June 29, 2010

U.S. Supreme Court Grants Certiorari In Mutual Funds Litigation

WASHINGTON, D.C. - The U.S. Supreme Court on June 28 granted a petition for certiorari filed by Janus Capital Group (JCG), which argues that the Fourth Circuit U.S. Court of Appeals erred in finding that JCG can be held liable in a private action for allegedly helping to draft misleading prospectuses for a client (Janus Capital Group, Inc., et al. v. First Derivative Traders, No. 09-525, U.S. Sup.). Read more

U.S. High Court Won't Review RICO Fraud Remedies

WASHINGTON, D.C. - The U.S. Supreme Court declined June 28 to review an appellate decision upholding most of the remedies imposed on the tobacco industry by the federal judge who found it liable for a decades-long pattern of fraud and deception (Philip Morris USA, Inc. v. United States, et al., No. 09-976, U.S. Sup.; R.J. Reynolds Tobacco Co., et al. v. United States, et al., No. 09-977; United States v. Philip Morris USA, Inc., et al., No. 09-978; Altria Group, Inc. v. United States, et al., No. 09-979; British American Tobacco Ltd. v. United States, et al., No. 09-980; Tobacco-Free Kids Action, et al. v. United States, et al., No. 09-994; Lorillard Tobacco Co. v. United States, et al., No. 09-1012, U.S. Sup.). Read more

U.S. Supreme Court Denies Pfizer Certiorari In Trovan Experiment Case

WASHINGTON, D.C. - The U.S. Supreme Court on June 29 rejected Pfizer Inc.'s petition for a writ of certiorari involving the claims of Nigerians allegedly injured during a 1996 Trovan clinical trial in their country, allowing the claims to go to trial (Pfizer Inc. v. Rabi Abdullahi, et al., No. 09-34, U.S. Sup.). Read more

Cert Granted In ERISA Remedies Case Involving Cash Balance Conversion Disclosures

WASHINGTON, D.C. - The U.S. Supreme Court on June 28 granted review of a Second Circuit U.S. Court of Appeals ruling regarding remedies for violations of the Employee Retirement Income Security Act's notice and disclosure provisions in connection with a transition from a defined benefit pension plan to a cash balance pension plan (CIGNA Corporation, et al. v. Janice C. Amara, et al., No. 09-804, U.S. Sup.). Read more

High Court Agrees To Hear Case Over Arizona's Illegal Alien Employment Statute

WASHINGTON, D.C. - The U.S. Supreme Court on June 28 granted the petition for writ of certiorari in an appeal over an Arizona statute that imposes sanctions on employers who hire unauthorized aliens (Chamber of Commerce of the United States of America, et al. v. Criss Candelaria, et al., No. 09-115, U.S. Sup.). Read more

Massachusetts Federal Judge Approves Class Of Smokers In Medical Monitoring Suit

BOSTON - Plaintiffs seeking court-ordered medical monitoring from a cigarette manufacturer for lung cancer may proceed with their case as a class action on breach of warranty and unfair trade practice claims, a Massachusetts federal judge ruled June 24 in certifying the class for most of the claims presented (Kathleen Donovan, et al. v. Philip Morris USA, Inc., No. 1:06-cv-12234, D. Mass.; 2010 U.S. Dist. LEXIS 62982). Read more

Split 3rd Circuit: Unsolicited Internal Complaints Not Protected Under ERISA

PHILADELPHIA - The Third Circuit U.S. Court of Appeals on June 24 ruled 2-1 that the anti-retaliation provision of Section 510 of the Employee Retirement Income Security Act does not protect an employee's unsolicited internal complaints to management because they are not part of an "inquiry or proceeding" based on the plain meaning of the terms as used in the statute (Shirley Edwards v. A.H. Cornell and Son, Inc., et al., No. 09-3198, 3rd Cir.; 2010 U.S. App. LEXIS 12962). Read more

Alabama Man Files RICO Class Action Against Oil Spill Defendants

MOBILE, Ala. - A Shelby County, Ala., man on June 28 filed a class action lawsuit in Alabama federal court, accusing many of the companies associated with the Gulf of Mexico oil spill with engaging in a pattern of racketeering activity (State of Alabama, ex rel. Ben Chenault, et al. v. BP PLC, et al., No. 10-cv-0331, S.D. Ala.). Read more

