In an unpublished opinion, the Oklahoma Supreme Court recently held that a medical device manufacturer can be liable for a plaintiff's injury under state law for violating federal regulations. See Howard et al v. Zimmer Inc., et al. 2013 OK 17 (March 19, 2013.) The majority of the Court held that the Federal Food, Drug, and Cosmetic Act (FDCA) does not bar Oklahoma plaintiffs from bringing negligence per se claims based on violation of regulations under the FDCA medical device amendments.
Nunag–Tanedo v. East Baton Rouge Parish School BoardLPL eAdvisory, April 2013
On March 8, 2013, the U.S. Citizenship and Immigration Services released a new Employment Eligibility Verification Form I-9 for immediate use by employers for new hires, re-verification and re-hires.
Too often, settlements–and even settlement discussions–in a civil action involving a Medicare claimant have been delayed because the parties had not received Medicare’s updated conditional payment information (i.e., Medicare lien) in a timely manner. Without this information, the parties have had difficulty moving forward to resolve their cases because they cannot determine how much of any settlement funding would have to be allocated to repaying Medicare.
Published in Riding the E&O Line, the newsletter of the DRI Professional Liability Committee.
Coming on the heels of its decision in Staples v. Allstate Ins. Co., (No. 86413-6, 2013 WL 258877) where it held that substantial prejudice must be shown before a carrier can deny a claim due to the insured’s failure to submit to an Examination Under Oath, the Washington Supreme Court has handed first party insurers another setback. In their ruling in Cedell v. Farmers Insurance Company of Washington (No. 85366-5, Wash. Feb. 21, 2013), the Washington Supreme Court held that there is a presumption of no attorney-client privilege regarding discoverability of the claim file in a first party bad faith action. However, they also held that the insurer can overcome this by showing that its counsel was not engaged in the tasks of investigating and evaluating or processing the claim.
The U.S. Department of Labor recently issued new regulations expanding coverage under the Family and Medical Leave Act for certain classes of employees. The changes expand coverage for military family leave, leave for caregivers of adult children with disabilities and airline crew personnel. These regulations go into effect on March 8, 2013.
Effective as of January 1, 2013, new California laws further restrict the scope of indemnity provisions in construction contracts, necessitating that contracts be carefully reviewed. These significant modifications are a result of a growing national effort by contractors and subcontractors to limit their indemnity and defense obligations for work performed on both public and private works projects. One of these new laws voids indemnity provisions in construction contracts that require or "purport to insure or indemnify, including the cost to defend, a general contractor, construction manager, or other subcontractor, by a subcontractor against liability for claims… to the extent the claims arise out of, pertain to, or relate to the[ir] active negligence or willful misconduct." (Civil Code Section 2782.05). In plain English, these new laws prohibit indemnity provisions that attempt to shift liability or defense obligations for the active negligence of the party to be indemnified.
On Friday, February 1, 2013, the Centers for Medicare & Medicaid Services (CMS) announced that a final rule will be published requiring manufacturers of drugs, devices, biologicals and medical supplies covered by Medicare, Medicaid or the Children’s Health Insurance Program to annually report payments or other transfers of value made to physicians and teaching hospitals. Additionally, applicable manufacturers and group purchasing organizations will be required to annually report certain physician ownership or investment interests, including interests held by immediate family members of physicians. Applicable manufacturers and group purchasing organizations must begin collection of the required data on August 1, 2013 and report the data to CMS by March 31, 2014, which will be published on a public website by September 30, 2014.
A new Washington Supreme Court decision raises important considerations for insurers that seek to invoke the EUO provisions in their policies and potentially deny coverage for the failure of the insured to sit for an EUO in California and elsewhere.On January 24, 2013, in Staples v. Allstate Ins. Co., (No. 86413-6, 2013 WL 258877), the Supreme Court of Washington reversed a summary judgment in favor of Allstate despite the insured’s alleged, but disputed failure to comply with the carrier's demand for his examination under oath ("EUO"). Although the decision was based upon the existence of material issues of fact, the Court nonetheless held that an insurer cannot deny a first-party property insurance claim based solely on the insured's failure to attend an EUO unless (1) the carrier can demonstrate that the EUO request was material to the investigation of the claim and (2) that the insured's failure to comply prejudiced the carrier's rights.
Bank of America v. Superior Court LPL eAdvisory, February 2013
In a recent decision, the Seventh Circuit Court of Appeals decided that a party seeking to pursue both a cost recovery and contribution claim under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) was impermissible. Bernstein v. Bankert, No.11-1501, 11-1523, ___ F.3d ___, 2012 WL 6601218 (Dec. 19, 2012) ("Bernstein"). In reaching its decision, the circuit court joined other circuit courts which have similarly held that the potential for bringing both claims, while theoretically possible according to the Supreme Court in Atlantic Research, is best left to theory. As support for its decision, the circuit court relied upon the United States Supreme Court's decision in Burlington Northern which discussed the availability of apportionment and the impact of that availability on joint and several liability. Given the recent decision in Bernstein, it would seem advisable that election of the appropriate CERCLA claim—cost recovery or contribution—at the outset is the most significant decision an environmental practitioner faces pre-litigation.
A California appellate court recently awarded attorney's fees to a subcontractor even though the subcontractor lost at trial and was required to pay monetary damages to the general contractor. Typically, when a party recovers damages against another party they are deemed to be prevailing and may seek attorney's fees and costs pursuant to a statute or contract. However, in Barnhart v. CMC Fabricators, Inc., the Court held that a subcontractor who successfully defended a breach of contract cause of action was entitled to attorney’s fees and costs even though the general contractor prevailed on a promissory estoppel theory and was awarded damages.
A recent Ninth Circuit Court of Appeals en banc decision marks a less than desirable shift in preemption law for medical device manufacturers. In Stengel v. Medtronic Inc., the Ninth Circuit granted rehearing en banc and unanimously reversed the decision of the district court in a product liability case by holding that the Medical Device Amendments of the Federal Food, Drug and Cosmetic Act did not preempt the plaintiffs’ state-law failure-to-warn claim, which was contained in the plaintiffs’ proposed amended complaint. As a result of this decision, plaintiffs may be more likely to elude preemption. However, because the decision highlights a circuit split with regard to preemption of state-law failure-to-warn claims, the U.S. Supreme Court could conceivably grant a writ of certiorari to resolve the circuit split, which could lead to a more positive outcome for medical device manufacturers.
