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Case Summaries

Class Actions

[03/03] Byers v. Intuit, Inc.
In plaintiff's putative class action on behalf of U.S. taxpayers against the IRS and a consortium of companies in the electronic tax preparation and filing industry (FFA) claiming violations of the Independent Offices Appropriations Act (IOAA) in the charging of fees in exchange for providing e-filing services, as well as a violation of section 1 of the Sherman Antitrust Act, dismissal of both claims is affirmed where: 1) the district court was correct in holding that the IOAA does not apply to the FFA members, as it only applies to a government agency and none of the exceptions in Thomas v. Network Solutions, Inc., 176 F.3d 500 (D.C. Cir. 1999) apply; and 2) the district court did not err in dismissing the Sherman Act claim as the FFA members are entitled to conduct-based implied antitrust immunity with respect to the anti-competitive action taken pursuant to the Ceiling Provisions of the 2005 Agreement with the IRS.

[03/02] Orosco v. Napolitano
In an action seeking a writ of habeas corpus to compel defendants to issue him a law enforcement certification showing his cooperation with law enforcement under 28 U.S.C. section 2241, dismissal of the complaint is affirmed where the language of section 1184(p) made it abundantly clear that the decision to issue a law enforcement certification is a discretionary one.

[03/02] Rutti v. Vermillion
In a class action on behalf of all technicians employed by defendant to install alarms in customers' cars, in which plaintiff sought compensation for the time technicians spent commuting to worksites in defendant's vehicles and for time spent on preliminary and postliminary activities performed at their homes, summary judgment for defendant is affirmed in part where: 1) pursuant to the Employment Commuter Flexibility Act, use of an employer's vehicle to commute was not compensable even if it was a condition of employment; and 2) the conditions defendant placed on plaintiff's use of its vehicle did not make his commute compensable. However, the judgment is vacated in part where, on summary judgment, the district court could not determine that plaintiff's postliminary activities were not integral to plaintiff's principal activities.

[03/02] Reed Elsevier, Inc. v. Muchnick
In a class action alleging copyright infringement, a circuit court's ruling vacating a settlement class certification order for lack of subject matter jurisdiction is reversed where 17 U.S.C. section 411(a)'s registration requirement is a precondition to filing a copyright infringement claim, but a copyright holder's failure to comply with that requirement does not restrict a federal court's subject matter jurisdiction over infringement claims involving unregistered works.

[03/02] Pfizer v. Sup. Ct.
In plaintiffs' action against Pfizer, the manufacturer of Listerine mouthwash, pursuant to the Unfair Competition Law (UCL) and False Advertising Law claiming that Pfizer marketed the mouthwash in a misleading manner by representing that the use of it can replace the use of dental floss in reducing plaque and gingivitis, defendant's petition for writ of mandate seeking to overturn an order certifying the class action is granted as the ruling certifying a class consisting of all persons who purchased Listerine in California during a six-month period is overbroad, and In re Tobacco II Cases, 46 Cal.4th 298 (2009), does not require a different disposition in this case.

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Consumer Protection

[03/09] Martinez v. Wells Fargo Home Mortgage, Inc.
In an action under Section 8(b) of the Real Estate Settlement Procedures Act (RESPA), and California's Unfair Competition Law (UCL), claiming that a mortgage lender charged plaintiffs an illegal underwriting fee, dismissal of the complaint is affirmed where: 1) the clear and unambiguous language of RESPA Section 8(b) did not reach the practice of "overcharging"; and 2) the UCL claims alleging "unfair" and "fraudulent" conduct were preempted by the National Bank Act, and the allegations of "illegal" conduct failed to state a claim.

