LexisNexis® Legal Newsroom
Mealey's Toxic Tort/Environmental - New York's Claims Against Indian Companies Fail, Magistrate Judge Says

BUFFALO, N.Y. - All claims by the State of New York alleging that two Indian enterprises are running a contraband cigarette ring that illegally brings millions of dollars' worth of cigarettes into New York from Canada should be dismissed because the state fails to plausibly allege that the companies violated federal laws, a federal magistrate judge recommended Aug. 30 (State of New York v. Grand River Enterprises Six Nations, Ltd., et al., No. 14-cv-910, W.D. N.Y.; 2016 U.S. Dist. LEXIS 117801).

Mealey's Insurance - Statute Voiding Discretionary Clauses Does Not Apply To Health Plan, Judge Says

SAN FRANCISCO - A California statute voiding discretionary clauses in disability and life insurance policies does not apply to a claim for medical expenses under a health insurance policy because New York law applies to the dispute and because health insurance is not a form of disability insurance, a California federal judge said Aug. 30 (David Bain et al., v. United Healthcare Inc., No. 15-3305, N.D. Calif.; 2016 U.S. Dist. LEXIS 116805).

Mealey's Labor & Employment - 2nd Circuit Panel Affirms Investment Advisers Liable For Pension Plan Losses

NEW YORK - A Second Circuit U.S. Court of Appeals panel on Aug. 30 affirmed a ruling that the investment advisers for employee pension plans sponsored by Severstal Wheeling Inc. (SWI) and its predecessors are liable for the full amount of investment losses - $9.6 million - due to their failure to properly diversify and manage the plans (Severstal Wheeling, Inc. Retirement Committee, et al. v. WPN Corporation, et al., No. 15-2725, 2nd Cir.; 2016 U.S. App. LEXIS 15970).

Mealey's Toxic Tort/Environmental - UPS Seeks To Exclude Evidence Of Damages In Cigarette Trafficking Suit

NEW YORK - United Parcel Service Inc. on Aug. 29 asked a federal judge in New York to bar the State of New York and New York City from presenting the amount of damages they are seeking against it in an upcoming cigarette trafficking trial (The State of New York, et al. v. United Parcel Service Inc., No. 15-cv-1136, S.D. N.Y.).

Mealey's Litigation Procedure - Privacy Suit Plaintiff Sanctioned For Spoliation Of Browsing History Evidence

NEW YORK - A plaintiff alleging violation of the Electronic Communications Privacy Act (ECPA) by a provider of advertising services for Internet error pages should have known of her duty to preserve browsing history and tracking cookie evidence from her computer, a New York federal magistrate judge ruled Aug. 29, granting in part the defendant's motion for sanctions for spoliation (Betsy Feist v. Paxfire Inc., et al., No. 1:11-cv-05436, S.D. N.Y.; 2016 U.S. Dist. LEXIS 116405).

Mealey's Antitrust/Unfair Competition - Judge Refuses To Stay UCL And Labor Claims Pending Outcome Of New York Action

SACRAMENTO, Calif. - After finding that no exceptional circumstances existed in an action in which a former franchisee asserts claims for violation of California's unfair competition law (UCL) and other causes of action, a California federal judge on Aug. 30 refused to stay the case pending the outcome of another related action pending in New York (James S. Martin v. Minuteman Press International Inc., et al., No. 2:16-cv-00833, E.D. Calif.; 2016 U.S. Dist. LEXIS 116733).

Mealey's Insurance - Panel Partly Vacates Ruling In Amtrak's Superstorm Sandy Suit Against Insurers

NEW YORK - The Second Circuit U.S. Court of Appeals on Aug. 31 found that a lower court erred when it prematurely granted summary judgment in favor of insurers on whether Amtrak was entitled to coverage under the Demolition and Increased Cost of Construction (DICC) clause in its insurance policies, vacating and remanding the Superstorm Sandy dispute in part (National Railroad Passenger Corp. v. Aspen Specialty Insurance Co., et al., No. 15-2358, 2nd Cir.; 2016 U.S. App. LEXIS 16074).

Mealey's IP/Tech - Federal Judge Stays UCL And Trademark Claims Pending Ruling

SAN FRANCISCO - A California federal judge on Aug. 26 stayed a trademark infringement case filed in relation to a mark for apparel, pending the outcome of a motion to dismiss a related case filed in New York (Therapy Stores Inc. v. JGV Apparel Group LLC, et al., No. 4:16-cv-02588-YGR, N.D. Calif.; 2016 U.S. Dist. LEXIS 115012).