In a decision last week, the United States Supreme Court in the recent decision of Los Angeles Flood Control v. NRDC, Inc. CITE (LA Flood Control) touched upon an issue that oftentimes goes without scrutiny by the courts – actual evidence demonstrating a violation of the Clean Water Act (CWA). While the thrust of the Supreme Court’s decision focused on other issues, the brief discussion and reaffirmation of both the District Court for the Central District of California and Ninth Circuit Court of Appeals’ decision to deny part of the motion for summary judgment brought by NRDC on the lack of offered evidence in support of the citizen suit is notable. We see that many citizen suits brought under the CWA typically rely on periodic evidence offered by permit holders when reporting in tandem with weather or other such regional history. By supporting the District Court’s view, the Supreme Court has signaled that such generalized efforts are simply not sufficient to support such claims.
Beginning January 1, 2013, two laws have been amended which affect itemized pay stubs and employees’ rights to review personnel records. Employers need to be aware of these changes to Labor Code section 226 and Labor Code section 1198.5 as these revisions dramatically affect these laws.
Beginning January 1, 2013, depositions in California state cases will be limited to seven hours. Previously, there was no presumptive time limit for the completion of depositions under the California Code of Civil Procedure. The new time limit has the potential to change the landscape of discovery in California state court cases and will pose new challenges to both plaintiff and defense counsel.
Attorney Chris Foster sat down with Mikk Anderson, the senior vice president and a founding member of International Risk Group, LLC (IRG), and two of Mikk’s colleagues, Brent Anderson, IRG’s CEO, and Dwight Stenseth, vice president for real estate, for a candid and wide-ranging discussion of the many challenges facing current brownfield development.
Published in ABA SEER Environmental Transactions and Brownfields Committee Newsletter, December 2012.
A recent California Court of Appeal decision out of the Second District has provided further clarity to the scope of California products liability law by reasserting the general rule that precludes strict liability for design defect for an implantable medical device. In Garrett v. Howmedica Osteonics Corp., the appellate court held that the exclusion of strict products liability design defect claims extends to any implanted medical device that is made available through the services of a physician, regardless of whether or not the implantable device is "prescribed."
With the upcoming election, it is time for employers to get reacquainted with the requirements regarding time off that should be given to employees to vote. While there is no federal law mandating employers to give employees time off to vote, the majority of states require time off to vote.
On November 6, 2012, Californians will vote on Proposition 37, the Mandatory Labeling of Genetically Engineered Food Initiative. If it passes, California will become the first state to require labeling of genetically engineered foods.
According to California’s Legislative Analyst, Prop 37 would require that raw foods produced entirely or in part through genetic engineering be labeled with the words "Genetically Engineered" on the front package or label. Processed foods produced entirely or in part through genetic engineering would have to be labeled with the words, "Partially Produced with Genetic Engineering" or "May be Partially Produced with Genetic Engineering." Prop 37 would prohibit labeling and advertising of such foods as "natural."
MPP attorney J. Scott Miller co-authored "Recent Developments in Insurance Coverage," discussing the topic of "Insurer’s Obligation to Provide Independent Counsel." When an insurer provides a defense under reservation of rights, including the right to assert defenses to coverage based on claims raised in the underlying action against the insured, a conflict of interest may arise between the insurer and the insured. Under these circumstances, insurers must provide independent counsel of the insured’s choosing to represent the insured’s interests in the litigation. Several notable decisions this year addressed the scope of an insurer’s obligation to provide and fund independent counsel. In particular, courts have considered when a conflict sufficient to entitle the insured to independent counsel arises, and the scope of an insurer’s rights and obligations with respect to controlling the litigation and paying independent counsel’s fees. As the decisions below indicate, courts have consistently ruled in favor of insurers.Published in the Fall 2012 issue (48:1) of the Tort Trial & Insurance Practice Law Journal.
On September 21, 2012, the Ninth Circuit affirmed the district court’s dismissal of the nuisance abatement suit in Native Village of Kivalina v. Exxonmobil Corp. ("Kivalina") on the basis that the Clean Air Act and actions by the Environmental Protection Agency directly displace any federal common law right to seek abatement of greenhouse gas emissions. The court ruled against the northwest Alaskan village of Kivalina, which had sued energy companies over claims that greenhouse gas emissions contributed to global warming that is threatening the community's existence.
Recently, the Ninth Circuit Court of Appeals affirmed a district court ruling (Rosa v. TASER International, Inc., 684 F.3d 941 (9th Cir. 2012)), which upheld the state of the art defense and ruled that a stun gun manufacturer had no duty to warn that repeated applications of stun guns could lead to fatal levels of metabolic acidosis despite the plaintiffs’ reliance on peer reviewed articles to show that the defendant was on notice.
In ruling, the Court of Appeals confirmed that a manufacturer is not under a duty to warn of every report of a possible risk regarding its product because warning of every hint of danger would "dilute the force of any specific warning given." Although the plaintiffs relied on peer reviewed articles to support their claim that it was "known or knowable" that stun guns could cause fatalities resulting from metabolic acidosis, the court determined that the literature did not present a triable issue with respect to notice because it failed to establish a causal link between stun guns and metabolic acidosis to put the defendant on notice. The court found that the literature, at best, consisted of conjecture and unproven hypothesis.
Practitioners who push the envelope of colorability on appeals should be on alert. Several recent cases show that the Court of Appeal’s patience for frivolous appeals has been exhausted. The Court appears more willing to call an appeal frivolous and sanction both the lawyers and the parties involved. In this article, we provide some tips for recognizing and dealing with this new reality.
As recently confirmed, an "appeal is frivolous 'only when it is prosecuted for an improper motive—to harass the respondent or delay the effect of an adverse judgment — or when it undisputably has no merit — when any reasonable attorney would agree that the appeal is totally and completely without merit.'" Personal Court Reporters, Inc. v. Rand (2012) 205 Cal.App.4th 182, 191, quoting In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650.