[03/08] Milavetz, Gallop & Milavetz, P.A. v. US
In an action by a law firm seeking declaratory relief, arguing that plaintiff was not bound by the Bankruptcy Abuse Prevention and Consumer Protection Act's (BAPCPA) debt relief agency provisions and therefore could freely advise clients to incur additional debt and need not make the requisite disclosures in its advertisements, the Eighth Circuit's order rejecting the district court's conclusion that attorneys are not "debt relief agencies" under BAPCPA, upholding application of BAPCPA's disclosure requirements to attorneys, and finding BAPCPA section 526(a)(4) unconstitutional, is affirmed in part where: 1) attorneys who provided bankruptcy assistance to assisted persons were debt relief agencies under the BAPCPA; and 2) BAPCPA section 528's requirements were reasonably related to the government's interest in preventing consumer deception. However, the court of appeals' order is reversed in part where BAPCPA section 526(a)(4) prohibited a debt relief agency only from advising a debtor to incur more debt because the debtor was filing for bankruptcy, rather than for a valid purpose.

[03/02] Pfizer v. Sup. Ct.
In plaintiffs' action against Pfizer, the manufacturer of Listerine mouthwash, pursuant to the Unfair Competition Law (UCL) and False Advertising Law claiming that Pfizer marketed the mouthwash in a misleading manner by representing that the use of it can replace the use of dental floss in reducing plaque and gingivitis, defendant's petition for writ of mandate seeking to overturn an order certifying the class action is granted as the ruling certifying a class consisting of all persons who purchased Listerine in California during a six-month period is overbroad, and In re Tobacco II Cases, 46 Cal.4th 298 (2009), does not require a different disposition in this case.

[02/22] Southwestern Bell Tel. Co. v. Mktg. on Hold Inc.
In an interlocutory appeal of a trial court's class certification order, where the class representative obtained assignments of claims that the defendant telephone company improperly charged some of its business customers certain municipal fees, the judgment of the court of appeals is reversed and the class decertified where: 1) the assignments are valid and provide standing; 2) the class representative's claims are typical of the other class members' claims; 3) common questions of law or fact predominate; but 4) the putative class representative failed to establish that it adequately represents the claim.

[02/15] In re: Barner
In debtor's appeal from the bankruptcy court's ruling finding that an automatic stay did not apply to a foreclosure sale of her home, the order is affirmed where: 1) 11 U.S.C. sections 362(d)(4) and (b)(20) did not prohibit enforcement of a 2004 order lifting the automatic stay as to debtor's residence; and 2) the Bankruptcy Abuse Prevention and Consumer Protection Act did not modify or affect orders issued in cases filed before its effective date.

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Ethics & Disciplinary

[02/26] Florida Bar v. Bitterman
A referee's report and recommendations pertaining to the misconduct of an attorney while under a rehabilitative suspension, as a result of the her inappropriate behavior in dealing with an unrepresented person and conduct involving dishonesty, are approved but the recommended sanction is disapproved and the attorney is disbarred and taxed with costs.

[02/18] In re: Saghir
The Second Circuit removes an attorney from the bar of the court of appeals, pursuant to the court's reciprocal discipline rule, on the ground that the attorney was previously disbarred by the Southern District of New York.

[02/18] Rodriguez v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C.
In an appeal from the district court's order awarding attorneys' fees after an infant compromise hearing, the award is affirmed where: 1) the district court did not err in looking beyond the retainer agreement between plaintiffs and their attorneys to the actual work performed by the various attorneys; and 2) the district court did not err in determining that appellant-attorneys did not obtain informed consent from the client for the fee-sharing agreement.

[02/17] Gebhart v. SEC
In a petition for review of the SEC's order sustaining a National Association of Securities Dealers disciplinary sanction against petitioners-securities salespersons for making false statements to clients in connection with the sale of promissory notes used to finance the conversion of mobile home parks to resident ownership, the petition is denied where the SEC considered all of the evidence bearing on petitioners' actual state of mind, including their extreme departure from ordinary standards of care, and found that they were consciously aware of the risk that their statements were false.

[01/28] Keach v. Cty. of Schenectady
In an appeal from a district court's order denying plaintiff's motion to recuse the district judge, the appeal is dismissed where the district court merely engaged in routine judicial commentary and criticism of plaintiff's counsel, while declining to impose sanctions and making no findings of professional misconduct.

