merit, a federal judge held May 5 (Robert H. O'Connor v. Nationstar Mortgage, LLC, No. 13-05874, N.D. Calif.; 2014 U.S. Dist. LEXIS 62067).
SAN FRANCISCO - A California federal judge properly granted three trademark infringement defendants judgment as a matter of law (JMOL) following an adverse jury verdict, the Ninth Circuit U.S. Court of Appeals ruled May 6 (Falcon Stainless Inc. v. Rino Companies Inc., et al., No. 11-56863 9th Cir.).
NEW YORK - The Second Circuit U.S. Court of Appeals on May 6 affirmed that a lower court correctly remanded to state court a dispute over the failure to return surplus distributions to a not-for-profit corporation that provided comprehensive health services to individuals primarily made up of Medicaid patients, holding that the defendant failed to demonstrate that removal was proper (James J. Veneruso, as temporary receive for Community Choice Health Plan of Westchester Inc., v. Mount Vernon Neighborhood Health Center, No. 13-1572, 2nd Cir.; 2014 U.S. App. LEXIS 8449).
NEW ORLEANS - In an unpublished opinion, the Fifth Circuit U.S. Court of Appeals on May 6 affirmed that the State of Louisiana must return to the federal government an excess of nearly $240 million it received in Medicaid funds for charity care (State of Louisiana Department of Health and Hospitals v. U.S. Department of Health and Human Services, et al., No. 13-30240, 5th Cir.; 2014 U.S. App. LEXIS 8520).
WASHINGTON, D.C. - The chairman of the International Centre for Settlement of Investment Disputes (ICSID) Administrative Council on May 5 rejected a proposal made by the Bolivarian Republic of Venezuela to disqualify two arbitrators in a dispute with various investors over oil projects, finding nothing showing a lack of impartiality (ConocoPhillips Petrozuata B.V., et al. v. Bolivarian Republic of Venezuela, No. ARB/07/30, ICSID).
WILMINGTON, Del. - A creditor in the Chapter 11 bankruptcy of AFA Investment Inc., the maker of the "pink slime" that is added to some ground beef, on May 7 filed an answer in the U.S. Bankruptcy Court for the District of Delaware contending that AFA is not entitled to recover $93,575.03 that it alleges was fraudulently transferred prior to the bankruptcy filing (AFA Investment Inc. v. Marten Transport Services Ltd. [In Re: AFA Investment Inc.], No. 12-11127, Chapter 11, D. Del. Bkcy.).
KANSAS CITY, Mo. - A class complaint accusing a newspaper publisher of overcharging certain subscribers belongs in federal, not state, court pursuant to Class Action Fairness Act (CAFA) jurisdiction, a Missouri federal judge ruled May 6 (Elizabeth O'Shaughnessy, et al. v. Cypress Media, L.L.C., No. 13-947, W.D. Mo.; 2014 U.S. Dist. LEXIS 62212).
LAKE CHARLES, La. - A unanimous Third Circuit Louisiana Court of Appeal panel on May 7 affirmed summary judgment against surface estate owners seeking damages from oil and natural gas operators for allegedly failing to restore the surface estate; the panel applied the subsequent purchaser doctrine and concluded that the plaintiffs lack standing to seek damages for alleged injuries before they purchased the subject land (Carlos Boone, et uxor v. ConocoPhillips Co., et al., No. 13-1106, La. App., 3rd Cir.).
BOSTON - The bankruptcy trustee for New England Compounding Pharmacy (also known as New England Compounding Center, or NECC) on May 6 filed motions formalizing a previously announced $100 million settlement with the company, its insiders and some of its insurers to pay patients who were injured or killed by fungal meningitis allegedly caused by the pharmacy's contaminated steroid (In Re: New England Compounding Pharmacy, Inc., No. 12-19882, D. Mass. Bkcy.).
HUNTINGTON, W.Va. - Finding that a retirement community's declaratory complaint against a commercial liability insurer would likely be resolved by a pending, previously filed Pennsylvania state court case, a West Virginia federal judge on May 2 granted an insurer's motion to stay the present matter pending resolution of that case (Midland Meadows Senior Living LLC v. First Mercury Insurance Co., et al., No. 3:13-cv026563, S.D. W.Va.; 2014 U.S. Dist. LEXIS 61185).
ATLANTA - The 11th Circuit U.S. Court of Appeals on May 6 disagreed with a district court's ruling that amendment of a complaint alleging that Wells Fargo Bank N.A. aided and abetted a Ponzi scheme would be futile, vacating the lower court's decision (Jonathan E. Perlman v. Wells Fargo Bank N.A., No. 12-14345, 11th Cir.).
CENTRAL ISLIP, N.Y. - A New York federal judge on May 6 denied a New York insured's motion to remand a breach of contract lawsuit arising from Superstorm Sandy damage (Elliot Leibowitz v. Selective Flood, No. 13-CV-5642[JS][ARL], E.D. N.Y.; 2014 U.S. Dist. LEXIS 62622).
NEW YORK - A creditor of bankrupt Eastman Kodak Co. on May 6 filed a brief in the U.S. Bankruptcy Court for the Southern District of New York, objecting to a settlement agreement between Kodak and both federal and state environmental authorities on grounds that the $49 million trust fund established by the agreement is "grossly unfair" (In Re: Eastman Kodak Company, No. 12-10202, Chapter 11, S.D. N.Y. Bkcy.).
DETROIT - Ambac Assurance Corp. on May 6 filed a brief in the U.S. Bankruptcy Court for the Eastern District of Michigan objecting to discovery requests made by the bankrupt City of Detroit on grounds that they "simply have no applicability" to it as a bond insurer (In Re: City of Detroit, No. 13-53846, Chapter 9, E.D. Mich. Bkcy.).