Recently, an influential U.S. appeals court ruled on a copyright infringement dispute between an architecture firm and its former client (Scholz Design v. Sard Custom Homes). The decision provides architects with welcome clarity regarding the extent of copyright protection provided to project documents. The decision also provides end users, such as developers and real estate firms, with guidance regarding the use of the architect's drawings. Finally, the decision provides an opportunity for all parties in the design and construction process to use contractual provisions to clarify their rights to use these documents in marketing efforts to their mutual benefit.
Yesterday the California Supreme Court issued its long-awaited decision in State of California v. Continental Insurance Co. (2012 WL 3206561, Case No.: S170560) in which it adopted an "all-sums-with-stacking" allocation rule for long-tail injury claims. This rule allows a policyholder to recover "all sums" up to each policy's limit for progressive damage to property so long as a portion of the damage "occurred" during an insurer's policy period. The rule also allows a policyholder to "stack" policy limits so that each policy may be "called upon to respond to the claim up to the full limits of the policy." In resolving both allocation and stacking in favor of the policyholder, the California Supreme Court has essentially held that an insured may control which policy or policies should respond to a progressive damage claim, regardless of any gaps in the insured's coverage history.
On June 25, 2012, the California Supreme Court reversed and remanded an appellate court decision (Coito v. Superior Court, 182 Cal.App.4th 758 (2010)) that had held attorney-recorded witness statements were not protected by the work product privilege under California Code of Civil Procedure section 2018.030.
In a unanimous opinion, the Supreme Court in Coito v. Superior Court (2012) held that qualified work product protection applies to all witness statements obtained through an attorney-conducted interview and may be entitled to absolute protection upon a proper showing. As to the identity of witnesses from whom counsel has obtained a written or recorded statement, the Supreme Court held that this information is not automatically entitled as a matter of law to absolute or qualified work product privilege, but may be upon proper showing by counsel.
In defending drug and device companies, we routinely find that the individuals who possess the key knowledge or background information about the product at issue are no longer with the company. Further, it is not unusual for plaintiffs to seek depositions from former management and critical decision makers who were in place at the time of the events at issue, but are no longer employed by your client. Since the rules that apply to these former employees vary greatly from the rules for existing employees, and because former employees' testimony can have a significant impact on the outcome of the litigation, counsel need to be cautious in how to approach these depositions.
Published in RX for the Defense, the Newsletter of the DRI Drug and Medical Device Committee.
A manufacturer's compliance with industry standards may provide some protection against strict products liability design defect claims. Manufacturers facing a strict products liability design defect claim can feel some measure of comfort from a decision earlier this year in Howard v. Omni Hotels Management Corporation (2012) 203 Cal.App.4th 403, 136 Cal.Rptr.3d 739, where the California Court of Appeal ruled that a manufacturer’s compliance with industry standards and regulations can be relevant to the issue of defective design, in light of all other relevant circumstances, even if such compliance is not a complete defense. However, this ruling should be balanced with another decision out of the 9th Circuit last year in Oswalt v. Resolute Industries, Inc., 642 F.3d 856 (2011), in which the Court did not give much weight to a manufacturer's compliance with industry safety standards.
As many of you know, in 2010 Senate Bill 189 was signed into law by Governor Brown, which rephrased and restructured the law pertaining to Mechanics Liens, Stop Notices, bond claims and prompt payment statutes. These sweeping changes, long in the making, take effect today (the actual effective date of July 1, 2012 being a Sunday).
The ABA YLD 101 Practice Series article entitled "Understanding the Basics of CERCLA" discusses the liability framework, removal and remedial response actions, cost recovery actions, and contribution protection under the Comprehensive Environmental Response Compensation and Liability Act ("CERCLA"). This article discusses the available landowner defenses to liability under CERCLA. Courts have consistently held that the liability of potentially responsible parties is strict, joint, and several, so the federal government does not need to prove that the owner, operator, arranger, or transporter contributed to the release in any manner in order to establish a prima facie case under CERCLA. See Emhart Indus., Inc. v. Century Indem. Co., 559 F. 3d 57, 60 (1st Cir. 2009); U.S. v. Colorado & Eastern R. Co., 50 F.3d 1530, 1535 (10th Cir. 1995). This liability standard discouraged parties from acquiring, financing, and developing contaminated properties known as brownfields.
Yesterday, the United States Supreme Court held that President Obama's hotly contested health care reform law, the Patient Protection and Affordable Care Act ("ACA"), was constitutional. The challenge to the ACA revolved around two key provisions of the act: the individual mandate and the expansion of the Medicaid program. The Court determined that the ACA's "individual mandate" is a tax and therefore a proper exercise of Congress' express, constitutional powers. The Court further determined that the ACA's Medicaid expansion provisions could survive once the Court prohibited the Secretary of Health and Human Services from withholding all federal Medicaid funding, including existing federal Medicaid funds, from States which did not want to comply with Medicaid expansion. With the Court's ruling, businesses across the board – and not just those in the health care industry – must now engage in a careful and thorough analysis of the ACA's expansive requirements and its effects to ensure compliance with all applicable provisions.
In the recent case of Shields v. Hennessy Industries, Inc. (2012) 205 Cal.App.4th 782, 140 Cal.Rptr.3d 268, the First Appellate District of the Court of Appeal of California held that an injured plaintiff may maintain causes of action for strict products liability and negligence against the manufacturer of a machine designed and used "exclusively" for the purpose of grinding brake linings that contain asbestos – even though the machine itself did not contain asbestos. Because the alleged "sole and intended use" of the machine resulted in the release of asbestos particles, allegedly leading to plaintiffs’ injuries, the manufacturer was not shielded from potential liability by the "components part" doctrine under California law.
The landscape regarding bystander asbestos exposure is about to change, with the most recent California Appellate Court opinion holding that premises defendants cannot be found liable under a bystander asbestos exposure claim. On May 21, 2012, the Court of Appeal of the Second Appellate District of California in Campbell v. Ford Motor Company held that an employer has no duty to protect family members of employees from secondhand exposure to asbestos used during the course of the employer’s business.
