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Automatic Disbarment: A Sobering Reality for Convicted Attorneys
DWI felony conviction in another jurisdiction triggers instant disbarment.
 
Court Threatens Sanctions Against Attorneys for Flimsy MDL Suits
Counsel must advise clients regarding weak cases.
 
Judging Without Being Sworn In Can Jeopardize Bar License
Law clerk cannot act as judge without running afoul of ethical rules.
 
Attorney-Client Privilege Does Not Apply to Former Employees
Lawyer's interviews with former employees are fully discoverable under new bright-line ruling.
 
The Age of Detailed Patent Pleadings
Federal circuit decision applies Iqbal to patent complaints.
 
Ascertainability Not Required in 23(b)(2) Class Action, Says Court
Trend continues as Sixth Circuit reaches same conclusion as First, Third, and Tenth.
 
Trademark Trial and Appeal Board Enters Twenty-First Century
Rule amendments streamline proceedings, but some needed changes remain unaddressed.
 
Procedural Violations Cannot Result in Loss of Right to Jury Trial
Holding bench trial not appropriate sanction for failing to file pretrial disclosures.
 
Courts May Consider Foreign Law Declarations on Motions to Dismiss
Federal court relies on plain language of Rule 44.1 to resolve issue of first impression.
 
Court Cannot Decide Arbitrability of Class Claim—Arbitrator Must
Arbitration agreement informs court who decides if class arbitration is available.
 
Medicare Advantage Can Sue Lawyers for Reimbursement
Medicare Secondary Payer Act creates private cause of action against law firms.
 
Circuit Split Widens on Application of SEC Statute of Limitations
Tenth Circuit says injunction and disgorgement are not penalties subject to time bar.
 
Harassment and Discrimination Now Violate ABA Model Rules
Amended rule prohibits lawyer harassment and discrimination.
 
Class Action Waivers Survive NLRB's Repeat Challenge
Court continues trend on waiver validity and widens circuit split.
 
Ethics Board Advises Attorneys to Avoid Medical Marijuana Clients
Decision widens jurisdictional split and highlights conflict over marijuana law.
 
Bad Faith Deletion of Emails Warrants Punitive Sanctions
Decision emphasizes severity of punishment possible when senior managers destroy evidence.
 
Attorney-Client Privilege Protects Communications with Law Firm GC
Client cannot obtain communications between attorneys and law firm's general counsel.
 
Deletion of Emails Leads to Sanctions
Terminating sanctions reversed in favor of a prohibition on the presentation of evidence.
 
Circuit Split Widens on Recovering Attorney Fees as Costs
Plaintiffs may be required to pay attorneys' fees from prior action when refiling.
 
Extrinsic Evidence Ruled Inadmissible on Rule 68 Offer of Judgment
Decision joins majority permitting an award of costs where unambiguous offer is silent.
 
Court Declines to Expand Attorney Duty of Care to Non-Clients
Law firm has no duty of care absent intent to benefit a non-client plaintiff.
 
Million Dollar Sanction Overturned as Unprecedented, Punitive
Expert's violation of smoking testimony ban insufficient to sanction counsel.
 
Expert Allowed to Offer Opinion Based on Undisclosed Sources
Proffer of expert opinion based on private data raises strategic suggestions.
 
Circuit Split Widens on Nominative Use of Certification Mark
Court remands case to district court to apply elevated standard for trademark infringement.
 
"Super Lawyers" Beware
State ethics committee cracking down on comparative attorney advertising.
 
Law Firm Disqualified for Retaining and Using Privileged Email
Failure to follow California procedures for determining privilege causes disqualification.
 
Circuit Court Adopts Bright-Line Rule for Removal under CAFA
Decision follows trend and seeks to eliminate ambiguity in clock-triggering event.
 
High Court OKs Ethics Case Based on Paralegal's Improper Use of Facebook
Court finds that attorneys can be prosecuted for social media investigation tactics.
 