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Ethics & Professional Responsibility

[03/05] Smith v. Mahoney
In a capital habeas matter, the denial of the petition is affirmed where: 1) although defense counsel inadequately investigated the facts of the case before allowing petitioner to plead guilty, petitioner did not establish that he was prejudiced by his lawyer's representation; 2) non-character, non-circumstance evidence need not factor into the constitutionality of a death sentence; and 3) petitioner failed to develop his claim of judicial bias sufficiently to warrant an evidentiary hearing.

[03/04] Coito v. Sup. Ct.
In plaintiff's wrongful death suit against the State of California and various other defendants for the drowning death of her 13-year old son, superior court's denial of plaintiff's motion to compel production of certain recorded witness statements is reversed and plaintiff's petition for a writ of mandamus granted where: 1) written and recorded witness statements, including not only those produced by the witness and turned over to counsel but also those taken by counsel, are not attorney work-product, and thus neither is a list of witnesses from whom statements have been obtained; and 2) the state failed to show that the recorded statements of the four juvenile witnesses were protected work product.

[03/03] Oasis W. Realty, LLC v. Goldman
In an appeal involving defendants' anti-SLAPP special motion to strike (Code of Civil Procedure section 425.16) plaintiff-former client's suit for various causes of action including breach of fiduciary duty, arising from defendants' prior representation in connection with plaintiff's efforts to redevelop real estate it owned in Beverly Hills, trial court's conclusion that section 425.16 did not apply because the gravamen of the action was breach of an attorney's duties of loyalty and confidentiality is reversed as all causes of action in the complaint arose from acts in furtherance of protected activity, and plaintiff could not show a probability of prevailing at trial.

[03/03] Teachers' Ret. Sys. of La. v. PriceWaterhouseCoopers LLP
In a shareholder derivative action brought on behalf of AIG for breach of fiduciary duty against PricewaterhouseCoopers under New York law, the Delaware Supreme Court certifies the following question to the New York Court of Appeals: Would the doctrine of in pari delicto bar a derivative claim under New York law where a corporation sues its outside auditor for professional malpractice or negligence based on the auditor's failure to detect fraud committed by the corporation; and, the outside auditor did not knowingly participate in the corporation's fraud, but instead, failed to satisfy professional standards in its audits of the corporation's financial statements?

[03/03] In re: Whirlpool Corp.
In a trademark infringement suit brought by LG Electronics against Whirlpool, relating to a dryer that uses steam to reduce wrinkles, Whirlpool's petition for a writ of mandate challenging the district court's order to disclose communications between its attorneys and its outside advertising agencies is denied as it failed to show both that the order will be effectively unreviewable if Whirlpool is forced to wait until the end of the case and also that the order is patently erroneous or usurpative in character. Furthermore, the Supreme Court held in Mohawk Indus., Inc. v. Carpenter, 130 S. Ct. 599 (2009), that rulings that allegedly infringe upon the attorney-client privilege are not appealable as collateral orders, and as such, the appeal must be dismissed for lack of jurisdiction.

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Injury & Tort Law

[03/10] Fortis Corp. Ins. SA. v. Viken Ship Mgmt. AS
In a maritime shipping case involving a claim for rust damage to steel coils caused by exposure to seawater during a journey from Poland to Ohio, judgment of the district court is affirmed where: 1) a ship manager charged with providing a Master, officers and crew, and performing various other ship-management tasks for the shipping vessel does not qualify as a "carrier" under the Carriage of Goods by Sea Act (COGSA), and thus the COGSA's one year-statute of limitations does not bar the underlying suit; and 2) defendant's claim that the district court's finding of negligence was based on clearly erroneous factual findings is rejected.

[03/09] Zia Trust Co. v. Montoya
In an action for excessive force brought by family members of a man defendant-officer shot and killed while responding to a domestic disturbance, denial of summary judgment based on qualified immunity is affirmed where the court could not say that a van fifteen feet away, which according to the plaintiffs was clearly stuck on a pile of rocks, gave defendant probable cause to believe that there was a threat of serious physical harm to himself or others that would justify his use of force.

