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Class action lawsuits arise when the court finds that individuals with claims against common defendants are joined by common questions of law or fact which predominate over individual questions, and that a class action is superior to other methods of adjudication in order to most fairly and efficiently resolve the controversy.¹ Class action lawsuits, often involving large numbers of consumers who have purchased the same products or services, allow small claims that ordinarily would not be worth the time and expense of individual lawsuits, to be combined with similar claims to proceed in adjudication against a common defendant.²

It is not surprising that plaintiffs claiming to be injured in auto accidents are often evasive about their prior medical history and treaters. In an article published by the American Medical Association, “Examinee-Reported History Is Not a Credible Basis for Clinic,” Robert Barth, Ph.D., cites numerous studies confirming that claimants tend to misrepresent their pre-claim functioning as having been “superhuman,” and distort their reported history in a fashion that potentially inflates the financial compensation for their claims.

Many of us watched with childish glee as the players emerged from the cornfield. The lead, played by Kevin Costner, smiled in amazement as the team brought to reality the hope that he harbored as he created a major league baseball field in the middle of a Midwest field. Amazement turned to prosperity as cars filled with fans rolled down the dirt road to fill the stands. Yes "Field of Dreams" taught the lesson "build it and they will come."

For those of you who have never heard of IBM's new supercomputer Watson, it is an artificial intelligence computer system designed to answer questions posed in natural language.  While many search engines such as Google and Yahoo can point you to articles that may contain the answer to your question, Watson goes one step further by processing the information it finds and providing you with an actual answer.

Reinsurer underwriting profit through the third quarter of 2011 evaporated despite a 12 percent jump in premium over the same period a year earlier, reinvigorating the debate over the 100 percent collateral rule.

Non-U.S. reinsurers generally must post collateral equivalent to 100 percent of their reinsurance transactions. The rule is designed to protect U.S. companies from reinsurers with a history of slow payment who are outside the reach of U.S. regulators.

The digital age has rendered formal memoranda explicitly requesting or reflecting legal advice nearly obsolete. Instead, employees and counsel send and receive hundreds or thousands of informal e-mails that implicitly request or reflect legal advice. The result is a corresponding increase in the volume of documents withheld based on the attorney-client privilege during litigation. Unfortunately, courts have reacted to the increase in privilege claims by increasingly raising the bar required to establish the privilege.

An emerging issue for attorneys involved in complex litigation is whether parens patriae lawsuits brought by a state attorney general can be construed as mass actions or class actions subject to federal diversity jurisdiction under the Class Action Fairness Act of 2005 ("CAFA").

The parens patriae doctrine, rooted in English common law, grants states standing to sue in order to protect the interests of their citizens.  Initially quite limited, the doctrine has been expanded over the last half-century to permit state attorneys general to bring suit anytime they can establish a "quasi-sovereign" interest, such as an interest in the physical and economic health and well-being of its residents.  SeeAlfred L. Snapp& Sons v. Puerto Rico ex rel. Barez, 458 U.S. 592, 593 (1982).  Indeed, many states have enacted laws expressly authorizing its state's attorney general to bring parens patriae suits, especially in the context of antitrust and consumer protection violations.

Recently, the national media has been flooded with stories of employees who have been disciplined or fired from their jobs for posting comments about their employers on social media websites such as Facebook or Twitter. For instance, in December of 2010, a reporter for the Arizona Daily Star was terminated after he opened a private Twitter account and posted inappropriate tweets about co-workers and local television journalists, and made cruel jokes about the homicide rate in Tucson. In February of 2011, an English teacher at a Philadelphia area school was suspended for posting a rant about her students and their parents on an online blog. And in August of 2010 a Massachusetts teacher was asked to resign over her Facebook comments calling her students “germ bags” and their parents “snobby” and “arrogant.”

More often than not, written discovery responses elicit a variety of objections rather than substantive information responsive to the discovery request. The most common objections are asserted on the grounds of irrelevance, excessive scope and vagueness. Too often, the objecting party mistakenly believes that he or she is excused from providing a substantive response simply because an objection has been asserted.

This mistake, all too common in litigation, can bring dire consequences. A mastery of the discovery rules and the applicable case law can help you outmaneuver stonewalling tactics while protecting yourself and your client from the exorbitant costs of discovery battles, and potential as court-imposed sanctions.