Federal Court Clarifies Discovery Rights under Revised Rule 26
Rule does not require parties to produce all potentially relevant information, court says.
 
Hearsay Evidence Should Be Weighed for Preliminary Injunctions
Court abused its discretion by not considering declarations, appellate court finds.
 
E-Filing Ineptitude Results in Suspension and Censure
Non-compliance with court orders to acquire technological proficiency leads to discipline.
 
Officer's Residence Decides Corporate Citizenship
Circuit court applies Supreme Court's nerve center test for principal place of business.
 
Supervisors May Be Subject to Personal Liability under FMLA
Appellate court expands scope of FMLA liability to individual supervisors.
 
Judge Restricts Lawyers from Researching Jurors Online
Disclose extent of research to venire or don't do it at all, judge says.
 
Expert Opinion Insufficient for Establishing Causation of Damages
Speculative expert testimony cannot establish that conflict of interest caused damages.
 
Evidence Lacking in False Claims Act Suit
A difference of opinion among physicians does not establish fraud.
 
Jury to Consider Classification of Distributors for Overtime Pay
Ruling on release of overtime is one of first impression.
 
Lawyer Sanctioned for Pursuing Baseless Case to Summary Judgment
Court awards sanctions of higher attorney fees than charged.
 
Employer Not Required to Accommodate Medical Marijuana Use
Employer may terminate employee for use of medical marijuana though legal in the state.
 
Ethics Board Explains Proper Conduct under Flat-Fee Arrangements
Advisory opinion addresses where to keep flat fees and related issues.
 
No Mistrial over Juror's Facebook Connection with Victim's Sister
Juror's relationship with Facebook friend too attenuated to be misconduct.
 
Addressing Altered Emails, Court Tests Limits of Amended Rule 37
No dismissal for intentional spoliation under new discovery standard for ESI preservation.
 
Actual Innocence Unnecessary for Legal Malpractice Claim
Malpractice involving illegal sentence only requires post-judgment relief.
 
Ethics Opinion Draws Line on When Social Media Is Considered Advertising
Bar association says LinkedIn pages are attorney advertising only if certain criteria met.
 
"Organic" Mislabeling Suit Moves Forward
Intentional mislabeling claim not preempted by federal statute.
 
Warrantless Search of Cell Phone Violates Fourth Amendment
Police may replicate private search of phone but can go no further without a warrant.
 
Representation in Marijuana Industry Chilled by Ethics Rules
State Bar recommends amending rules to permit representation in marijuana industry.
 
Federal Preemption Precludes Challenge to FDA-Approved Drug
Impossibility preemption precludes drug manufacturer from changing FDA-approved formulation.
 
New Practice Considerations under Amendments to Federal Rule 26
Amended federal rules now mandate that discovery be proportional to case needs.
 
Court Approves Firm's Representation of Competing Patent Clients
Economically adverse interests relating to similar inventions is not unethical.
 
Amended Federal Rules Emphasize Early Case Assessment
Rules 4, 16, 26, and 34 accelerate discovery and may promote earlier settlement.
 
Attorney-Client Privilege Trumps Advice-of-Counsel Defense
Waiver of privilege is prerequisite to employee's assertion of advice-of-counsel defense.
 
EU and United States to Quell Uncertainty after Safe Harbor Invalidation
Swift action required by affected companies to comply with EU privacy laws.
 
Mediation Communications Inadmissible in Attorney Malpractice Suit
Privileged mediation discussions cannot be used to defend malpractice claim absent waiver.
 
Copyright Ruling Expands Fair Use on Social Media
Copyright holders must consider fair use prior to takedown notice for online videos.
 
Failure to Prepare Deponent Adequately Leads to Sanctions
Limiting scope of deponent's relevant knowledge is no defense for an unprepared witness.
 
State Bar's Advertising Rules Unconstitutional
Bar cannot prohibit lawyers from truthfully advertising expertise.
 
Independent Counsel Required for Insurers to Avoid Conflicts
Insurer's reservation of rights may create conflict.
 