Mobile medical applications (mobile medical apps or MMAs) are software programs that run on smartphones, tablet computers and other mobile communications devices. Last July, the Food and Drug Administration (FDA) issued a new draft guidance document, titled Mobile Medical Applications, describing the FDA’s intention to bring mobile medical applications within its regulatory reach.
Published in The Voice DRI Newsletter, Volume 11, Issue 22.
Filing an anti-SLAPP motion can be a perilous business, and you need to understand where you’re going. Not only can filing such a motion more than 60 days after service of the complaint kill your motion, it might even result in sanctions against you. A recent Court of Appeal decision appears to sharpen the teeth in the 60-day filing requirement in section 425.16(f). In Chitsazzadeh v. Kramer & Kaslow (2011) 199 Cal.App.4th 676, the Court of Appeal upheld a trial court’s discretion to refuse to hear the merits of an untimely motion. There, the defendants filed their anti-SLAPP motion some 113 days after being served with the complaint by substitute service, without seeking leave from the trial court to file a late motion. (Id. at pp. 680-681.) Plaintiff opposed and sought to strike the anti-SLAPP motion as untimely; the trial court agreed, resulting in the denial of the anti-SLAPP motion. (Id. at p. 679.)
After a long and arduous road, the Supreme Court has finally issued its opinion in the long awaited case of Brinker v. Superior Court (Hohnbaum), S166350. As discussed in the article linked below, the opinion can be seen as a rare victory for employers in California. To summarize, in Brinker, the Supreme Court was faced with deciding multiple issues implicating an employer's obligations regarding meal and rest periods, including: (1) Must employers ensure that meal periods are taken or simply make them available? (2) When during an employee’s shift must a meal period occur? (3) When must a second meal period be provided? (4) How long and when must rest periods be taken? Additionally, the Supreme Court was tasked with determining the suitability of meal and rest period claims for class certification.
This article, written by MPP partner Steven Hoch, was published in the Coalition of Labor, Agriculture and Business (COLAB) Newsletter, Vol.21 Issue 4, April 2012.
One of the bulwarks of the EPA’s power has been its ability to develop a remedial plan that is virtually unchallengeable until it is completed. This provides it with enormous leverage in extricating settlements from Potentially Responsible Parties ("PRP"), but also locks them into an unbending course of action that, many times, is driven by incomplete facts, scientific misjudgments, and bureaucratic resistance to challenge. All this is going to change, however, with the U.S. Supreme Court’s ruling that landowners can sue to challenge an EPA-issued compliance order under the Clean Water Act (Sackett v. Environmental Protection Agency, No. 10-1062). In so doing, the Court overturned a U.S. appellate court ruling that a compliance order was not subject to judicial review until the EPA brings an enforcement action and seeks to have a judge rule in its favor.
Today, in a case that seems "ripped from the headlines," the California Supreme Court held that a school district may be vicariously liable for its administrative personnel who negligently hire, retain, and supervise a predatory employee. The unanimous opinion in C.A. v. William S. Hart Union High School District, which reinstates a lawsuit brought by a high school student, breaks new legal ground, green-lighting the pursuit of supervisory or administrative personnel who knew, or should have known, of an employee’s predatory propensities.
In February 2012, the California Court of Appeal for the Second District in Maxton v. Western States Metals, et al. upheld a line of case law developed in California to protect component part suppliers from liability arising from finished products into which their wares are integrated and over which they have no control.
In the recent case of Hennigan v. White, the California Court of Appeal for the Third District affirmed summary judgment for a Defendant cosmetologist where Plaintiff suffered an allergic reaction to a product the cosmetologist used on the Plaintiff. The Court said that the allergic reaction alone was insufficient to defeat summary judgment as the reaction alone was not enough to establish that the product was defective.
Cyberbullying is a serious matter, as evidenced by the recent stories of teenagers who have taken their own lives after being victims of cyberbullies. Despite these tragic events, courts have failed to clarify the extent of a school administrator’s authority to discipline students for cyberbullying.
The California Supreme Court recently issued its decision in Harris v. Superior Court, an overtime pay case that addresses whether certain claims adjusters are exempt under California’s Industrial Welfare Commission Wage Order 4.
On October 9, 2011, California Governor Jerry Brown signed almost two dozen new California human resources and labor-related bills into law, effective in 2012. One of the new bills, AB-22, deals with prohibiting the use of credit reports in employment. This legislation prohibits employers from using an employee’s credit history in making most employment decisions. This also applies to applicants interviewing for a job.
On January 17, 2012, the United States Supreme Court, without comment, denied review to three cases. In doing so, the Supreme Court let stand two rulings that allowed lawsuits to proceed against school districts which had disciplined students for social media-related acts that targeted principals and where there was no evidence that the social media-related acts disrupted the school. But, the Supreme Court also let stand the dismissal of a lawsuit for disciplinary action against a student for social media-related acts that targeted another student and that evidently disrupted the school environment.
The Superior Court of California recently held that a sponsor of a Phase I clinical trial could not be held liable by a trial participant for injuries that she allegedly sustained as a result of a medical procedure conducted on her during the trial, effectively ending the case against the sponsor.
After years of ambiguity and debate, the California Supreme Court has now clearly recognized the Replacement Parts Doctrine in a unanimous decision that reversed a Court of Appeal opinion that would have allowed manufacturers to be held liable for injuries caused by products that they did not manufacture, sell, or distribute.
The U.S. Environmental Protection Agency reportedly issues approximately 3,000 administrative compliance orders a year to businesses and individuals in which it demands that alleged violations of environmental laws cease on the threat of potential large daily fines and penalties. Insurance companies are certainly aware of the implication of such an order and, depending on the applicable policy language for the individual or business that receives such a compliance order, the possibility of large and long term costs required to remedy the alleged violation.
What if however, the EPA's findings were incorrect and, for example, a property owner's land was not actually protected by the federal law the EPA relies upon? What if the evidence the EPA relied upon in issuing the order was a news clipping or some other unscientific means of verifying the protected status of the land? Would the recipient of the order have the ability to challenge the administrative order right away or would he have to wait for the EPA to actually commence an enforcement action?
Published in Covered Events, the newsletter of the DRI Insurance Law Committee.
