HOUSTON - In a trademark infringement lawsuit, an expert may testify on branding in the fitness industry but is not allowed to discuss whether an alleged brand meets various legal definitions related to trademark law, a Texas federal judge ruled Oct. 18, also denying summary judgment to a fitness training company on its fair use defense (Michael Jones v. American Council on Exercise, No. 15-3270, S.D. Texas; 2016 U.S. Dist. LEXIS 143882).
AUSTIN, Texas - A Texas appellate court panel on Oct. 19 reversed in part a ruling awarding summary judgment to a plumbing subcontractor accused of improperly installing a propane line, ruling that a couple's settlement with the general contractor does not bar the plaintiffs' claims against the subcontractor (Steven C. Albright, et al. v. Rhea & Sons Enterprises Inc., d/b/a Rhea Plumbing, No. 03-15-00496-CV, Texas App., 3rd Dist.; 2016 Texas App. LEXIS 11296).
WASHINGTON, D.C. - A District of Columbia U.S. Circuit Court of Appeals pane. on Oct. 17 stayed an enforcement order requiring Backpage.com LLC Chief Executive Officer Carl Ferrer to comply with a U.S. Senate subcommittee discovery subpoena connected with an investigation of online sex trafficking, finding that he had met the requirements for a stay pending appeal (Senate Permanent Subcommittee on Investigations v. Carl Ferrer, No. 16-5232 and 16-5274, D.C. Cir.).
NEW ORLEANS - Saying she is "highly suspicious" of the motive behind adding a diversity-defeating asbestos defendant after removal and just before a motion for remand, a federal magistrate judge in Lousiana declined a motion to file a supplemental and amended complaint on Oct. 17 (Nolan Legeaux, et al. v. Borg-Warner Corp., et al., No. 16-13773, E.D. La.; 2016 U.S. Dist. LEXIS 143241).
KNOXVILLE, Tenn. - A Tennessee appeals panel on Oct. 17 affirmed the dismissal of a medical malpractice plaintiff's claims because she failed to comply with the Health Insurance Portability and Accountability Act (HIPAA)-complaint authorization requirement under Tennessee law (Catherine Cright v. Tijuan Overly M.D., et al., No. E2015-01215-COA-R3-CV, Tenn. App.; 2016 Tenn. App. LEXIS 770).
MIAMI - A Florida appeals court on Oct. 19 affirmed a judge's ruling setting aside a $10.3 million Jones Act asbestos verdict against a cruise line (Giovanna Settimi Caraffa, et al. v. Carnival Cruise Lines, No. 3D 15-356, Fla. App., 3rd Dist.).
NEWARK, N.J. - Horizon Healthcare Service Inc. and related companies (collectively, Horizon) has already transferred $33 million to an interest-bearing, federally insured escrow account that will be used to pay class members, settlement administration costs above the $160,000 that Horizon is obligated to pay and any attorney fees and costs under a settlement granted final approval by a New Jersey federal judge on Oct. 18, ending a class complaint filed by chiropractors alleging that Horizon systematically denied payment for certain services rendered (Alphonse A. DeMaria, et al. v. Horizon Healthcare Services, Inc. d/b/a Horizon Blue Cross Blue Shield of New Jersey, et al., No. 11-7298, D. N.J.; 2016 U.S. Dist. LEXIS 143941).
WASHINGTON, D.C. - A tribunal for the International Centre for Settlement of Investment Disputes (ICSID) on Oct. 19 released its decision in a dispute over loans, ordering that a Tanzanian bank pay a U.K. bank $148.4 million under a power purchase agreement (Standard Chartered Bank v. United Republic of Tanzania, No. ARB/10/12, ICSID).
SAN FRANCISCO - A California federal judge held a hearing Oct. 18 on a proposed settlement of a class action against Volkswagen Group of America Inc. that would create a $1.21 billion settlement fund and provide additional benefits to all 652 VW franchise dealers in the United States who suffered as a result of the diesel emissions cheating scandal (In re: Volkswagen "Clean Diesel" Marketing, Sales Practices and Products Liability Litigation, MDL No. 2672; Napleton Orlando Imports LLC, et al. v. Volkswagen Group of America Inc., et al., No. 3:16cv2086, N.D. Calif.).
TALLAHASSEE, Fla. - The Florida Supreme Court on Oct. 20 held that insureds' claim for sinkhole damage is governed by the definition of "covered claim'" in Section 631.54(3), Florida Statutes, that was effective May 17, 2011, affirming an appeals court's reversal of a lower court's order confirming a $130,600 appraisal award against the Florida Insurance Guaranty Association (FIGA) (Leandro de la Fuente, et al. v. FIGA, No. SC15-519, Fla. Sup.).
DETROIT - A class of Michigan residents on Oct. 18 filed a putative class action lawsuit against the Michigan Department of Education (MDE), seeking declaratory and injunctive relief "to vindicate the rights" of school-age children residing in Flint, Mich., who currently have disabilities, or who are at risk of developing them, due to elevated levels of lead in the drinking water (D.R., as a minor through parent and next friend Dawn Richardson, et al. v. Michigan Department of Education, et al., No. 16-cv-13694, E.D. Mich.).