Guilty Plea Triggers Policy's Criminal Act Exclusion, 8th Circuit Affirms

ST. PAUL, Minn. - A policy's criminal act exclusion precludes coverage for underlying injuries stemming from an incident for which the tortfeasor pleaded guilty to attempted assault in the first degree, the Eighth Circuit U.S. Court of Appeals held June 28, further finding that the insurer did not need to prove intent for the exclusion to apply (Progressive Northern Insurance Co. v. Sean David McDonough, et al., No. 09-2520, 8th Cir.; 2010 U.S. App. LEXIS 13157). Read more

Alaska Supreme Court Remands Workers' Comp Decision To Develop Findings Of Fact

ANCHORAGE, Alaska - The Alaska Supreme Court unanimously vacated an Alaska Workers' Compensation Board decision denying benefits for alleged occupational exposure to arsenic sought by a fertilizer mill worker and remanded the case to the board with orders to make appropriate findings of fact to support its conclusions; the opinion was released June 25 (Paul D. Pietro v. Unocal Corp., No. S-13500, Alaska Sup.; 2010 Alas. LEXIS 65). Read more

Court: Longshoreman's Work Falls Short Of Establishing Exposure To Asbestos

SAN FRANCISCO - Evidence that a man worked as a longshoreman at a pier where asbestos was imported is insufficient evidence of exposure absent the length of time and dates that he worked there, a California appeals court held June 23 (Marjorie Wilson, et al. v. CertainTeed Corp., No. A123710, Calif. App., 1st Dist., Div. 1; 2010 Cal. App. Unpub. LEXIS 4762). Read more

SEC Sues Portfolio Manager Associated With Bond Scam At ICP Asset Management

NEW YORK - The Securities and Exchange Commission on June 25 filed another complaint in connection with an alleged scheme to deceive investment firm ICP Asset Management LLC investors into overpaying for collateralized debt obligation (CDO) bonds, this time against an ICP portfolio manager (Securities and Exchange Commission v. Aamer Abdullah, No. 10-4957, S.D. N.Y.). Read more

Florida Federal Judge Says States Cannot Provide Briefs In Health Care Suit

PENSACOLA, Fla. - The federal judge overseeing Florida's challenge of federal health care reform litigation on June 25 said three state attorneys general and four state governors seeking to participate as "state amici" cannot participate at the motion-to-dismiss stage (State of Florida, et al. v. United States Department of Health and Human Services, et al., No. 10-91, N.D. Fla.). Read more

High Court Won't Review Cash Balance Pension Plan Ruling

WASHINGTON, D.C. - The U.S. Supreme Court on June 28 denied review of a Second Circuit U.S. Court of Appeals ruling that application of a fractional test at the time of a cash balance pension plan participant's separation from employment does not violate the minimum benefit accrual rules of the Employee Retirement Income Security Act (Michael Lonecke, et al. v. Citigroup Pension Plan, et al., No. 09-1229, U.S. Sup.). Read more

High Court Won't Review Jurisdiction In Walker Process Case

WASHINGTON, D.C. - The U.S. Supreme Court on June 28 denied review of a Second Circuit U.S. Court of Appeals ruling that the Federal Circuit U.S. Court of Appeals lacks exclusive jurisdiction over a Walker Process claim in an antitrust case brought by direct purchasers of desmopressin acetate tablets (DDAVP) who alleged that the patent holder and its licensee inflated the price of DDAVP by suppressing generic competition (Ferring B.V., et al. v. Meijer, Inc., et al., No. 09-1175, U.S. Sup.). Read more

High Court Won't Review 8th Circuit's Relevant Market Antitrust Ruling

WASHINGTON, D.C. - The U.S. Supreme Court on June 28 left standing an Eighth Circuit U.S. Court of Appeals ruling affirming the dismissal of its claims that a hospital and health insurer conspired to restrain trade and monopolize the market for cardiology procedures based on a finding that the group failed to properly identify a relevant market (Little Rock Cardiology Clinic, P.A., et al. v. Baptist Health, et al., No. 09-1183, U.S. Sup.). Read more

Supreme Court Denies Certiorari To Reporter Found Liable For Investment Advice

WASHINGTON, D.C. - The U.S. Supreme Court on June 28 denied a petition for certiorari filed by the editor of an investment publication who was found liable under federal securities laws for advisory information he published in his newsletter (Pirate Investor LLC, et al. v. United States Securities and Exchange Commission, No. 09-1176, U.S. Sup.). Read more

11th Circuit: Making Online Content Constitutes A Business At A Physical Site

ATLANTA - Finding that the production of sexually explicit online content can be classified as a business that is not allowed in a residential zone, an 11th Circuit U.S. Court of Appeals panel on June 25 reversed a lower court's opinion that the online content did not constitute an offer of adult entertainment services at a particular physical location that would violate the ordinance (Flava Works, Inc., et al v. City of Miami, FL, No. 09-11264, 11th Cir.; 2010 U.S. App. LEXIS 13033). Read more