The American Bar Association recently issued an ethics opinion which stated that if a client communicates with an attorney about substantive legal issues using an employer-owned computer, handheld device or network, the attorney must assume the employer has a right to access the communications and, therefore, the attorney must warn the client about such risk. Although the opinion addresses an attorney’s ethical duty to warn clients who use workplace computers or devices to communicate with their attorney that such communications may not be protected by the attorney-client privilege, the reasoning underlying the opinion has employment law implications.
The frequency of cyberbullying in educational institutions is on the increase and can take many different forms:
The key for educational institutions is to take positive steps to educate students on potential adverse effects and how their actions could affect others. Prevention is definitely the most effective route for educational administrators to take.
Whether an order or judgment is appealable is not always obvious on its face. In a decision that only an appellate geek could love, the 4th District Court of Appeal recently held that for a dismissal order to be appealable it must be written and signed by the judge. This court also joined a chorus of other appellate courts, in holding that an order denying a reconsideration motion is not separately appealable. Sexy ruling, right? Maybe not, but a very important one for trial and appellate practitioners alike who want to make sure their appeals can lift off the ground.
Published in the October 2011 edition of LAAHRP (Los Angeles Advertising Human Resources Professionals) Magazine.
On Sept. 21, the 9th U.S. Circuit Court of Appeals issued its decision in Lopez v. Pacific Maritime Association, 2011 DJDAR 14348 (9th Cir. Sept. 21, 2011), finding that the Americans with Disabilities Act and the Fair Employment Housing Act do not protect people who are using illegal drugs when they apply for a job. Companies may lawfully exclude job applicants who were using illegal drugs when they apply for a job, and a disparate impact claim will fail absent any evidence that the practice of permanently disqualifying applicants with drug use excluded recovering or recovered drug addicts disproportionately.
Just when you thought it was safe to make comments out of earshot of a potential plaintiff, a California Court of Appeal in the case of Pantoja v. Anton reversed a judgment in favor of the employer and ordered a new trial because the trial court should have admitted "me too" evidence of alleged racial and gender bias.
This summer, the Supreme Court of California announced that non-resident employees may sue their California-based employer for overtime pay under California Labor Code sections 510 and 1194 based on work they performed in California, even if that work was only on a temporary or short-term basis. The Court suggested, without holding, that the same overtime requirements may apply to non-California employers who send non-resident employees to California on temporary or short-term work assignments.
A recent case, Securitas v. Superior Court (2011) 197 Cal.App.4th 115, is helpful in clarifying what constitutes – and does not constitute – a split shift for purposes of Industrial Welfare Commission Wage Order No. 4. Wage Order No. 4 entitles employees to a potential additional hour of pay at the minimum wage for any workday they work a split shift. The Wage Order defines "split shift" as "a work schedule, which is interrupted by non-paid non-working periods established by the employer, other than bona fide rest or meal periods."
Since the first Facebook-related employment case in November 2010, there have been in excess of 150 new NLRB complaints. In an effort to clarify NLRB's position in this type of case, NLRB's Office of General Counsel has released further guidance for Employers and Employees.
The California Supreme Court recently limited defendants' liability for "medical special" damages, which ultimately will reduce the amount a plaintiff can recover in personal injury construction-related claims. In Howell v. Hamilton Meats & Provisions, Inc., the California Supreme Court held "that an injured plaintiff whose medical expenses are paid through private insurance may recover as economic damages no more than the amounts paid by the plaintiff or his or her insurer for the medical services received or still owing at the time of trial." The Court rejected plaintiff arguments that defendants are liable for the full "billed" amount, regardless of any discount the insurer may negotiate. "We hold no such recovery is allowed, for the simple reason that the injured plaintiff did not suffer any economic loss in that amount." The Court's ruling prevents plaintiffs from recovering in damages more than the actual harm incurred.
A long-awaited California Supreme Court decision finally resolves the disagreement among California appellate courts with respect to the amount of damages a plaintiff may present to a jury for medical expenses that were reduced by a private health insurer. In Howell v. Hamilton Meats & Provisions, Inc., the state’s highest court accepted the defendant’s argument by a vote of 6-1, deciding that a plaintiff is only entitled to recover damages for medical bills actually paid for by the health insurer. Thus, an insurer’s "write-off’s" are not subject to the collateral source rule.
The future use of Public Private Partnerships (P3) in California took a positive step forward with the recent California Court of Appeal decision in Professional Engineers in California Government v. Department of Transportation (Super Ct. No. RG10544672). The Professional Engineers in California Government (“PECG”) challenged Caltrans implementation of a P3 project in San Francisco known as the Presidio Parkway Project. PECG claimed that Caltrans violated the Streets and Highway Code section 143 by permitting third party engineers to perform the engineering services for the project in lieu of Caltrans’ employees. In addition, PECG claimed that P3 projects in California must be funded through the use of tolls or user fees as the funding element for a P3 project. The California 1st District Court of Appeal rejected both of these arguments, and in so doing, cleared the way for further use of P3 projects in California. The decision, to the extent California Supreme Court review is not sought, should facilitate the further use of P3 projects in California and may assist public entities such as Caltrans to explore the possibility of securing funding for a project utilizing the P3 model.
Published as a chapter in Inside the Minds: Complying with Employment Regulations, 2011 Edition.
On June 30, 2011, in Sullivan v. Oracle Corporation, the U.S. Court of Appeals for the Ninth Circuit ruled on the issue of whether California law applies to non-residents employees who work both in California and in other states involving a California-based employer.Published in LAAHRP (Los Angeles Advertising Human Resources Professionals) Magazine.
In Kelley v. The Conco Companies (2011) 196 Cal.App.4th 191, the First District splits with the Second District’s ruling in Singleton v. United States Gypsum Co. (2006) 140 Cal.App.4th 1547 concerning what qualifies as sexual harassment in the context of same-sex harassment suits. This split will likely require the California Supreme Court to intervene on the issue so employers can have clarity.
On June 8, 2011, in MacIntosh v. Powered, Inc., the Court of Appeal of California, First District, Division Five, reversed the trial court’s denial of Powered, Inc.’s motion to compel arbitration, forcing the plaintiff, John MacIntosh, a California-based employee of Powered, Inc., to arbitrate his claims in Texas.