ERIE, Pa. - Eighteen months after the Third Circuit U.S. Court of Appeals affirmed their ability bring class claims against a rent-to-own (RTO) retailer that purportedly installed spyware on their computer, a Wyoming couple on Oct. 14 again moved for class certification to pursue their claims under the Electronic Communications Privacy Act (ECPA) (Crystal Byrd, et al. v. Aaron's Inc., et al., No. 1:11-cv-00101, W.D. Pa.).
WASHINGTON, D.C. - Multidistrict litigation stemming from an alleged practice by McCormick & Co. Inc. of "slack-filling" black pepper containers will proceed with a claim of false advertising in place, a District of Columbia federal judge ruled Oct. 18 (In re: McCormick & Company Inc., MDL No. 2665, D. D.C.; 2016 U.S. Dist. LEXIS 143176).
LOUISVILLE, Ky. - A Kentucky federal judge in an order filed Oct. 17 directed insurer defendants in a class action challenging the lump-sum payment method used to calculate interest earned by pension plan members' accounts to produce several dozen allegedly privileged documents based on the fiduciary exception to the attorney-client and work product privileges (Jennifer Durand, et al. v. The Hanover Insurance Group Inc., et al., No. 3:07-cv-00130, W.D. Ky.; 2016 U.S. Dist. LEXIS 143064).
NEW ORLEANS - The Fifth Circuit U.S. Court of Appeals on Oct. 18 held that a fraud scheme involving an email did not constitute computer fraud under a crime protection insurance policy, vacating a lower court's $1.4 million judgment against the insurer (Apache Corp. v. Great American Insurance Co., No. 15-20499, 5th Cir.; 2016 U.S. App. LEXIS 18748).
BOSTON - A mechanical engineer may testify as to the defects in a lawn mower and the causation of a man's injuries while a doctor of bio-mechanics may testify as to the timing of the accident, a Massachusetts federal judge held Oct. 17 (Anthony Provanzano v. MTD Products Co. and Lowe's Home Centers LLC, No. 15-11720, D. Mass.; 2016 U.S. Dist. LEXIS 143402).
NEW ORLEANS - A Fifth Circuit U.S. Court of Appeals panel on Oct. 14 declined to reconsider its earlier ruling in which a split panel dismissed for want of jurisdiction an appeal by unidentified opt-in plaintiffs in a wage-and-hour dispute who were seeking an extension of equitable tolling (Joanna Marie Wilson, et al. v. Navika Capital Group, L.L.C., et al., No. 15-20204, 5th Cir.; 2016 U.S. App. LEXIS 18552).
NEW ORLEANS - A California state court approved opt-out class settlement that released Fair Labor Standards Act (FLSA) claims precludes FLSA claims brought in a federal court on behalf of California plaintiffs, a Fifth Circuit U.S. Court of Appeals panel ruled Oct. 14 (Raymond Richardson, et al. v. Wells Fargo Bank, N.A., et al., No. 15-20711, 5th Cir.; 2016 U.S. App. LEXIS 18528).
WILMINGTON, Del. - Two claimants in Libby, Mont., seeking to hold insurers of W.R. Grace & Co. liable for their asbestos injuries can pursue negligence and bad faith claims in state court against an insurer based on workers' compensation policies not covered by W.R. Grace's Chapter 11 reorganization; however, similar claims in other state court actions are barred by an injunction in W.R. Grace's case channeling asbestos claims to a trust for resolution, a Delaware federal bankruptcy judge ruled Oct. 17 (In re: W.R. Grace & Co., et al., No. 01-01139 [Ralph Hutt and Carl Osborn v. Maryland Casualty Company, No. 14-50867], [Continental Casualty Company, et al. v. Jeremy B. Carr, et al., No. 15-50766], D. Del. Bkcy.).
HOUSTON - A former professional football player on Oct. 17 filed suit against the Houston Texans in Texas state court, alleging that he suffered a career-ending injury because the turf at the Texans' field was improperly laid (DeMeco Ryans v. Houston Texans, et al., No. 2016-70179, Texas Dist., Harris Co.).
ALEXANDRIA, Va. - Deeming a petitioner likely to succeed on its claim that two claims of a patented clip used in connection with children's play yards are invalid as anticipated, the Patent Trial and Appeal Board on Oct. 17 granted inter partes review (IPR) (Graco Children's Products Inc. v. Kolcraft Enterprises Inc., No. IPR2016-00911, PTAB).
SAN FRANCISCO - A claim that Google Inc. committed contributory trademark infringement when it failed to remove from Google Play apps from developers previously accused of infringing a plaintiff's "Spy Phone" trademark will proceed in light of an Oct. 14 holding by a California federal judge, who deemed the allegations sufficient to withstand a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) (Spy Phone Labs LLC v. Google Inc., No. 15-3756, N.D. Calif.; 2016 U.S. Dist. LEXIS 143530).
CHICAGO - An Illinois federal judge on Oct. 14 dismissed a class complaint accusing Starbucks Corp. of falsely advertising the size of its iced beverages by including the ice when advertising its drinks' volume (Steven Galanis, et al. v. Starbucks Corporation, No. 16-4705, N.D. Ill.; 2016 U.S. Dist. LEXIS).
BROOKLYN, N.Y. - A New York federal judge on Oct. 14 adopted a magistrate's report that recommended dismissing a Superstorm Sandy coverage dispute due to the insured's failure to prosecute (David Valero v. The National Flood Insurance Program, No. 14-3362, E.D. N.Y.; 2016 U.S. Dist. LEXIS 143007).