[03/09] Espinosa v. City & County of San Francisco
In a 42 U.S.C. section 1983 action claiming excessive force by defendants-officers, denial of summary judgment based on qualified immunity is affirmed where: 1) defendants failed to show as a matter of law that plaintiff's decedent did not have a reasonable expectation of privacy; 2) the district court properly found that defendants failed to show as a matter of law that the emergency and exigency exceptions to the Fourth Amendment warrant requirement applied; 3) defendants failed to show that there were no questions of fact regarding whether a security guard had apparent authority to consent and implied consent; and 4) the district court did not err in finding that there were genuine issues of fact regarding whether the officers intentionally or recklessly provoked a confrontation.

[03/09] McGuan v. Endovascular Techs., Inc.
In plaintiffs' products liability action against the makers of a device for use by surgeons to treat abdominal aortic aneurysms, for injuries suffered after they were implanted with the device, grant of defendants' motion for a summary judgment is affirmed where: 1) plaintiffs' fraud claims of FDA violations are preempted under Buckman; 2) the trial court did not err in denying plaintiffs' motions to amend their complaints; and 3) the trial court did not abuse its discretion in granting defendants' motion to seal documents.

[03/09] Seltzer v. Barnes
Trial court's denial of defendant's anti-SLAPP motion, arising from an underlying suit involving claims against a property management company and homeowners' association, is reversed where: 1) the trial court erred in concluding plaintiff's two causes of action against defendant do not arise from speech or petitioning activity where his alleged conduct was the negotiation of a settlement in the prior case; and 2) because defendant may not be held liable for the alleged conduct under the litigation privilege, plaintiff has failed to show a probability of prevailing on her causes of action for fraud and intentional infliction of emotional distress.

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Legal Malpractice

[03/04] Aills v. Boemi
In plaintiff's medical malpractice suit against defendant plastic surgeon arising out of negligence in connection with an elective surgical procedure for breast reconstruction, the judgment of the Second District Court of Appeal is quashed and remanded as the district court erred in reversing for a new trial on the basis of an improper argument by plaintiff's counsel during closing argument.

[03/03] Willis v. Bender
In an action for lack of informed consent and medical malpractice, judgment for defendant is affirmed in part where there was no evidence, specifically expert testimony, that another physician was negligent and therefore no basis to hold defendant liable for his negligence. However, the judgment is reversed in part where defendant's alleged misrepresentations to plaintiff in response to her direct questions allegedly induced her to consent to the surgery and its risks, and under those circumstances, if proved, her consent could hardly be considered "informed".

[03/03] Oasis W. Realty, LLC v. Goldman
In an appeal involving defendants' anti-SLAPP special motion to strike (Code of Civil Procedure section 425.16) plaintiff-former client's suit for various causes of action including breach of fiduciary duty, arising from defendants' prior representation in connection with plaintiff's efforts to redevelop real estate it owned in Beverly Hills, trial court's conclusion that section 425.16 did not apply because the gravamen of the action was breach of an attorney's duties of loyalty and confidentiality is reversed as all causes of action in the complaint arose from acts in furtherance of protected activity, and plaintiff could not show a probability of prevailing at trial.

[03/02] Davis v. Brouse McDowell, LPA
In plaintiff's legal malpractice suit claiming that defendants failed to timely file three patent applications related to a website-search engine, summary judgment in favor of the defendants is affirmed where: 1) the district court exercised proper jurisdiction over plaintiff's malpractice cause of action; 2) the court did not abuse its discretion in striking portions of the supplemental affidavit of plaintiff's patent law expert; and 3) plaintiff failed to introduce evidence sufficient to establish a genuine issue of material fact as to the patentability of her inventions.

[02/26] Aills v. Boemi
In plaintiff's medical malpractice suit against a plastic surgeon for negligence in connection with a procedure of breast reconstruction, the decision of the second district court of appeal reversing a judgment in favor of plaintiff is quashed and remanded as the court erred in reversing for a new trial on the basis of an improper argument by plaintiff's counsel during closing argument.