When faced with submission of an inadequate certification for FMLA leave, what options does an employer have? In Lewis v. United States of America, the Ninth Circuit Court of Appeals provides guidance for employers faced with just such a situation.
On June 27, 2011, the U.S. Supreme Court issued two decisions limiting the exposure of foreign businesses to the risk of litigation in U.S. courts. In both cases, the Supreme Court held that the foreign corporations were not subject to products liability lawsuits in U.S. state courts, since those courts lacked personal jurisdiction over the foreign companies. The first case, J. McIntyre Machinery, Ltd. v. Nicastro, involved a British industrial machinery manufacturer who used an independent U.S. distributor to sell and deliver its products into the U.S., but did not itself maintain facilities or operations in the U.S. The second case, Goodyear Dunlop Tires Operations, S.A. v. Brown, involved three foreign subsidiaries of an American company (Goodyear Dunlop) who exported only a small amount of tires into the U.S. In both cases, the Supreme Court confirmed that a foreign business, with no presence in the forum state, will not be subject to personal jurisdiction simply for having sent products into the "stream of commerce" with the knowledge that its activities may be used or have an impact on the residents of a particular state.
On June 23, 2011, in a 5 to 4 decision, the U.S. Supreme Court in Pliva, Inc. v. Mensing, ---S.Ct. ----, handed a significant victory to generic drug manufacturers by ruling that federal law preempts state-law tort claims alleging inadequate warning labels on generic drugs. The decision narrows the reach of a 2009 opinion in Wyeth v. Levine, 555 U.S. 555, 129 S.Ct. 1187, 173 L.Ed.2d 51, that had permitted state tort actions for alleged inadequate warnings to survive as to brand-name drug manufacturers.
Today, in a major victory for employers, the United States Supreme Court threw out the largest class action employment discrimination case in the nation's history. The suit, against Wal-Mart Stores, had sought to consolidate the claims of as many as 1.5 million women on the theory that the company had sexually discriminated against them in pay and promotion decisions.
On March 22, 2011, the United States Supreme Court in Matrixx Initiatives, Inc. v. Siracusan decided that statistical significance is not a threshold pleading requirement in securities fraud claims based solely on the failure to disclose adverse information regarding a product.Published in the Spring 2011 issue of the ABA Business Litigation Committee Newsletter.
Does the claim that defendants stole the idea or concept you pitched only sound in copyright law or can you also proceed on an implied contract claim? In a very recent en banc decision, the 9th U.S. Circuit Court of Appeals resoundingly held that you can pursue both avenues. The opinion reversed a 2010 panel decision that has created some circuit conflict, and clears up any confusion about where the 9th Circuit stands on copyright preemption of idea-theft claims.
In Mora v. Big Lots Stores, Inc., No. B221949 (Second District, filed April 18, 2011), for the second time in two years, the Second Appellate District upheld a trial court’s denial of class certification based on specific, individual issues predominating over common questions of fact or law (Arenas v. El Torito Restaurants, Inc. (2010) 183 Cal.App.4th 723 was a prior case upholding a similar trial court ruling for similar reasons).
Question: does a bad economy affect the number of employment claims? Answer: Yes.Wage and hour lawsuits under the Fair Labor Standards Act jumped to record levels last year. Workers filed nearly 6,800 suits, some 700 cases more than the year before. Most of these were filed as collective or class actions, even though the number of non-employment class actions remained stable.
On April 13, 2011, the Fourth Appellate District in Wills v. Superior Court of Orange County, ruled in favor of the employer, defendant Superior Court of the State of California, County of Orange, in affirmed summary judgment in a disability discrimination claim by plaintiff Linda Wills. In so doing, the Appellate Court ruled that an employer may discipline an employee for engaging in threats or violence against coworkers, even when that behavior is caused by the employee’s disability.
In 2008, Congress passed, with almost unanimous support, the Genetic Information Nondiscrimination Act ("GINA"). GINA’s stated purpose is to encourage workers to get tested for genetic medical conditions, without having to worry about fallout at work. While certainly a worthy goal, the new law is a complicated one, presenting both a potential minefield for employers, as well as opportunities for plaintiffs’ lawyers and disgruntled employees.
On April 27, 2011, the Supreme Court in AT&T Mobility LLC v. Concepcion, ____ U.S. _______, held that the Federal Arbitration Act ("FAA") "prohibits states from conditioning the enforceability of certain arbitration agreements on the availability of classwide arbitration procedures." The Supreme Court’s decision overturns prior California decisions regarding classwide arbitration and, once again, makes arbitration a viable alternative for employers.
The Court of Appeal for the Second District of California, in a decision published on March 30, 2011, affirmed summary judgment in favor of an insurer (General Security Indemnity Company) against another insurer (Clarendon America Insurance Company) and held that there was no coverage under the products - completed operations hazard of a general liability policy for a general contractor terminated before the completion of his contract, where: (a) the contractor performed no work during the policy period; (b) the contractor did not complete or abandon the work contracted for; (c) where the “faulty workmanship” exclusion applied; and (d) where the “claims in progress” exclusion applied.
More than 300 federal court actions arising from the Deepwater Horizon explosion and oil spill have been consolidated for pretrial proceedings in a multidistrict litigation (MDL) pending before U.S. District Judge Carl Barbier of the Eastern District of Louisiana in New Orleans. The consolidated cases consist of four primary types of claims brought by nongovernmental plaintiffs - economic damages, personal injury and wrongful death, civil racketeering, and natural resources damages claims. This article provides an overview of the parties and some of the key claims and defenses at issue thus far in the MDL.
The OIG has issued a report on facilities’ employment of individuals with criminal convictions, which contains some troubling numbers that underscore a facility’s need to be vigilant about conducting thorough, periodic background checks for all staff members.
The United States Supreme Court in Kasten v. Saint-Gobain Performance Plastics Corp. (March 22, 2011) --- U.S. ---, has resolved the issue of whether oral complaints are protected under the Fair Labor Standards Act (“FLSA”).