Mealey's Antitrust/Unfair Competition - Federal Judge Stays UCL And Trademark Claims Pending Ruling

SAN FRANCISCO - A California federal judge on Aug. 26 stayed a trademark infringement case filed in relation to a mark for apparel, pending the outcome of a motion to dismiss a related case filed in New York (Therapy Stores Inc. v. JGV Apparel Group LLC, et al., No. 4:16-cv-02588-YGR, N.D. Calif.; 2016 U.S. Dist. LEXIS 115012).

Mealey's Toxic Tort/Environmental - Plaintiffs: Creosote Injury Claims Not Barred; Court 'Exceeded Authority'

NEW YORK - Plaintiffs who allege that they have been harmed as a result of exposure to wood treated with creosote on Aug. 29 filed a brief in the Second Circuit U.S. Court of Appeals contending that it should reverse a ruling in which a district court "exceeded its authority" when it concluded that the plaintiffs' claims were barred by a settlement agreement that prohibits "trust derivative claims" (Avoca Plaintiffs v. Kerr-McGee Corporation [In Re: Tronox Inc.], No. 16-343, 2nd Cir.).

Mealey's Insurance - Alleged Party To Captive Reinsurance Agreement Moves To Dismiss $7.8M Case

NEW YORK - An alleged party to a captive reinsurance agreement told a federal court in New York on Aug. 29 that the court does not hold jurisdiction over it and cross-moved for the dismissal of a case brought to force the party to pay a judgment from another suit (AmTrust North America, Inc. and Technology Insurance Company, Inc., as judgment creditors of Pacific Re, Inc. on behalf of its protected cell Pac Re 5-AT v. Safebuilt Insurance Services Inc., No. 16-cv-06033, S.D. N.Y.).

Mealey's Bankruptcy - Bankruptcy Judge Splits $20 Million Fee Award Evenly Among 4 Law Firms

NEW YORK - A $20 million attorney fee fund from a settlement between an insurer and asbestos claimants should be divided equally among four law firms that negotiated the settlement based on the language and meaning of the agreement, a New York federal bankruptcy judge held Aug. 26 (In re: Johns-Manville Corporation, et al. [Eric Bogdan and the Bogdan Law Firm v. Bevan & Associates, LPA, Inc., et al., No. 15-01023] No. 82-11656, S.D. N.Y. Bkcy.; 2016 Bankr. LEXIS 3145).

Mealey's Insurance - Nationwide Says There Is No Reason To Vacate Reinsurance Arbitration Award

NEW YORK - Nationwide Insurance Co., a party to a reinsurance agreement, told a federal court in New York on Aug. 25 that an arbitration panel umpire was not biased and there is no basis for vacating an arbitration award (Yosemite Insurance Company v. Nationwide Insurance Company, No. 16-cv-05290, S.D. N.Y.).

Mealey's PI/Product Liability - Corneal Scarring Claims From Contact Lenses Are Preempted, Judge Rules

BROOKLYN, N.Y. - A New York federal judge on Aug. 25 dismissed as preempted a plaintiffs claim that she suffered corneal scarring from Acuvue Oasys contact lenses (Anna Crissi v. Johnson & Johnson Vision Care, Inc., et al., No. 15-4230, E.D. N.Y.; 2016 U.S. Dist. LEXIS 114160).

Mealey's Litigation Procedure - 2nd Circuit Remands Securities Class Action For Consideration Of New Evidence

NEW YORK - Although a federal district court did not err in dismissing a federal securities class action complaint against BlackBerry Limited and certain of its former executive officers for failure to plead scienter, it is unclear whether newly discovered evidence submitted by lead plaintiffs was insufficient to determine whether the court properly denied their motion for reconsideration, a Second Circuit U.S. Court of Appeals panel ruled Aug. 24 (Todd Cox, et al. v. BlackBerry Limited, et al., No. 15-3991, 2nd Cir.).

Mealey's Litigation Procedure - London Market Reinsurers Ask Court To Deny Motion To Intervene

NEW YORK - A group of London market reinsurers on Aug. 23 told a federal court in New York that it should not allow the alleged owner of a reinsured to intervene in a reinsurance arbitration dispute because the motion to intervene is untimely (Certain Underwriting Members at Lloyd's, London v. Insurance Company of the Americas, No. 16-cv-00323, S.D. N.Y.).

Mealey's Insurance - London Market Reinsurers Ask Court To Deny Motion To Intervene

NEW YORK - A group of London market reinsurers on Aug. 23 told a federal court in New York that it should not allow the alleged owner of a reinsured to intervene in a reinsurance arbitration dispute because the motion to intervene is untimely (Certain Underwriting Members at Lloyd's, London v. Insurance Company of the Americas, No. 16-cv-00323, S.D. N.Y.).