7th Circuit Affirms, Vacates Denial Of Benefits Decision; ERISA Relief Not Clear

CHICAGO - A panel of the Seventh Circuit U.S. Court of Appeals on June 28 vacated in part and remanded a denial of benefits case, saying that although it was clear that a health maintenance organization breached its fiduciary duty, it was unclear whether the relief sought by the plaintiff was authorized by the Employee Federal Retirement Income Security Act (Deborah A. Kenseth v. Dean Health Plan Inc., No. 08-3219, 7th Cir.; 2010 U.S. App. LEXIS 13153). Read more

Government Regulator Fines Company, Brokers For Credit Default Swap Violations

WASHINGTON, D.C. - The Financial Industry Regulatory Authority (FINRA) has fined Phoenix Derivatives Group LLC, three of its brokers and four other interdealer brokerage firms $ 4.3 million "for improper communications about customers' proposed brokerage rate reductions in the wholesale credit default swap (CDS) market," according to a press release issued by FINRA on June 24. Read more

New Orleans Fisherman Files Class Action Seeking Damages From Oil Spill

NEW ORLEANS - A New Orleans commercial fisherman on June 25 filed a class action lawsuit in Louisiana federal court, seeking damages from the Gulf of Mexico oil spill (Joe Oser v. Transocean Ltd., et al., No. 10-cv-01829, E.D. La.). Read more

Takings Claim Cannot Be Speculative, 7th Circuit Panel Says

CHICAGO - Finding that a landowner's claims that the approval of a proposed wind farm on land adjacent to hers amounted to a taking without just compensation were speculative because no physical invasion of her property had taken place, a Seventh Circuit U.S. Court of Appeals panel on June 24 affirmed a lower court's dismissal of the landowner's allegations (Patricia Muscarello v. Ogle County Board of Commissioners, et al., No. 08-2464, 7th Cir.; 2010 U.S. App. LEXIS 13016). Read more

High Court Denies Review Of Statute Of Limitations Ruling In ERISA Case

WASHINGTON, D.C. - The U.S. Supreme Court on June 28 denied review of a divided Ninth Circuit U.S. Court of Appeals ruling that affirmed that a claim for disability benefits under the Employee Retirement Income Security Act was untimely because it was not filed within the contractual one-year statute of limitations period (Donna Scharff v. Raytheon Company Short Term Disability Plan, et al., No. 09-1292, U.S. Sup.). Read more

Lead Paint Claims Constitute An Occurrence Under Policy, Judge Says

BALTIMORE - Because underlying bodily injury claims caused by lead paint were an occurrence and the injuries were not expected or intended by the insured, an insurer has a duty to defend the insured in the underlying suit, a Maryland federal judge said June 25 (Pennsylvania National Mutual Casualty Insurance Co. v. City Homes Inc., et al., No. 09-02610, D. Md.; 2010 U.S. Dist. LEXIS 63165). Read more

Excess Policy Incorporates Underlying Policies' Duty To Defend, Wis. Court Says

MADISON, Wis. - An excess insurer has a duty to defend its insured in an underlying environmental contamination cleanup action because the policy includes a follow-form provision that incorporates the duty to defend found in the underlying policies, the majority of the Wisconsin Supreme Court determined June 24 (Johnson Controls Inc. v. London Market. et al., No. 2007AP1868, Wis. Sup.; 2010 Wisc. LEXIS 45). Read more

Court: As A Whole, Medical Records Satisfy Asbestos Prima Facie Standards

CLEVELAND - Medical evidence, when viewed as a whole, presents a prima facie case that a man's lung cancer was substantially likely to have arisen from occupational exposure to asbestos, an Ohio appeals court held June 24 (David F. Hoover v. Norfolk Southern Railway Co., Nos. 93479, 93689, Ohio App., 8th Dist.). Read more

Federal Judge Finds Foreclosure Was Invalid Under California Law

SACRAMENTO, Calif. - A federal judge on June 25 held that a foreclosure sale on a woman's home was invalid under California law because she alleges in her lawsuit against her mortgage lender, the lender who purchased her mortgage and the bank that purchased her home at the foreclosure sale that she was not in default on her mortgage loan (Henrietta Monday v. Saxon Mortgage Services Inc., et al., No. 10-989 WBS KJM, E.D. Calif.; 2010 U.S. Dist. LEXIS 63173). Read more