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Oil & Gas

[03/04] MacClarence v. EPA
In a petition for review of the EPA's order denying petitioner's request that the EPA object to the issuance of a Clean Air Act Title V permit for pollutant-emitting activities at an oil and gas processing facility, the petition is denied where: 1) the EPA Administrator's conclusion that petitioner failed to provide adequate information to support his claim that the entire facility should be aggregated was not arbitrary or capricious; and 2) the Administrator's order denying the petition properly set forth petitioner's burden under 42 U.S.C. section 7661d(b)(2), stating that "to justify exercise of an objection by EPA to a title V permit pursuant to section 7661d(b)(2), a petitioner must demonstrate that the permit is not in compliance with the requirements of the CAA" and later concluding that "the general allegations of the Petitioner in the April 2004 Petition . . . fail to demonstrate a basis for Petitioner's claim that Revision 1 to the GC 1 Permit violates the CAA . . . ."

[03/02] Mac's Shell Serv., Inc. v. Shell Oil Prods. Co.
In an action under the Petroleum Marketing Practices Act (Act) by service station franchisees, alleging that a petroleum franchisor, Shell, and its assignee had constructively terminated their franchises and constructively failed to renew their franchise relationships by substantially changing the rental terms that the dealers had enjoyed for years, increasing costs for many of them, a circuit court's order partially affirming judgment for plaintiffs is affirmed in part where a franchisee who signs and operates under a renewal agreement with a franchisor may not maintain a constructive nonrenewal claim under the Act. However, the court of appeals' order is reversed in part where a franchisee cannot recover for constructive termination under the Act if the franchisor's allegedly wrongful conduct did not compel the franchisee to abandon its franchise.

[02/26] Resolute Natural Resources Co. v. FERC
In a petition for review of certain orders of the Federal Energy Regulatory Commission (FERC) declining to investigate allegedly anticompetitive conduct by a refining company involving oil pipelines in New Mexico, the petition is dismissed where FERC decisions not to investigate were not subject to review.

[02/26] Iberdrola Renewables, Inc. v. FERC
In a petition for review of the Federal Energy Regulatory Commission's (FERC) decision to allow a pipeline to change its rates without first obtaining the FERC's approval, the petition is denied where the contract at issue specifically disclaimed the need for FERC approval of rate changes.

[02/24] Niagara Mohawk Power Assn. v. Chevron U.S.A., Inc.
In an action to recover costs pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), summary judgment for defendants is affirmed in part where: 1) allowing plaintiff to proceed under 42 U.S.C. section 107(a) would in effect nullify the Superfund Amendments and Reauthorization Act amendment and abrogate the requirements Congress placed on contribution claims under section 113; and 2) plaintiff did not offer evidence that it incurred costs as to certain disputed areas. However, the judgment is reversed in part where: 1) the 2003 Consent Order between plaintiff and the New York State Department of Environmental Conservation qualified as "an administrative or judicially approved settlement" under section 113(f) (3)(B), and thus plaintiff was entitled to seek contribution under CERCLA; and 2) plaintiff introduced evidence that defendant's asphalt facility produced or used hazardous materials that may have been released with the asphalt at issue.

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Professional Malpractice

[03/04] Aills v. Boemi
In plaintiff's medical malpractice suit against defendant plastic surgeon arising out of negligence in connection with an elective surgical procedure for breast reconstruction, the judgment of the Second District Court of Appeal is quashed and remanded as the district court erred in reversing for a new trial on the basis of an improper argument by plaintiff's counsel during closing argument.

[03/03] Willis v. Bender
In an action for lack of informed consent and medical malpractice, judgment for defendant is affirmed in part where there was no evidence, specifically expert testimony, that another physician was negligent and therefore no basis to hold defendant liable for his negligence. However, the judgment is reversed in part where defendant's alleged misrepresentations to plaintiff in response to her direct questions allegedly induced her to consent to the surgery and its risks, and under those circumstances, if proved, her consent could hardly be considered "informed".