This article discusses what it is like being a woman who started in litigation some 30-years ago. The changes in attitude toward women are astounding. Not that all the problems have completely gone away, for they have not. But the situation is better and it is a constant subject in the forefront of what is now openly discussed.
Recently, the California Court of Appeal has upheld the denial of class certification for employees because individual issues – not common issues – among those employees would determine the outcome of the lawsuit. In Tien v. Tenet Healthcare Corporation, the Court of Appeal has affirmed the denial of class certification based on the analysis previously put forth by Brinker Restaurant Corporation v. Superior Court and Brinkley v. Public Storage, Inc.
The United States Supreme Court has dealt employers another hurdle to overcome when making employment decisions. On March 1, 2011, the Supreme Court in Staub v. Proctor Hospital, 131 S.Ct. 1186, held that employers may be held liable for the discriminatory motives of supervisors who influence but do not make the ultimate employment decision.
Recently, the California Court of Appeal issued a decision that plaintiffs will welcome, and of which employers should be aware. In United Parcel Service, Inc. v. Superior Court, the Court of Appeal held that Labor Code § 226.7 provides for two hours of premium pay per day when an employee misses both a meal and a rest period.
For attorneys, particularly sole practitioners, advance estate planning should include a plan for the disposition of your law practice in the event of your sudden death. While advance planning cannot save your loved ones from their grief over losing you, it can remove a source of tension from your stricken family and lessen the risk of potential liability to your estate.Published in Riding the E&O Line, the newsletter of the DRI Professional Liability Committee.
The best time to plan for eternity is today. Planning for your sudden death should include a plan for the disposition of your law practice. While advance planning cannot save loved ones from their grief over their loss, it can remove a source of tension from your stricken family and lessen the risk of potential liability to your estate.Published in County Bar Update, an e-publication of the Los Angeles County Bar Association.
Today in Sonic-Calabasas A, Inc. v. Frank Moreno, the California Supreme Court declared that mandatory employment arbitration agreement provisions that waive an employee’s right to a “Berman” hearing are contrary to public policy and unconscionable. Additionally, the Court further stated that such a ruling is not preempted by the Federal Arbitration Act.
Today, in Century-National Insurance Company v. Garcia, a unanimous California Supreme Court declared two policy provisions that excluded coverage for property loss intentionally caused by “any” insured to be invalid as to other, innocent co-insureds. The homeowner’s policy exclusions, as worded, precluded coverage as to all insureds for loss caused by the intentional act or criminal conduct of “any insured.” At issue was whether the Garcias’ claim should be denied because of the intentional act [i.e. arson] of their resident, adult son [i.e. an insured by definition].
A new decision from the California Court of Appeal found that emails sent between an employee and her attorney were not confidential because the emails were sent from a company computer and the employee was informed, through an employee handbook, that emails were not private and could be monitored.
What should Human Resources Professionals know about monitoring and regulating employee conduct in this new age of social media websites?
Published in LAAHRP (Los Angeles Advertising Human Resources Professionals) Magazine.
With the arrival of the holiday season, employers are faced with the annual events associated with holiday cheer. It is extremely important for employers to remember that the holiday season also brings many unfortunate opportunities for employer liability.
With certain amendments to the Medicare Secondary Payer Statute (MSP) going into effect on October 1, 2010, settlements involving Medicare beneficiaries will be more difficult to navigate.
Published in the November 2010 issue of Communiqué, the official publication of the Clark County Bar Association.
This article focuses on the issues facing lawyers given the present business climate and recent recession. What are the effects of this recession on law firms and lawyers? What generally are the major issues facing the legal practice in this new business climate?
The Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA," also known as the "Superfund Act") was enacted in response to concerns about the release of hazardous substances, except oil and gas, from abandoned waste sites, and it requires parties responsible for the contamination to pay for or conduct cleanup and remediation at the sites. CERCLA was amended by the Superfund Amendments and Reauthorization Act of 1986 ("SARA"), and by the Brownfields Revitalization and Environmental Restoration Act of 2001.
Departing governor, Arnold Schwarzenegger, signed and vetoed several pieces of employment legislation at the close of the September 30, 2010 deadline. The new laws, which will go into effect on January 1, 2011, are not as far reaching as in years past, but employers still need to be aware of and familiar with them.
On September 29, 2010, California Governor Arnold Schwarzenegger signed into law Senate Bill 972. This new law will curtail the rulings in Crawford v. Weather Shield and UDC-Universal Development, L.P. v. CH2M Hill, in which the California Supreme Court and California Court of Appeal held that a duty to defend and indemnify arises as soon as the indemnitee tenders its defense to the indemnitor.
Published in the September 2010 issue of Law Practice TODAY, the monthly webzine of the ABA Law Practice Management Section.
Published in the September 2010 issue of Relevance, AIA California Council e-newsletter.
Published in the September 2010 issue of Relevance, AIA California Council e-newsletter.
The California Legislature has recently amended the mechanic’s lien law. These new provisions modify the procedure to maintain a valid mechanic's lien. The failure to comply with these new provisions will result in the lien being declared invalid.
Commencing on January 1, 2011, a claimant will be required to serve a “Notice of Mechanic’s Lien” on the owner of the property prior to filing a mechanic’s lien. The mechanic’s lien itself must contain a proof of service attesting that the “Notice of Mechanic’s Lien” was served by registered mail prior to the recording of the lien. Finally, the claimant must record a “Notice of Lis Pendens” within twenty (20) days of the filing of a complaint seeking to enforce the mechanic’s lien.
Published in ABA Entertainment and Sports Lawyer, Vol. 28 No. 1, Spring 2010.
Published in the ABA TIPS Admiralty and Maritime Law Committee Special Edition Newsletter, August 2010.
Published in the July/August 2010 issue of the Construction Management Association of America (CMAA) CM Advisor.
Published in the Construction Management Association of America (CMAA) Southern California Chapter's Summer 2010 Newsletter.
Recent appellate decisions indicate that it may be desirable to include an express contractual provision regarding the choice of law that governs any arbitration issues. Contracts often provide for arbitration of disputes. However, those contracts may not specify whether they are governed by the Federal Arbitration Act or state law.