New Federal Framework for ESI Spoliation Claims
Amended FRCP Rule 37(e) provides a uniform standard for analyzing ESI discovery violations.
 
Doing Business with Clients Could Result in No Legal Fees
Agreement with client for interest in patent in lieu of legal fees violates ethics rule.
 
Circuit Split on Dodd-Frank's Whistleblower Protections
Second Circuit breaks with Fifth Circuit and concludes reporting to SEC not necessary.
 
Co-Employers Both Liable under the ADA
Staffing agencies and clients have independent obligations to disabled employees.
 
Attorney Fees Becoming More Common in Patent Cases
Court follows trend to apply "holistic" approach to award $4.1 million in attorney fees.
 
"Severe" Lawyer Referral Rules Needed
Florida high court rejects referrals from non-lawyer-owned agencies.
 
Data Breach Plaintiffs Alleging Future Harm Clear Standing Hurdle
Increased risk of future harm and harm mitigation expenses establish Article III standing.
 
Discovery "Ineptitude" Costs Delta Airlines Another $3 Million
Court increases special master's award recommendation and rejects partner fee discount.
 
Documents from Internal Investigation Protected by Privilege
Privilege not compromised by referencing investigation in deposition or pleadings.
 
World's Largest Law Firm Disqualified from Case after Merger
The International Trade Commission found Denton's "Swiss verein" is one firm.
 
Appellate Court Says False Ads Must Be "Literally False"
Substantial pleading burdens imposed for asserting a false advertising claim.
 
Court Rejects Department of Labor Intern Test
Court adopts new primary beneficiary test.
 
Attorney's Minimal Deportation Warning Sufficient
Court approves attorney's warning that criminal plea could result in deportation.
 
Airplane Suits Removable under Admiralty Jurisdiction
Federal court equates airplane to a ship because the plane, prior to crashing, flew over the sea.
 
Circuit Split Creates Data Protection Uncertainty
Interpreting "electronic storage" proves difficult in the face of evolving technology.
 
Ethics Opinion Provides Guidance for Local Counsel Representation
Limited local counsel representation agreements may not also curtail ethical obligations.
 
ABA House of Delegates Urges Change to Diversity Statute
First change in 57 years would affect citizenship of unincorporated entities, such as LLCs.
 
Enforceable Arbitration Requirement May Not Be Worth the Fare
Uber decision will likely force rethinking of arbitration agreements.
 
Getting a New Trial May Be Easier under One Rule Than Another
Discovery misconduct warrants new trial under Rule 60 but not Rule 59.
 
Trend of Cutting Class Action Attorney Fees Continues
Court strikes redacted hours and time spent on media communications and clerical tasks.
 
Significant Changes to Discovery and Case Management Practices
ABA Section of Litigation's Rules Amendments Roadshow explains changes.
 
Courts Disagree on Federal Preemption of "Organic" Labeling
District court concludes that state consumer protection laws advance federal scheme.
 
Fees Incurred in Defending Fee Application Not Recoverable
SCOTUS says Bankruptcy Code does not exempt costs of fee-litigation from American Rule.
 
Document Retention Policy Is No Excuse for Discovery Noncompliance
"Death penalty" discovery sanctions issued for repeated contempt of discovery orders.
 
Red Bull Class Settlement Flies Despite Dilution of Class Recovery
Court approves a class action settlement with payout cap and ascertainability issues.
 
When Following One's Convictions Means Failing to Convict
Is it a problem when jurors introduce their own theories into a case?
 
Borrowers May Collect Attorney Fees after Preliminary Injunction
Permanent injunction not required for prevailing plaintiff to collect under California law.
 
Court Confirms Vicarious Liability Pleading Requirements
Employee names not mandatory as purpose of pleadings to provide defendants notice.
 
Cell Phone Location Records Not Protected by Fourth Amendment
Defendant has no privacy right over cell phone records that do not reveal communications.
 