Judge: Man Has Standing To Pursue Competition Law Vitamin Advertising Case

SAN DIEGO - A man alleging that a multivitamin manufacturer misrepresented the health benefits of selenium successfully pleaded standing under the unfair competition law by adding a plaintiff who had purchased one of the products he had not and by claiming that both relied on television advertising in making their decisions, a California federal judge held June 24 (David Johns, et al. v. Bayer Corp., et al., No. 09-1935, S.D. Calif.; 2010 U.S. Dist. LEXIS 62804). Read more

Wrongful Death Plaintiffs Say Defendants' Citation Supports Their Remand Motion

RICHMOND, Va. - Parents of a 17-year-old girl who died of cardiac arrest after several infusions with Johnson & Johnson's Remicade say in a June 24 appeal brief before the Fourth Circuit U.S. Court of Appeals that the case on which the defendants relied to defeat remand, although "somewhat distinguishable," nevertheless supports the plaintiffs' motion to remand (James Mack, et al. v. AmerisourceBergen Drug Corporation, et al., No. 10-1019, 4th Cir.). Read more

ICSID Finds It Has Jurisdiction To Hear Treaty Claims Against Ecuador

PARIS - The International Centre for Settlement of Investment Disputes (ICSID) on June 24 released a ruling in a dispute between a company holding interest in contracts for exploration of certain blocks of the Amazon region against the Republic of Ecuador, finding that it has jurisdiction to hear the company's allegations that Ecuador allegedly expropriated its investment (Burlington Resources Inc., et al. v. Republic of Ecuador, No. ARB/08/5, ICSID).? (Decision on jurisdiction available 05-100727-007X ) On March 23, 2000, Kerr McGee Ecuador Energy Corp., Preussag Energie GMBH, Sociedad Internacional Petrolera S.A. and Compa??a Latinoamericana Petrolera Numero Dos S.A. (collectively, Kerr) entered into a production-sharing contract (Block 7 PSC) for the exploration and exploitation of oil fields in the Amazon region with the Republic of Ecuador (Ecuador), by the intermediary of Empresa Estatal Petr?leos del Ecuador (PetroEcuador). Read more

Massachusetts Appeals Panel: When Undersized Lot Was Merged, Variance Was Voided

BOSTON - Finding that a grandfathered variance to a local minimum lot size zoning ordinance was invalidated when an undersized property was merged with another property, a Massachusetts Appeals Court panel on June 25 affirmed a lower court's decision in an unpublished opinion (Leonard O'Brien v. Zoning Board of Appeals of Somerset, No. 09-P-1135, Mass. App.; 2010 Mass. App. Unpub. LEXIS 731). Read more

Interim Fee Decisions In Vaccine Court Ruled Immediately Appealable

WASHINGTON, D.C. - A Vaccine Court special master's decision on interim attorney fees stemming from a petition claiming that the hepatitis B vaccine caused a variety of injuries is appealable regardless of the status of the underlying case, the Federal Circuit U.S. Court of Appeals said in a June 24 opinion, reversing the court below (Michael Stephen Shaw v. Secretary, No. 01-707V, Fed. Clms.; No. 2009-5117, Fed. Cir.; 2010 U.S. App. LEXIS 12940). Read more

Judge: Late Filing Is Excusable On Insurer's Negligence Claim

TRENTON, N.J. - An insurance company established a reasonable basis for failing to provide a timely affidavit of merit (AOM) regarding its negligence claim against an insurance agent on the agent's binding of insurance, a New Jersey federal judge ruled June 24 (Syndicate 1245 at Lloyd's v. Walnut Advisory Corp., et al., No. 09-1697, D. N.J.; 2010 U.S. Dist. LEXIS 63540). Read more

Judge: No Duty To Defend, Indemnify Under Policy's Employers Liability Coverage

TULSA, Okla. - An underlying claimant has pleaded only allegations of intentional conduct against a paving and excavating company to avoid the exclusive nature of the workers' compensation remedy, an Oklahoma federal judge held June 25, finding that there is no possibility that the underlying claims for intentional acts are covered under a policy's employers liability coverage section (American Interstate Insurance Co. v. Wilson Paving & Excavating Inc., et al., No. 09-CV-342-JHP-TLW, N.D. Okla.; 2010 U.S. Dist. LEXIS 63278). Read more

Lawyer's Comments To Jury Lead To Reversal Of $ 1M Verdict In New Jersey

TRENTON, N.J. - A New Jersey appellate panel on June 25 reversed a $ 1 million jury verdict awarded to a woman injured in an automobile accident, finding that her attorney made inappropriate comments to the jury (Barbara Szczecina v. PV Holding Corp., et al., No. A-3437-08T3, N.J. Super., App. Div.). Read more