I frequently assist clients in drafting and negotiating non-compete clauses as part of larger agreements for the sale of business, employment, and lease of property.   One question that sometimes arises is: when do non-compete clauses in these contexts raise antitrust concerns?  The answer to this question, typically, is that they do not.

The purpose of the Sherman Act ("Act") is to guard against unreasonable restraints of trade.  Key to establishing a claim under the Act is the establishment of an "antitrust injury."  See, e.g., Cole v. Champion Enterprises, Inc., 496 F. Supp. 2d 613, 634 (M.D.N.C. 2007).  To establish an antitrust injury, a plaintiff must prove more than mere individual injury, rather an injury to competition.  See id.  This is because "antitrust laws were enacted for the protection of competition, not competitors."  Id. 

Last year U.S. District Judge Shira Scheindlin, one of the country's most influential e-discovery jurists, issued a notable opinion that many believed would reshape the landscape she helped create with her Zubulake v. UBS Warburg decisions. In Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities, LLC, 685 F. Supp. 2d 456 (S.D.N.Y. 2010), Judge Scheindlin imposed sanctions on a group of plaintiffs for their negligent or grossly negligent document preservation and collection efforts.  

Numerous courts have followed the lead of Pension Committee, but others are notably not. What implications does this have in the ever-changing world of spoliation related to electronically stored information ("ESI") and the sanctions that courts impose for such conduct?

A subcontractor’s obligation under a contract to indemnify a general contractor for the general contractor’s own negligence may appear illogical. The general contractor makes a mistake, and the subcontractor or its insurer pays for it. Nonetheless, this scenario is commonplace in construction contracts throughout the country. So common, that many states, including Minnesota, have adopted statutes regulating these types of agreements. 

This article will analyze the complexities of these indemnification agreements and their intermingled relationship with accompanying insurance provisions. The article will focus on current Minnesota law and provide an overview of the Minnesota courts’ interpretations of these provisions to help offer guidance for future transactions.

The Eighth Circuit recently affirmed a district court's decision in favor of an insurer on an insured's bad faith claim. Liberty Mutual Ins. Co. v. Pella Corp., Nos. 10-1933, 10-2065, 2011 WL 3611485 (8th Cir. Aug. 18, 2011). The court held that, under Iowa law, an insurer is not liable for bad faith as long as it has at least one reasonable basis for denying coverage. Highlighting the importance of coverage analysis and clear communications with an insured when denying a claim, the court ruled that the insurer did not act in bad faith because the insurer actually relied on the reasonable basis in denying coverage, rather than advocating after the fact that a reasonable basis existed.

This article is intended to address the world of Chinese Drywall litigation and also to provide an update on the status of various efforts to obtain a global settlement with the hopes of ultimately holding the various Chinese corporations who manufactured the drywall financially responsible.

The year was 1988 and the United States Supreme Court in Boyle v. United Technologies Corp., 487 U.S. 500 (1988), established the law that civil/private contractors who manufacture equipment for the military/government are immune from state law claims for injury or damage arising out of a defect in the equipment.  Since the 1988 decision in Boyle, this "military contractor defense" has become a widely known and applied defense utilized by private/civil equipment manufacturers to avoid liability for injury or damage caused by defects in their products provided to the military/government.  At least one court in almost every Federal Circuit has recognized the defense established in Boyle.[i]  The Boyle court set forth the three-part immunity test as follows: 

As anyone who has defended a trucking case knows, you basically start out with one -- if not two -- strikes against you.  Generally speaking, jurors have negative opinions of defendant trucking companies.  Plaintiff's attorneys know this, and can usually find something (e.g,. a DOT violation, previous tickets or accidents involving the driver in question, etc.) to attempt to inflame the jury.  These difficulties can be compounded by the venue in which the case is pending.  Generally speaking, this is determined by either the location of the accident or where the defendant resides or does business.  Depending on the venue, the facts of the case may not matter in some places as much as they do in others.  As an example of this, there was recently a case tried in the state in which I practice (Alabama) involving a minor rear-end collision, only $2,500 of retail medical bills and absolutely no "heat" in the case.  After deliberating briefly, the jury returned a verdict in favor of the plaintiff in the amount of $250,000.  On the other hand, it is important to note that some of even the more rural venues depend on trucking companies as being vitally important to the local economy, and thus are more friendly towards trucking companies than one would assume.