Appearance of Impropriety Insufficient For Disqualification
State supreme court holds actual conflict is necessary for attorney disqualification.
 
Free Speech or License to Offend?
Battle over constitutional right to trademark "disparaging" terms heats up.
 
"Generalized Interest" Sufficient to Intervene to Unseal Records
Public's interest in court records is enough to allow intervention.
 
Court Puts In-House Counsel in Deposition Hot Seat
In-house attorney ordered to disclose source of information for breach of contract claim.
 
Ethical Breaches Result in Firm Disqualification
Law firms' merger causes incurable simultaneous representation of adversaries.
 
Affirmative Defense Available in Hostile Environment Claims
Vicarious liability limited where employer has effective anti-harassment policy.
 
Copyright Does Not Bar Resale of Gray Market Goods
Attempt to prevent domestic resale of foreign-made goods deemed "copyright misuse."
 
Court Enforces Limits on Duty to Preserve Evidence
Fee award for post-judgment work reversed by the Sixth Circuit.
 
No Results? No Fees in Civil Rights Case
No sanctions for a nonparty that did not retain nine-year-old documents.
 
Agreement to Arbitrate Upheld after LLC Converted to Corporation
Corporate charter does not supersede prior LLC agreement’s arbitration requirement.
 
Law Firm's "Dishonest" Conduct Merits Sanctions
Federal court sanctions firm for prosecuting baseless and time-barred claims.
 
Attorney-Client Privilege Does Not Apply to Risk Managers
Company's discussions with risk management are unprotected by the attorney-client privilege.
 
To Enforce a Settlement, Jurisdiction Must Be Expressly Retained
Court resolves conflict over trial court's authority in dismissed, settled cases.
 
Severe Attorney Sanction Imposed For Asking Wrong Question
Court cites attorney lack of credibility justifying $1 million sanction for causing mistrial.
 
Energy Markets Exempted from Price Manipulation Claims
District court dismisses Commodity Exchange Act claim, citing CFTC order.
 
Plaintiff Must Prove Service on Motion to Vacate Default Judgment
Despite receipts, million-dollar judgment vacated after defendants deny knowledge of suit.
 
Delaware Rapid Arbitration Act Promises Speedy Arbitrations
If awards are not issued within 120 days, arbitrators face fee reductions.
 
Law Firm Mistakenly Wipes Out Security for $1.5 Billion Loan
Court finds intent to release security interest is not required under the UCC.
 
Prejudicial PowerPoint Slides Lead to Verdict Reversal
Superimposed text renders previously admitted photos inadmissible.
 
Attorney's Lien Extends to E-Discovery Database
State appellate court finds law firm had possession because it directed work.
 
Court Strikes Florida Rule Preventing Advertising of Past Results
District court decision follows trend allowing attorneys to advertise past results.
 
Mandamus Ruling Vacates New Trial Order
Failure to prove jury misconduct leads court to overturn grant of new trial.
 
Lawyers—Not Judges—May Select Their Own Juries for Trial
Standing order allows attorneys or self-represented parties to conduct voir dire.
 
Firm Can Prevent Discovery of In-House Advice in Malpractice Suit
California court finds attorney-client privilege applies to intra-firm communications.
 
Statutory Cite Not Required for Federal Civil Rights Complaint
Supreme Court says complaint without citation to 42 U.S.C. § 1983 can survive dismissal.
 
Swindled Foreign Investors Not Protected by U.S. Fraud Law
Second Circuit dismisses foreign fraud claims under CEA; U.S. transaction is required.
 
HIPAA Permits State Law Actions for Breach of Confidentiality
In a negligence action against a health-care provider, HIPAA may provide standard of care.
 
Shareholder Loses Discrimination Claim and Ordered to Pay Fees
Attorney fee award for frivolous legal arguments questioned.
 
Discovery Responsibilities: Separate but Not Equal
Defendant must produce archived email even if plaintiff cannot do the same.
 
