LexisNexis® Legal Newsroom
    Mealey's IP/Tech - In Final Decision, Patent Board Partly Sides With Justice Department

    ALEXANDRIA, Va. - A challenge by the U.S. States Department of Justice to various claims of a security alarm system patent was partly successful Nov. 10, when the Patent Trial and Appeal Board agreed that 18 claims are unpatentable as anticipated (U.S. Department of Justice v. Discovery Patents LLC, No. IPR2016-01041, PTAB).

    Mealey's Insurance - Judge Dismisses Breach Of Contract Claim In Coverage Dispute Over Mortgage Fraud

    SEATTLE - A Washington federal judge on Nov. 13 dismissed a breach of contract claim brought by the Federal Deposit Insurance Corp. against fourth-level excess insurers in a coverage dispute arising from fraudulent mortgage loans, finding that third-level excess insurance has not been exhausted (Federal Deposit Insurance Corp. v. Arch Insurance Company, et al., No.14-0545, W.D. Wash., 2017 U.S. Dist. LEXIS 187224).

    Mealey's Insurance - Ohio Panel Affirms TrialCourt's Judgment In Insurer's Favor On Bad Faith Claim

    TOLEDO, Ohio - A trial court did not err in granting an insurer's motion for summary judgment in a bad faith dispute over underinsured motorist coverage because the insured's voluntary dismissal of a prior bad faith claim was with prejudice and, therefore, prohibited the insured from refiling the claim, the Sixth District Ohio Court of Appeals said Nov. 9 (The Estate of Faye Brummitt, et al., v. Ohio Mutual Insurance Group, et al., No. E-17-014, Ohio App., 6th Dist., 2017 Ohio App. LEXIS 4898).

    Mealey's Litigation Procedure - Consent Dooms Text Message Class Suit Against Abercrombie

    ANN ARBOR, Mich. - Express consent from the lead named plaintiff in a Telephone Consumer Protection Act (TCPA) lawsuit to receive up to 10 marketing text messages per month bars her class complaint against Abercrombie & Fitch Co. and Abercrombie & Fitch Stores Inc. (collectively, A&F), a Michigan federal judge ruled Nov. 13 (Melissa N. Thomas v. Abercrombie & Fitch Stores, Inc., et al., No. 16-11467, E.D. Mich., 2017 U.S. Dist. LEXIS 186945).

    Mealey's Insurance - Judge Extends Deadline On Class Certification Motion To Allow Discovery Completion

    PHILADELPHIA - In a dispute over an alleged kickback insurance premium scheme involving insurers, reinsurers and lenders, a Pennsylvania federal judge on Nov. 9 granted a joint stipulation and order to extend deadlines pertaining to a class certification motion to allow homeowners to complete relevant discovery and document production (Nelson White Jr., et al. v. The PNC Financial Services Group Inc., et al., No. 11-7928, E.D. Pa., 2017 U.S. Dist. LEXIS 135743).

    Mealey's IP/Tech - Yahoo, Promotions Firm Announce Settlement In Remanded NCAA Contest Suit

    DALLAS - In a joint filing Nov. 13 in Texas federal court, Yahoo! Inc. and a former promotional partner announced that they had stipulated to settlement of the remaining issues in a remanded case centering on contractual disputes over a 2014 online NCAA contest three months after the Fifth Circuit U.S. Court of Appeals found that Yahoo owed the plaintiff $4.4 million (SCA Promotions Inc. v. Yahoo! Inc., No. 3:14-cv-00957, N.D. Texas).

    Mealey's IP/Tech - Indiana Federal Judge Denies Relief In Dispute Over Wine Aeration Patent

    SOUTH BEND, Ind. - Efforts by a patent owner to obtain a preliminary injunction barring a competitor from selling a similar device designed to aerate and dispense wine were unsuccessful on Nov. 13, when an Indiana federal judge questioned the likelihood that the lawsuit will succeed (MercAsia USA Ltd. v. 3BTech Inc., et al., No. 17-718, S.D. Ind., 2017 U.S. Dist. LEXIS 187000).

    Mealey's Litigation Procedure - California Federal Judge: Collective, Class Certification Motions Should Both Be Filed

    SAN FRANCISCO - A California federal judge on Nov. 10 held in abeyance a motion for collective certification under the Fair Labor Standards Act (FLSA) filed by a property appraiser alleging that he and others have been misclassified and denied overtime wages and ruled that the plaintiff may renew his motion when he files for class certification of his state law claims (Som Swamy, et al. v. Title Source, Inc., No. 17-1175, N.D. Calif., 2017 U.S. Dist. LEXIS 186535).

    Mealey's Litigation Procedure - Plaintiffs Say VTech Data Breach Revealed Products' Diminished Value

    CHICAGO - Stressing that the claims in their amended complaint center on a benefit of the bargain damages theory, the plaintiffs in a putative class action filed in the wake of a 2015 data breach experienced by VTech Electronics North America LLC oppose the firm's dismissal motion in a Nov. 9 brief in Illinois federal court, arguing that the breach revealed VTech's failure to provide a promised kid-safe environment (In re VTech Data Breach Litigation, No. 1:15-cv-10889, N.D. Ill.).