Mealey's Litigation Procedure - New York Federal Judge: Baby Formula Organic Labeling Class Claims Are Preempted

NEW YORK - A New York federal judge on Aug. 23 granted a motion to dismiss a class complaint filed by consumers accusing a baby formula maker of improperly labeling its product as organic, finding that the claims are preempted by the Organic Foods Production Act of 1990 (OFPA) (Sara Marentette, et al. v. Abbott Laboratories, Inc., No. 15-2837, E.D. N.Y.; 2016 U.S. Dist. LEXIS 112241).

Mealey's PI/Product Liability - GM MDL Judge Denies Bellwether Plaintiff's Motion To Apply Collateral Estoppel

NEW YORK - The judge overseeing the General Motors ignition switch multidistrict litigation on Aug. 24 denied a bellwether plaintiff's motion to apply collateral estoppel so General Motors LLC (New GM) does not relitigate whether its predecessor company General Motor Corp. (Old GM) knew or should have known about the ignition switch defect before it first started an investigation into the defect (In Re: General Motors LLC Ignition Switch Litigation, No. 1:14-md-0254; Stephanie Cockram v. General Motors LLC, No. 14-CV-8716, S.D. N.Y.).

Mealey's Securities/D&O Liability - 2nd Circuit Remands Securities Class Action For Consideration Of New Evidence

NEW YORK - Although a federal district court did not err in dismissing a federal securities class action complaint against BlackBerry Limited and certain of its former executive officers for failure to plead scienter, it is unclear whether newly discovered evidence submitted by lead plaintiffs was insufficient to determine whether the court properly denied their motion for reconsideration, a Second Circuit U.S. Court of Appeals panel ruled Aug. 24 (Todd Cox, et al. v. BlackBerry Limited, et al., No. 15-3991, 2nd Cir.).

Mealey's Litigation Procedure - New York Federal Judge Dismisses 5 Defendants From ERISA Class Action

NEW YORK - A New York federal judge on Aug. 23 granted five defendants' motion to dismiss claims against them in a second amended class action complaint against 12 banks and their affiliates under the Employee Retirement Income Security Act because the plaintiffs failed to adequately plead that the defendants were ERISA fiduciaries or "parties in interest" (Doris Sue Allen, et al. v. Bank of America Corp., et al., No. 1:15cv4285, S.D. N.Y.; 2016 U.S. Dist. LEXIS 112407).

Mealey's Labor & Employment - New York Federal Judge Dismisses 5 Defendants From ERISA Class Action

NEW YORK - A New York federal judge on Aug. 23 granted five defendants' motion to dismiss claims against them in a second amended class action complaint against 12 banks and their affiliates under the Employee Retirement Income Security Act because the plaintiffs failed to adequately plead that the defendants were ERISA fiduciaries or "parties in interest" (Doris Sue Allen, et al. v. Bank of America Corp., et al., No. 1:15cv4285, S.D. N.Y.; 2016 U.S. Dist. LEXIS 112407).

Mealey's Litigation Procedure - Insurer: Nonparty Should Not Be Allowed To Intervene In Reinsurance Case

SYRACUSE, N.Y. - An insurer told a federal court in New York on Aug. 19 that another insurer has no right to intervene in a reinsurance dispute with the intention of challenging a motion to seal certain discovery documents (Utica Mutual Insurance Company v. Munich Reinsurance America, Inc., No. 12-cv-00196, N.D. N.Y.).

Mealey's Litigation Procedure - Insurer: Prospective Intervenor Should Not Be Allowed Into Arbitration Suit

NEW YORK - An insurer filed its opposition to a motion to intervene in a reinsurance arbitration dispute in a federal court in New York on Aug. 23, arguing that granting the intervention would undermine the purpose of arbitrating instead of litigating the underlying claims (Certain Underwriting Members at Lloyd's, London Subscribing to Treaty No. 0272/04 v. Insurance Company of the Americas, No. 16-cv-00374, S.D. N.Y.).

Mealey's Insurance - Insurer: Nonparty Should Not Be Allowed To Intervene In Reinsurance Case

SYRACUSE, N.Y. - An insurer told a federal court in New York on Aug. 19 that another insurer has no right to intervene in a reinsurance dispute with the intention of challenging a motion to seal certain discovery documents (Utica Mutual Insurance Company v. Munich Reinsurance America, Inc., No. 12-cv-00196, N.D. N.Y.).