MPP attorney Pamela A. Palmer is co-author of this article published in the Winter 2010 issue (45:2) of the American Bar Association's Tort Trial & Insurance Practice Law Journal.
We had previously advised you about a case in which the California Court of Appeal held that a design professional owed an obligation to pay for the defense of its developer client pursuant to a contract of indemnity, even though the plaintiff had not alleged that the design professional had erred, and even though the jury eventually found that the design professional was not negligent in performing its services.
The design professional in that case sought review from the California Supreme Court or, in the alternative, an order depublishing the Court of Appeal's opinion. The Supreme Court recently denied the design professional's petition, which means that the UDC case remains the law in California.
Published in the March/April 2010 issue of the Construction Management Association of America's CMAdvisor.
Published in the April 2010 issue of Communiqué, the official publication of the Clark County Bar Association.
In light of the current economic environment, the risk of exposure to liability in the employment practices context is greater than ever. This article discusses the development of Employment Practices Liability Insurance (EPLI) and common issues that arise in the EPLI context.
On January 15, 2010, the California Court of Appeal held that a design professional owed a duty to defend its developer/client pursuant to a contract of indemnity even though the jury found that the design professional had not been negligent in performing its services. In UDC-Universal Development, L.P. v. CH2M Hill, a residential condominium homeowners association sued UDC, the developer of the project, and UDC cross-complained against its design professional, CH2M Hill, seeking to enforce indemnity provisions in their contracts. Five days before the end of the trial on UDC's indemnity claim, the Supreme Court issued its decision in Crawford v. Weather Shield, which held that a contractual indemnitor incurs a duty to defend the indemnitee as soon as the indemnitee tenders its defense to a claim asserting that the indemnitee was at fault. At the conclusion of the trial, the jury returned a verdict finding CH2M Hill was not negligent and that it did not breach its contract with UDC. Regardless, the trial court found that, under Crawford, the indemnity provision in the contract obligated CH2M Hill to pay UDC’s defense costs.
Construction contracts between general contractors and subcontractors are often modified by change orders related to scope of work revisions during construction. If litigation ensues, the subcontractor may claim that the general contractor violated California’s various prompt-payment statutes. The California Court of Appeal recently provided some new insight in this area. In Martin Brothers Construction v. Thompson Pacific Construction, the Court of Appeal held that a general contractor who had a good faith dispute with a subcontractor could withhold 150 percent of the amount due without violating the prompt-payment statute requirements of California's Public Contract Code. The Court also ruled that parties to a construction contract could contractually "opt out" of the timing requirements for progress payments contained in California's Business and Professions Code.
After four years and extensive briefing, the United States Court of Appeals for the Second Circuit finally issued its watershed opinion concerning the judiciary’s role in considering climate change issues. The Court emphatically reversed the district court, vacated the judgment and remanded the matter for additional proceedings. Is so doing, the Court of Appeals further cracked the door for potential judicial solutions to global climate change.
LACBA County Bar Update, November 2009, Vol. 29 No. 10
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On April 30, 2008, Morris Polich & Purdy LLP presented a paper and seminar on the subject of Climate Change Litigation in the U.S.: Theories of Liability and Insurance Issues. The level of interest expressed about that subject at that time combined with ongoing developments relating to climate change litigation suggested the desirability of periodically updating that presentation. This third update complements the initial presentation along with our June and December 2008 updates.
This article presents an overview of the potential areas of legal liability involving the sales force, and a framework for training sales representatives on legal issues, both to prevent lawsuits and to aid the company in successfully defending itself and its products in pending litigation.
Background information about the case and the Economic Loss Doctrine, as well as a discussion of the decision and its effects.
On April 30, 2008, Morris Polich & Purdy LLP presented a paper and seminar on the subject of Climate Change Litigation in the U.S.: Theories of Liability and Insurance Issues. The level of interest expressed about that subject at the time combined with ongoing developments relating to climate change litigation suggested the desirability of periodically updating that presentation. This is another in that ongoing series of updates.
Article written for the College of Law Practice Management journal following the presentation given by George Brandon on Social Networking at the COLPM 2008 Annual Conference in Chicago.
Published in the September 2008 issue of Construction Executive.
On April 30, 2008, Morris Polich & Purdy LLP presented a paper and seminar at the Old Library, Lloyds Building in London on the subject of Climate Change Litigation in the U.S.: Theories of Liability and Insurance Issues. The level of interest about this subject, as reflected by the attendance at the seminar, the number of inquiries following the seminar and the response of other insurers with whom we have shared our paper, combined with the rapid pace of new developments relating to climate change litigation in the short period since that seminar was presented, suggests the desirability of periodically updating that presentation. The purpose of this brief update is to do just that.
Article for American Health Lawyers Association Publication, June 2008
Technical problems can cause difficulty when attempting to comply with ethical rules regarding retainer of client files.
LACBA County Bar Update, June/July 2008, Vol. 28 No. 6
Simpson Strong-Tie Co., Inc. v. Gore
LPL eAdvisory, May 2008
Article written for MPP's London seminar, Climate Change Litigation in the U.S.: Theories of Liability and Insurance Issues.
Iowa Supreme Court Attorney Disciplinary Board v. Winthroub
LPL eAdvisory, March 2008
Rico v. Mitsubishi Motors Corp.
LPL eAdvisory, December 2007
Beal Bank, SSB v. Arter & Hadden, LLP
LPL eAdvisory, October 2007
Appeared in the publication "Rx for the Defense" - the newsletter for the DRI.
What is metadata? Although the document on your computer screen looks like a two-dimensional piece of paper, it is really akin to a three-dimensional folder. The current version on the screen is the top document in the folder. But behind the screen is the rest of the folder, including all the draft versions, and it is stored on your computer. So, you did not just e-mail one document; you e-mailed an entire folder. You provided your opponent with a great deal of information: prior versions, edits, the identity of authors and editors, dates of alterations, the time expended on editing and the electronic notes that your client attached. See, e.g., Hricik and Jueneman, “The Transmission and Receipt of Invisible Confidential Information, 15 No. 1 Prof. Law 18 (2004).
A Discussion Paper published by the Centre for Strategic Studies, Victoria University of Wellington, New Zealand.