    Mealey's Litigation Procedure - Federal Judge Partially Certifies Class Alleging Deficient Credit Monitoring

    PHILADELPHIA - A Pennsylvania federal judge on Nov. 13 partially certified a class of consumers suing a retailer and the company that issues the retailer's private-label credit cards for allegedly profiting from a deficient credit-monitoring service, finding that certification is appropriate for class members subject to Delaware law, but not for those subject to Virginia law (Jennifer Underwood, et al. v. Kohl's Department Stores, Inc., et al., No. 15-730, E.D. Pa., 2017 U.S. Dist. LEXIS 186927).

    Mealey's Antitrust/Unfair Competition - California Court Affirms Dismissal Of UCL Claim Against Payment Services Firm

    LOS ANGELES - A California appeals court on Nov. 9 found that a lower court did not err when it sustained a county payment services company's demurrer as to claims asserted by a user of the service for violation of California's unfair competition law (UCL) and civil code, finding that the company did not violate any law when it charged a processing fee (Gina Wood v. Link2Gov Corp., No. B271920, Calif. App., 2nd Dist., Div. 5, 2017 Cal. App. Unpub. LEXIS 7729).

    Mealey's Toxic Tort/Environmental - Magistrate: Insufficient Evidence Of Exposure To Original Products In Asbestos Case

    SCOTTSDALE, Ariz. - To hold two companies liable for supplying valves to the U.S. Navy, a plaintiff must also submit evidence that the asbestos-containing gaskets and packing were original or that the companies supplied replacement parts, a federal magistrate judge in Arizona said in a Nov. 9 report and recommendation (Bobby Len Davis and Becky Davis v. Air & Liquid System Corp., et al., No. 14-2288, D. Ariz., 2017 U.S. Dist. LEXIS 186478).

    Mealey's Litigation Procedure - Fire Chief's Testimony Tossed In Paramedic's Wrongful Termination Suit

    SAN ANTONIO - A paramedic challenging his firing was successful in getting a fire chief's expert testimony excluded from the case when a Texas federal judge ruled Nov. 13 that the chief's testimony is not relevant and would not be helpful to a jury (Bryan Brightwell v. Bandera County, No. 5:16-cv-1216, W.D. Texas, 2017 U.S. Dist. LEXIS 186730).

    Mealey's IP/Tech - On Remand From Supreme Court, Federal Circuit Affirms Noninfringement Judgment

    WASHINGTON, D.C. - In a reversal of its previous findings, the Federal Circuit U.S. Court of Appeals on Nov. 13 upheld a Wisconsin federal judge's decision to deny a new trial on damages and infringement of various genetic testing kit patents (Promega Corporation v. Life Technologies Corp., No. 13-1011, Fed. Cir., 2017 U.S. App. LEXIS 22635).

    Mealey's IP/Tech - 4th Circuit Affirms: Computer Fraud Claims Preempted By Copyright Act

    RICHMOND, Va. - Allegations that the creator of a cloud computing environment committed computer fraud when it copied and transferred data to former employees of a company it once contracted with are preempted by the Copyright Act, the Fourth Circuit U.S. Court of Appeals ruled Nov. 13 (OpenRisk LLC v. MicroStrategy Services Corp., No. 16-1852, 4th Cir., 2017 U.S. App. LEXIS 22736).

    Mealey's PI/Product Liability - Pennsylvania Appeals Court: 2 Risperdal Gynecomastia Cases Time-Barred

    PHILADELPHIA - A Pennsylvania appeals panel on Nov. 13 affirmed defense summary judgment in two Risperdal gynecomastia cases, ruling that the plaintiffs reasonably should have known that their alleged injuries were caused by the drug before they filed suit a minimum of six years too late (Jonathan Saksek v. Janssen Pharmaceuticals, Inc., et al., No. 576 EDA 2015, Joshua Winter v. Janssen Pharmaceuticals, Inc., et al., No. 590 EDA 2015, Pa. Super., 2017 Pa. Super. Unpub. LEXIS 4163).

    Mealey's PI/Product Liability - Risperdal Gynecomastia Defense Verdict Reversed On Appeal For 'Expert' Testimony

    PHILADELPHIA - A Pennsylvania state appeals court panel on Nov. 13 reversed a Risperdal gynecomastia defense verdict, finding that the trial court erred in not treating physician assistant's testimony as that of a causation expert (W.C. v. Janssen Pharmaceuticals, Inc., et al., No. 2451 EDA 2015, Pa. Super., 2017 Pa. Super. LEXIS 909).

