MADISON, Wis. - A judge acted within his discretion in reversing a previous judge's erroneous decision to grant reconsideration in an asbestos action, a Wisconsin appeals court held Oct. 30 (Alan J. Delsart, et al. v. Albany Felt Co. Inc., No. 2008CV2578, Wis. App.; 2012 Wisc. App. LEXIS 850).
CINCINNATI - A panel of the Sixth Circuit U.S. Court of Appeals on Oct. 30 reversed a ruling by a district court and held that a debtor's lawsuit related to a traffic accident that occurred prior to his filing for bankruptcy was not barred by judicial estoppel because his failure to include the action in his list of assets was inadvertent (Michael Stephenson v. Matthew Malloy, No. 11-1671, Chapter 7, 6th Cir.; 2012 U.S. App. LEXIS 22349).
SAN DIEGO - A California candy company was successful in arguing two out of its 62 affirmative defenses in a wage-and-hour class suit over its practices related to rounding up or down employees' punched in hours, a California appellate panel ruled Oct. 29 (See's Candy Shops, Inc. v. The Superior Court of San Diego County, No. D060710, Calif. App., 4th Dist., Div. 1; 2012 Cal. App. LEXIS 1132).
NEW ORLEANS - A panel of the Fifth Circuit U.S. Court of Appeals on Oct. 29 ruled that a bankruptcy court properly confirmed a Chapter 13 bankruptcy plan and that it was not an indication of bad faith on the debtors' part that they did not use their monthly Social Security income to pay their creditors (S.J. Beaulieu Jr. v. Benjamin Ragos, et al. [In the Matter of: Benjamin Ragos], No. 11-31046, Chapter 13, 5th Cir.; 2012 U.S. App. LEXIS 22334).
WHEELING, W.Va. - Attorney fees a railroad spent fighting allegedly fraudulent asbestos claims would not be litigated during trial and are not discoverable, a federal judge held Oct. 29 in denying a motion to compel (CSX Transportation Inc. v. Robert V. Gilkison, et al., No. 05-202, N.D. W.Va.; 2012 U.S. Dist. LEXIS 154788).
CLEVELAND - A federal judge in Ohio on Oct. 30 granted Deutsche Bank National Trust Co.'s motion to dismiss a suit in which a borrower sought to nullify a mortgage that was assigned to Deutsche Bank after the failure of the bank that originally issued the loan, ruling that the borrower does not have standing to challenge the assignment of the mortgage (Paul Popov v. Deutsche Bank National Trust Co., et al., No. 12-00170, N.D. Ohio; 2012 U.S. Dist. LEXIS 155498).
SAN DIEGO - After finding that numerous claims asserted by a time-share owner who alleged that resort properties contained mold and water damage failed, a California federal judge on Oct. 30 granted summary judgment in favor of a group of companies that own the resorts on all of the claims asserted against them (Hermengildo ["Jay"] Martinez, on his own behalf and on behalf of all others similarly situated v. The Welk Group, et al., No. 09-2883, S.D. Calif.; 2012 U.S. Dist. LEXIS 155550).
ALBANY, N.Y. - The New York Court of Appeals on Oct. 30 affirmed an appellate court order that the state's Department Of Health failed, and will likely continue to fail, to timely respond to requests for emergency medical assistance benefits. The high court agreed that the "likely to recur" mootness doctrine should be applied to the plaintiff's claim seeking damages for lack of notification of benefits availability (Barbara Coleman, etc., v. Richard F. Daines, M.D., etc., No. 152, N.Y. App.; 2012 N.Y. LEXIS 3263).
MOBILE, Ala. - An Alabama federal judge on Oct. 29 denied a motion for class certification in a complaint filed by students alleging that they were deprived of their constitutional rights when they were punished with long-term suspensions without first receiving notice or a fair hearing (M.R., et al. v. Board of School Commissioners of Mobile County, No. 11-245, S.D. Ala.; 2012 U.S. Dist. LEXIS 154500).
SAN ANTONIO - The Fourth District Texas Court of Appeals on Oct. 31 upheld a defense verdict in a construction defects action, concluding that the trial court did not err by allowing the verdict to stand after it was revealed that one of the jurors had previously been convicted of theft (BZ Tire Shop v. Brian Brite, et al., No. 04-11-00670-CV, Texas App., 4th Dist.; 2012 Tex. App. LEXIS 8977).
SEATTLE - Even though a Washington federal judge on Oct. 29 determined that an insured was permitted to maintain a bad faith claim despite the previous dismissal of a breach of contract claim, the judge held that the claim failed because the plaintiff "failed to raise a genuine issue of material fact as to the harm element" of the claim (Robert E. Nesbitt v. Progressive Northwestern Insurance Co., No. 2:11-cv-02117, W.D. Wash.; 2012 U.S. Dist. LEXIS 155502).
ALEXANDRIA, Va. - Less than a year after the Fourth Circuit U.S. Court of Appeals expressed doubt over the legality of AdWords, Google Inc. on Oct. 31 settled claims that its advertising program facilitates trademark infringement (Rosetta Stone Ltd. v. Google Inc., No. 09-736, E.D. Va.). View related prior history, 2012 U.S. App. LEXIS 7082.
AUSTIN, Texas - Novartis Pharmaceuticals Corp. agreed to pay $19.9 million to Texas to settle claims that the company marketed its eczema drug Elidel for off-label uses about a month before a Pennsylvania federal judge dismissed without prejudice the whistle-blower lawsuit from which the claims stemmed, according to an Oct. 30 announcement by the Texas Attorney General's Office. Subscribers may view the settlement agreement available within the full article.