Insurance Policy's Litigation Exclusion Bars Coverage for Sealed Litigation
Insurance coverage barred despite three year delay in serving complaint on defendants.
 
Growing Divide over Class Action Tolling under American Pipe
Class members who opt out prior to class certification decision do not forfeit tolling.
 
Email Notification Insufficient under FMLA, Says District Court
Employers face uncertainty in seeking to satisfy FMLA notice provisions.
 
"Astronomically High" Expert Fees Stricken
Proactive measures are essential to avoid costly expert fee disputes.
 
Employee's Arbitration Agreement Void Due to Lack of Consideration
Continued at-will employment and revocable promise to arbitrate insufficient consideration.
 
Court Eases Requirements to Plead Securities Fraud Claims
Fifth Circuit holds that partial company disclosures can cumulatively show causation.
 
Shifting the Collectibility Burden for Legal Malpractice
Court places burden on defendant-attorneys to show uncollectibility of underlying judgment.
 
Proportionality Limits Scope of Permissible E-Discovery
Costs of search and production exceed benefits, court finds.
 
Statutory Cap on Punitive Damages Deemed Unconstitutional
Punitive damages cap invalidated on state constitutional grounds.
 
Service via Facebook Permitted as "Best Chance" of Actual Notice
Court okays substitute service via social media profile.
 
Constructive Discharge Claim Accrues When Employer Retaliates
Employer retaliation—not employee resignation—triggers constructive discharge claim.
 
Court Compels Production of Privileged Documents to Shareholders
Allegations of wrongdoing abrogate attorney-client privilege and work product protection.
 
Arbiter Does Not Decide Class Arbitration Status
Third Circuit is latest to rule class arbitration is for the court to decide.
 
Attorney Sanctioned for Misconduct During Trial
Counsel's misrepresentation to court causes case dismissal and possible attorney fees.
 
Self-Service Kiosks Can Require Consumers' Zip Codes
Ninth Circuit finds collection does not violate California consumer privacy law.
 
Lawyer Travel for Work Enough for Personal Jurisdiction
Participation in out-of-state settlement for client satisfies long-arm statute.
 
Iqbal/Twombly Plausibility Pleading Spreads
State Supreme Court adopts higher pleading standard in fiduciary duty case.
 
Increase in Attorney Fee Awards on the Horizon
Losing parties may pay attorney fees in patent infringement cases more often.
 
Factual Misrepresentations Result in Claim Dismissal
Dismissal is proper sanction when closely fitted to objectionable conduct.
 
No Failure-to-Warn When Drug Label Is FDA Compliant
Failure-to-warn claim against drug company unsuccessful for post-label change injury.
 
Associate Suspended for Double-Crossing His Firm
Discipline for unethically threatening to provide and destroy evidence against firm.
 
Supreme Court Reaffirms Fraud-on-the-Market Theory of Reliance
Defendants may challenge market efficiency to defeat class certification.
 
Website's Hyperlinked Forum Selection Clause Valid
Evidence of notice and acceptance of terms of use are crucial to enforcement.
 
Lodestar Multiplier Rejected in "Routine" Divorce Case
Lack of a written agreement led to multi-million dollar fee dispute.
 
Website Not Liable for Anonymous Postings
Decision sets high bar for operator liability.
 
Opinion Says No to Non-Lawyer Firm CEOs
Debate intensifies over ethics of non-lawyer professionals in law firms.
 
Seventh Circuit Rejects "Scandalous" Settlement
Judge Posner rebukes counsel for "selling out the class."
 
Third Time Is Not a Charm for Party Seeking Removal
Eighth Circuit lacked jurisdiction to review untimely removal attempt.
 
False Evidence Forces Law Firm Exit after $24 Million Verdict
Client's false testimony raises questions about appropriate remedial measures.
 
Rare Supreme Court Reversal for Error Correction
Court criticizes lower courts' resolving fact questions to grant summary judgment.
 