[03/03] Oasis W. Realty, LLC v. Goldman
In an appeal involving defendants' anti-SLAPP special motion to strike (Code of Civil Procedure section 425.16) plaintiff-former client's suit for various causes of action including breach of fiduciary duty, arising from defendants' prior representation in connection with plaintiff's efforts to redevelop real estate it owned in Beverly Hills, trial court's conclusion that section 425.16 did not apply because the gravamen of the action was breach of an attorney's duties of loyalty and confidentiality is reversed as all causes of action in the complaint arose from acts in furtherance of protected activity, and plaintiff could not show a probability of prevailing at trial.

[03/02] Davis v. Brouse McDowell, LPA
In plaintiff's legal malpractice suit claiming that defendants failed to timely file three patent applications related to a website-search engine, summary judgment in favor of the defendants is affirmed where: 1) the district court exercised proper jurisdiction over plaintiff's malpractice cause of action; 2) the court did not abuse its discretion in striking portions of the supplemental affidavit of plaintiff's patent law expert; and 3) plaintiff failed to introduce evidence sufficient to establish a genuine issue of material fact as to the patentability of her inventions.

[02/26] Aills v. Boemi
In plaintiff's medical malpractice suit against a plastic surgeon for negligence in connection with a procedure of breast reconstruction, the decision of the second district court of appeal reversing a judgment in favor of plaintiff is quashed and remanded as the court erred in reversing for a new trial on the basis of an improper argument by plaintiff's counsel during closing argument.

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Transportation

[03/10] Fortis Corp. Ins. SA. v. Viken Ship Mgmt. AS
In a maritime shipping case involving a claim for rust damage to steel coils caused by exposure to seawater during a journey from Poland to Ohio, judgment of the district court is affirmed where: 1) a ship manager charged with providing a Master, officers and crew, and performing various other ship-management tasks for the shipping vessel does not qualify as a "carrier" under the Carriage of Goods by Sea Act (COGSA), and thus the COGSA's one year-statute of limitations does not bar the underlying suit; and 2) defendant's claim that the district court's finding of negligence was based on clearly erroneous factual findings is rejected.

[03/02] Bhd. of Maint. of Way Employees' Div. v. Burlington Northern Santa Fe Railway Co.
In an action by a union claiming that a railroad's proposed sale of a portion of its rail line to the state violated the Railway Labor Act (RLA), dismissal of the action is affirmed where the RLA reserved the dispute in this case to the Adjustment Board in the first instance, thus depriving the district court of jurisdiction, and the workers' remedy thus lay in the administrative process before the Adjustment Board.

[02/26] Pasternack v. NTSB
In a petition for review of the FAA's revocation of petitioner's airman certificates on the ground that petitioner refused to take a mandatory drug test, the petition is granted where the FAA erred by relying on an "implicit credibility determination" by the Administrative Law Judge (ALJ), when in fact the ALJ made no such credibility determination.

[02/24] American Trucking Assns., Inc. v. Los Angeles
In an action seeking preliminary injunctive relief against certain regulations imposed by the Port of Los Angeles, a local governing body, upon motor carriers entering the Port premises, a denial of injunctive relief is affirmed in part where: 1) the Port was acting out of safety concerns when it enacted each challenged requirement; and 2) the Federal Motor Carrier Act granted only the Interstate Commerce Commission, the agency charged with issuing certificates of convenience, the power to revoke motor carriers' certificates of convenience. However, the order is vacated in part where 49 U.S.C. section 14506(a) did not contain a safety exception.

[02/23] Brown v. Ala. Dep't of Trans.
In a Title VII action alleging a racially discriminatory failure to promote plaintiff, judgment for plaintiff is affirmed in part where there was ample evidence of racial discrimination specific to three of the promotions at issue, suggesting that defendant's proffered reasons were pretextual. However, the judgment is reversed in part where: 1) the evidence was insufficient to support a finding of discrimination or retaliation as to the remaining six promotions; 2) the jury's backpay award was plainly a cumulative figure reflecting each of the promotions, and thus a remand for recalculation was required; and 3) clarification was also required as to a portion of a permanent injunction requiring that plaintiff be instated to a "comparable position" pending her promotion.

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