1st Circuit Affirms Reversal Of $ 2M Race Bias Award

BOSTON - A federal trial court acted appropriately when it vacated a jury award of $ 2 million and granted an employer's renewed motion for judgment as a matter of law, pursuant to Federal Rule of Civil Procedure 50(b), in a race bias suit, the First Circuit U.S. Court of Appeals ruled June 25 (Azell Malone v. Lockheed Martin Corporation, et al., No. 09-2060, 1st Cir.; 2010 U.S. App. LEXIS 13063). Read more

8th Circuit: Sentence For Bankruptcy Fraud Proper; Extensive Assets Concealed

ST. LOUIS - A panel of the Eighth Circuit U.S. Court of Appeals on June 28 ruled that a district court's sentence of 18 months in prison for a debtor who committed bankruptcy fraud was appropriate given the extent to which he attempted to conceal his assets, which were valued at $ 500,000 (United States of America v. Marvin R. Mitchell, No. 09-3161, Chapter 7, 8th Cir.; 2010 U.S. App. LEXIS 13154). Read more

Pa. Law Mostly Preempts Bad Faith Claims For Refusal Of Payment, Judge Rules

SCRANTON, Pa. - A plaintiff's bad faith claim against his insurer is mostly preempted by Pennsylvania's Motor Vehicle Financial Responsibility Law (MVFRL), a federal judge ruled June 25, granting in part the insurer's motion to dismiss the count (Eugene F. Hickey II v. Allstate Property and Casualty Insurance Co., No. 3:10cv00907, M.D. Pa.; 2010 U.S. Dist. LEXIS 63225). Read more

Federal Judge Denies Attorney Fees For Work Done After Trustee Appointed

BROOKLYN, NY - A federal judge in New York on June 24 denied a lawyer's application for fees, holding that he could not recover compensation for the work he performed after a Chapter 11 trustee was appointed in his client's case (Lawrence Morrison v. United State Trustees, No. 09-3565, Chapter 11, E.D. N.Y.; 2010 U.S. Dist. LEXIS 63339). Read more

Protective Order Relieves Defendant From Producing Insurance Settlement Details

INDIANAPOLIS - Representatives of a putative class of Attica, Ind., residents in the U.S. District Court for the Southern District of Indiana who allege trichloroethene and tetrachloroethene ground and air contamination from a factory site may not review settlement agreements reached in state court in an unrelated action, according to Magistrate Judge Debra McVicker Lynch in a protective order entered June 24 (Susan Stoll, et al v. Kraft Foods Global Inc., No. 09-364, S.D. Ind.; 2010 U.S. Dist. LEXIS 63075). Read more

N.Y. Federal Judge Denies Dismissal Of Trademark Claims In Mascot Dispute

ALBANY, NY - Deeming a trademark infringement defendant's arguments "meritless," a New York federal judge on June 25 cleared the way for trial in the case, which involves the use by competing tax firms of costumed mascots resembling Uncle Sam and Lady Liberty (JTH Tax Inc. d/b/a Liberty Tax Service v. Mitra Gouneh and Uncle Sam's Taxes Inc., No. 1:10-cv-295, N.D. N.Y.). Read more

California Judge Approves Rehabilitation Plan For Insurance Company

LOS ANGELES - A California judge on June 24 approved a rehabilitation plan for Golden State Mutual Life Insurance Co. (Steve Poizner, Insurance Commissioner of the State of California v. Golden State Mutual Life Insurance Co., No. BS123005, Calif. Super., Los Angeles Co.). Read more

Federal Judge: Debtor's Claim Barred; Asset Was Not Listed In Bankruptcy

BROOKLYN, NY - A federal judge in New York on June 24 ruled that a debtor could not claim ownership in a painting that he failed to list as an asset in his bankruptcy proceeding; therefore, his claim to the item was barred by judicial estoppel (Philip Coffaro v. David Crespo, et al., No. 08-2025, E.D. N.Y.; 2010 U.S. Dist. LEXIS 63281). Read more

GlaxoSmithKline Defends Diabetes Drug Avandia Against New Studies

LONDON - GlaxoSmithKline PLC is defending the cardiovascular (CV) safety of its diabetes drug Avandia (rosiglitazone) against two new studies and an unfavorable editorial in the Journal of the American Medical Association (JAMA) that coincide with the American Diabetes Association's annual meeting and precede by only weeks the Food and Drug Administration's plan to reconsider the drug's safety. Read more