    Mealey's PI/Product Liability - Jury Deliberating In 4th DePuy Pinnacle Hip MDL Trial With 6 Plaintiffs

    DALLAS - A Texas federal jury on Nov. 13 began deliberating in a multiplaintiff DePuy Pinnacle hip trial after nine weeks of testimony (In Re: DePuy Orthopaedics, Inc., Pinnacle Hip Implant Products Liability Litigation, MDL Docket No. 11-md-02244, Ramon Alicea, et al. v. DePuy Orthopaedics., Inc., et al., No. 15-03489, Uriel Barzel v. DePuy Orthopaedics, Inc., et al., No. 16-1245, Karen Kirschner v. DePuy Orthopaedics, Inc., et al., No. 16-1526, Hazel Miura v. DePuy Orthopaedics, Inc., et al., No. 13-4119, Michael A. Stevens v. DePuy Orthopaedics, Inc., et al., No. 14-1776, Eugene Stevens Jr. v. DePuy Orthopaedics, et al., No. 14-2341, N.D. Texas).

    Mealey's Toxic Tort/Environmental - Flint Water Defendants: Involuntary Manslaughter Charges Are Inaccurate

    DETROIT - Two employees of the Michigan Department of Environmental Quality (MDEQ) on Nov. 10 moved in Michigan federal court to strike portions of an amended complaint filed by residents of the city of Flint, Mich., contending that the plaintiffs "inaccurately allege that Defendants have been charged with involuntary manslaughter" in connection with the lead-contaminated water crisis in that city (In re Flint Water Cases [Luke Waid, et al. v. Richard D. Snyder, et al.], No. 16-10444, E.D. Mich.).

    Mealey's PI/Product Liability - Colorado Supreme Court Affirms Vacated Verdict In Product Liability Suit

    DENVER - The Colorado Supreme Court on Nov. 13 unanimously held that a trial court erred when it gave the jury in a product liability suit against Ford Motor Co. an instruction allowing the jurors to use the consumer expectation test to determine if a driver's car seat was unreasonably dangerous because in this case, the court should have instructed the jury on the risk-benefit test (Forrest Walker v. Ford Motor Company, No. 15SC899, Colo. Sup., 2017 Colo. LEXIS 988).

    Mealey's Litigation Procedure - Insurers Oppose Discovery Extension In Fraudulent Transfer Suit Against Reinsurer

    ATLANTA - Insurers in a Nov. 9 brief oppose a request from a reinsurer and its shareholders to extend the discovery period and expert report deadlines in a dispute in a Georgia federal court over allegedly fraudulent transfers of reinsurance funds (Canal Insurance Co., et al. v. Golden Isles Reinsurance Company Ltd., et al., No. 15-03331, N.D. Ga.).

    Mealey's Litigation Procedure - Amici Assert Contributions To Plan Cannot Be Used As Defense To Fiduciary Breach Claim

    BOSTON - A settlor's contributions to a 401(k) plan are not a defense to claims that the plan trustee breached its fiduciary duties by engaging in prohibited transactions, AARP and the National Employment Lawyers Association argue in an amicus curiae brief filed in the First Circuit U.S. Court of Appeals in support of plan participants in an Employee Retirement Income Security Act class action suit (John Brotherston, et al. v. Putnam Investments LLC, et al., No. 17-1711, 1st Cir.).

    Mealey's PI/Product Liability - Florida High Court Deems Malpractice Suit Interview Provision Unconstitutional

    TALLAHASSEE, Fla. - State law amendments in 2013 providing for secret ex parte interviews of a medical malpractice claimant's physicians violate the Florida Constitution's guarantees of privacy and court access, a Florida Supreme Court majority ruled Nov. 9, finding that including the interviews as part of the mandated presuit informal discovery process required claimants to waive their privacy rights to avail themselves of the courts (Emma Gayle Weaver v. Stephen C. Myers, M.D., et al. No. SC15-1538, Fla. Sup., 2017 Fla. LEXIS 2282).

    Mealey's PI/Product Liability - Opinions That Accident Led To Death By Painkillers Allowed By Federal Judge

    PHILADELPHIA - Three of four doctors offering expert opinions in a wrongful death action can testify that an accident on a U.S. military base caused a man's injuries and subsequent death from taking too many pain medications for the injuries, a Pennsylvania federal judge held Nov. 8, finding the causation opinions reliable enough to be admitted (Robert S. Evans v. United States of America, et al., No. 15-1839, E.D. Pa., 2017 U.S. Dist. LEXIS 185563).

    Mealey's Litigation Procedure - Texas Panel Vacates Discovery Order, Says Documents Not Relevant To Contract Claim

    TYLER, Texas - The 12th District Texas Court of Appeals on Nov. 8 determined that a trial court erred in granting an insured's motion to compel because the documents sought by the insured are not relevant to the contract claim and will not be relevant unless and until the extracontractual claims are tried (In re: Allstate Fire & Casualty Insurance Co., No. 12-17-00266, Texas App., 12th Dist., 2017 Tex. App. LEXIS 10428).