Online Privacy at Risk under Federal Statute
Disclosure of name and web history does not violate the Electronic Communications Privacy Act.
 
Internet Technology Infringes Exclusive Intellectual Property Right
Supreme Court implies Internet provider is a cable company under the Copyright Act.
 
Advice of Counsel Defense Leads to Waiver of Privilege
Tread carefully when agreeing to selective privilege waiver.
 
New York Bar Issues Social Media Guidelines
Rules seek to balance business and ethical concerns.
 
Misleading Discovery Response Results in New Trial
Extraordinary retrial motion granted two years after jury verdict.
 
Webpage Held Not Self-Authenticating
Court refuses to consider statements in party's unauthenticated webpage.
 
Adverse Rulings Insufficient to Show Judicial Bias
Standard for recusal remains a high hurdle to overcome.
 
Widening Permissible Warrantless Home Searches
U.S. Supreme Court gives police more leeway.
 
Anti-SLAPP Statute Does Not Protect Law Firm Advertisements
Marketing falls within commercial speech exception to state anti-SLAPP law.
 
Arbitration Survives Contract's Expiration
Ruling reflects continued federal policy favoring arbitration.
 
Securities Law Does Not Shield Ponzi Schemer's Associates
Class actions can proceed even though only the fraudster bought a "covered security."
 
Caps on Non-Economic Damages Held Unconstitutional
State supreme court finds caps violate equal protection.
 
Unfinished Business Tips for Attorneys Exiting Firms
Firm can recover unfinished business profits from partners who left firm prior to dissolution.
 
Eavesdropping on Jury Panel Leads to New Trial
Counsel's secretive actions raise ethical concerns.
 
FTC Gets Green Light to Sue Merchants over Data Breaches
Motion to dismiss denied in benchmark FTC v. Wyndham Worldwide Corp. case.
 
A Deal is a Deal!
Courts reject BP's claimed interpretation of settlement agreement.
 
Abuse Hotline Does Not Create a Duty to Victim
Ruling leaves door open to suits alleging negligent aid.
 
Party Held Liable for Unauthorized Email Access
Courts struggle to apply Stored Communications Act to modern email systems.
 
Discovery Abuse Warrants Informing Jury of Misconduct
Courts explore alternatives to monetary sanctions.
 
Securities Fraud Plaintiff Need Not Show Reliance
Recovery available despite agreeing to merger prior to issuance of misleading reports.
 
Court Abused Discretion by Not Considering Sanctions Request
Even absent a formal motion, courts must address claims of vexatious conduct.
 
Court Weighs Procedural Safeguards for Audio Playbacks to Jury
Circuits split on whether audio tapes may be replayed to jury in defendants' absence.
 
Limits on the Attorney-Client Privilege for Lobbyist Communications
Ruling highlights uncertainties for protection of attorney-lobbyist advice.
 
Sins of a Subsidiary Corporation Visited Upon Parent
Corporate parent's executives may not interfere with subsidiary's contract.
 
Beware of Conflicts in Joint Representation
In-house attorney's assurance to "protect" employee at deposition leads to malpractice claim.
 
Attorney-Client Privilege Passes to Acquiring Company in Merger
Parties can contract around default rule or segregate communications to avoid waiver.
 
District Court Remand Orders Are Difficult to Appeal
Circuit court reaffirms high standard for appealing a district court's remand decision.
 
Failure to Authenticate Email Leads to Dismissal of Case
Decision highlights direct and circumstantial options for email authentication.
 
Admission of GPS Evidence Signals Brave New World
Eighth Circuit affirms ruling taking judicial notice of GPS technology.
 
Supreme Court Narrowly Defines Younger Abstention Doctrine
Abstention by federal courts appropriate only in exceptional circumstances.
 
Motion to Reconsider Remand Order Is Not Appealable
Ruling protects state jurisdiction over remanded cases.
 
Employees Can Be Liable for Data Theft Regardless of Use
Wrongful download is enough to state claim for misappropriating trade secrets.
 