PRESCOTT, Ariz. - The Federal Deposit Insurance Corp. has not met its burden regarding the amount of a deficiency owed by borrowers, a federal judge in Arizona ruled Oct. 31, denying the motion for summary judgment by the FDIC, which, as the receiver for a failed bank, sued to recover more than $18 million from the borrowers pursuant to their defaulted loans (Federal Deposit Insurance Corp. v. Albert Wiseman, et al., No. 11-08157, D. Ariz.; 2012 U.S. Dist. LEXIS 155986).
WASHINGTON, D.C. - A Second Circuit U.S. Court of Appeals' ruling that a pension fund has standing to assert claims for relief on behalf of mortgage-backed securities purchasers even though the pension fund lacks standing to assert the claims on its own behalf directly conflicts with U.S. Supreme Court and First Circuit U.S. Court of Appeals precedent, Goldman Sachs & Co. and two of its subsidiaries argue in an Oct. 26 petition for writ of certiorari (Goldman, Sachs & Co., et al. v. NECA-IBEW Health & Welfare Fund, No. n/a, U.S. Sup.). A complimentary copy of the writ of certiorari is available in the pdf attached below.
NEW ORLEANS - The Fifth Circuit U.S. Court of Appeals on Oct. 29 affirmed financial advisory firm Mutual Concepts Inc.'s $1 million judgment against First National Bank of Omaha (FNB) but reversed an award of attorney fees in a suit over a credit card marketing contract, finding that Nebraska law, not Texas law, controls the dispute (Mutual Concepts Inc. v. First National Bank of Omaha, No. 11-20908, 5th Cir.; 2012 U.S. App. LEXIS 22337).
LOS ANGELES - A holding company is not liable for damages alleged by the California insurance commissioner in a $4.33 billion suit over a conspiracy to fraudulently obtain the assets of failed insurance company Executive Life Insurance Co. (ELIC), a federal jury in California found Oct. 29 (John Garamendi, et al. v. Altus Finance S A, et al., No. 99-02829, C.D. Calif.). Subscribers may view the available within the full article.
CHICAGO - Shareholders have properly shown that an operator of for-profit professional schools and colleges and certain of its executive officers violated federal securities laws by misrepresenting the company's business and financial condition, a federal judge in Illinois ruled Oct. 30 (Thurman Ross v. Career Education Corp., et al., No. 12-276, N.D. Ill.; 2012 U.S. Dist. LEXIS 155037).
BIRMINGHAM, Ala. - A federal judge in Alabama on Oct. 29 dismissed with prejudice a developer's lawsuit against an Alabama city after finding that there was no evidence to support the plaintiff's claim that the city's clearing and grubbing of an adjoining parcel of land violated the Clean Water Act (CWA) by causing excessive storm water runoff (Woods Knoll LLC v. City of Lincoln, Ala., No. 09-CV-1219-EH, N.D. Ala.; 2012 U.S. Dist. LEXIS 154592).
SAN FRANCISCO - An apartment complex fails to allege actionable conduct by its lender under the California unfair competition law (UCL),Cal. Bus. & Prof. Code § 17200, but a loan document purporting to exclude liability goes too far and cannot bar the claims, a federal judge held Oct. 26 in dismissing the claims with leave to amend (Three Crown Apartments v. PNC Bank, No. 12-3579, N.D. Calif.; 2012 U.S. Dist. LEXIS 154879).
BRIDGEVIEW, Ill. - A statute of limitations within a force-placed insurance policy did not bar a homeowner's breach of contract claim, an Illinois appeals panel ruled Oct. 26, citing the insurer's failure to explicitly deny coverage and to inform the insured of the amount of time tolled (Olla Burress-Taylor v. American Security Insurance Co., et al., No. 1-11-0554, Ill. App., 1st Dist.; 2012 Ill. App. LEXIS 879).
SAN JOSE, Calif. - A federal judge in California on Oct. 29 refused to allow a woman's request to dismiss without prejudice her lawsuit against Wells Fargo Bank N.A. and a title company and instead granted the defendants' motion to dismiss the action, saying the plaintiff's causes of action are preempted by the Home Owner's Loan Act (HOLA) (Arcelia G. Gonzalez v. Wells Fargo Bank, et al., No. 12-cv-03842 EJD, N.D. Calif.; 2012 U.S. Dist. LEXIS 154851).
CHICAGO - An Illinois federal judge on Oct. 29 refused to dismiss an insurer's contribution claims against another insurer regarding the defense and indemnity of a mutual insured in an underlying construction defect action (Hartford Casualty Insurance Co. v. Construction Builders in Motion Inc., et al., No. 11-7498, N.D. Ill.; 2012 U.S. Dist. LEXIS 154445).
SAN FRANCISCO - A woman whose tablet computer underwent repairs and was given an extended warranty lacks sufficient injury to pursue California unfair competition law (UCL) Cal. Bus. & Prof. Code § 17200 claims, a federal judge held Oct. 26 (Tina Baba, Ray Ritz and Jon Taylor, et al. v. Hewlett Packard Co., No. 09-5946, N.D. Calif.; 2012 U.S. Dist. LEXIS 154326).
DENVER - Genuine issues of fact exist as to whether a contractor's arbitration award, if any, falls within a commercial general liability (CGL) insurance policy's coverage and is not excluded, a Colorado federal judge found Oct. 29 (American Family Insurance Co. v. Apartment Builders LP and Roessner & Roessner Inc., No. 11-01380, D. Colo.; 2012 U.S. Dist. LEXIS 154737).