No Bad Faith When Insurer Fails to Initiate Settlement
Absent a settlement offer within policy limits, insurers have no duty to settle.
 
Former Counsel Violated Ethics Rules by Informing on Client
Duty of confidentiality trumps whistleblower rights.
 
Tougher Scrutiny of Employer Payroll Cards
Employers warned of stricter enforcement of laws governing payroll cards.
 
No Mercy for Pro Se Litigant
Court affirms $1 million default judgment for discovery abuses in defamation case.
 
Timely Payment of Filing Fee Required to Commence Action
Complaint filed with insufficient filing fee does not toll statute of limitations.
 
Law Firms Must Monitor Emails Sent to Departed Lawyers
Duty to protect clients' interests necessitates firms' review of emails.
 
Civil Rights Attorneys May Be Awarded More than Their Clients
Case highlights the importance of preparing a clear and well-supported fee petition.
 
Lawyer's Duty of Loyalty to Client Trumps Loyalty to Spouse
Attorneys must not assist others, including spouses, if actions are adverse to a client.
 
Class Settlement Rejected Due to "Worthless Injunctive Relief"
Appeals court says Pampers' class action settlement stinks.
 
Text Message Sender May Face Liability for Driver's Accident
Texter who knows recipient is driving and driver's texting habits has duty not to distract.
 
Circuits Split on Indispensable Parties
Flexible nature of Rule 19 analysis allows abuse of discretion or de novo review.
 
Third-Party Documents Admissible as Business Records
Ruling reflects trend in favor of allowing third-party evidence.
 
Facebook Communication Leads Court to Vacate Murder Conviction
Court should have allowed inquiry into juror-witness Facebook contact.
 
Spoliation of Electronic Data Results in Severe Sanctions
Deletion of laptop files leads to monetary sanctions and inference of bad faith.
 
Class Certification's Predominance Standard Alive and Well
Sixth Circuit clarifies scope of recent U.S. Supreme Court ruling on class certification.
 
Under Dodd-Frank Act, a Whistleblower Is a Whistleblower
Whistleblower requirements are the same under anti-retaliation and bounty provisions.
 
Recovering Trial Technology Costs
Trial presentation technology can help make a case, but the expense is a drawback.
 
Merchants May Have Recourse on Data Breach Liability Assessments
Payment networks may face hurdles in charging banks when merchants are hacked.
 
Employer Violates Labor Laws by Failing to Pay Interns
NY District Court ignores other circuits; holds unpaid interns are employees under FLSA.
 
Unsigned Conflict Waiver Letter Found Enforceable
Client waived advance conflicts despite never signing letter.
 
Demonstratives Allowed in Jury Room during Deliberations
Are demonstrative exhibits helpful to the jury or misleading and unfair?
 
Maryland Declines to Do Away with Contributory Negligence
High court leaves negligence standard for the legislature to decide.
 
Two U.S. Supreme Court Opinions Enforce Arbitration Agreements
Court finds terms of parties' arbitration agreements and class action waivers binding.
 
Lawyers' Duty to Disclose False Evidence May Extend Indefinitely
Even after the conclusion of a proceeding, lawyers must take action.
 
Tort Reform Dealt a Blow in Oklahoma
Other states watch closely as tort reform struck on constitutional grounds.
 
Contingent Fee Permissible When State Hires Private Counsel
No conflict of interest to pursue consumer protection claims for the state.
 
Motions in Limine Held Not Dispositive
Motions for summary judgment–not motions in limine–terminate claims.
 
Need a Lawyer? Check Your Text Messages
Ohio high court finds text messaging an acceptable form of attorney advertising.
 
Facebook Messages Admissible under Traditional Evidence Rules
State appellate court finds that messages are authentic and not hearsay.
 
Discovery Processing Costs Not Recoverable
Non-taxability of discovery expenses costs winning litigant more than $100,000.
 
Litigation Privilege Immunizes Lawyers from Fraud Actions
Doctrine promotes zealous client advocacy.
 
"Private" Postings Nevertheless Discoverable
Judge orders forensic expert to review Facebook posts.
 
Ethical Breach by Class Counsel Does Not Defeat Certification
Court focuses on prejudice to class members or compromising integrity of the lawsuit.
 
Court Finds CAFA Ambiguous, but Clear, on Attorney Fees
Divided Ninth Circuit limits attorney fees to a percentage of value of redeemed coupons.
 
Investigating a Juror's Claim of Racial Bias
In rare cases, a trial court may investigate whether racial bias affected a verdict.
 
Supreme Court Closes Class Action Loophole
Stipulation limiting damages inadequate to defeat federal class action jurisdiction.
 
Attorneys Suspended Nine Months for Influencing Client's Story
Attorneys in hot water after suggesting client create better facts.
 
Patent Complaint Does Not Have to Identify Infringing Activity
Sample form satisfies the pleading standards of notice and plausibility.
 
Florida's Economic Loss Rule Limited to Products Liability Cases
Expansion of the rule beyond its products liability origins proves unworkable in practice.
 
Unfulfilled Discovery Promises Lead to Rule 16(f) Sanctions
District court imposes sanctions for delaying case without a finding of bad faith.
 
Ninth Circuit Allows Intervention to Preserve Deposition
Lawyers must take steps to fully enforce protective orders after a case settles.
 
Class Certification Denied in Data Breach Case
Lack of expert testimony prevents plaintiffs from satisfying predominance requirement.
 
Fraud-on-the-Market Theory Questioned
Securities fraud plaintiffs win, but is the victory pyrrhic?
 
Law Firm's Advance Conflict Waiver Upheld
Sophisticated company gave informed consent for lawyer to represent future adverse client.
 
Oil and Gas Regulation Sole Domain of State
Ohio court rules municipality's home rule preempted by state regulatory scheme.
 
Attorney Blogger Runs Afoul of Ethics Rules on Advertising
Virginia high court finds blog is not protected political speech.
 
Zip Codes Are Private
Ruling fuels class actions against retailers following similar California suits.
 
Courts Remain Reluctant to Expand Interlocutory Appeals
Private parties cannot seek interlocutory appeal for issues reserved for state actors.
 
Lawyers May Face Liability for Ex-Parte Defamatory Remarks
Potential defamatory statements may be subject only to a qualified privilege.
 
Counterclaim May Be Avoided by Covenant Not to Sue
Plaintiff may exit trademark lawsuit by filing broadly worded covenant.
 
Asking for Friendly Advice Can Create a Conflict
Plaintiff's choice of counsel stymied by defense counsel's casual consultation.
 
Co-Client Relationship Between Insurer and Insured Not Automatic
Insured's assertion of attorney-client privilege upheld against insurer.
 
"Golden Rule" Arguments Not Okay on Liability Issues
D.C. Circuit Orders Retrial over "Golden Rule" Statements, Furthering Split among Circuits.
 
Contribution and Indemnification for ERISA Fiduciaries
Federal courts divided on implied right, and the Supreme Court remains silent.
 
Attorney's ECF Error Forfeits Client's Right to Appeal
Second Circuit limits district court's discretion to grant relief from untimely appeal.
 
Establishing That Text Messages Are Admissible
Distinctive characteristics” authenticate text messages.
 
"Reckless Disregard" May Suffice for Spoliation Sanction
Court imposes adverse inference instruction despite lack of actual malice.
 
Rambus's Prejudicial, Bad Faith Spoliation Warrants Harsh Sanction
District court "fully explains" spoliation sanction that rendered patents unenforceable.
 
Circuits Split on Computer-Based Personal Jurisdiction
Nature of claims and language in long-arm statutes may explain different outcomes.
 
Lawyers Are Ethically Bound to Civility and Professionalism
Duty to advocate zealously is not license for uncivil conduct, says Indiana high court.
 
Attorney's Failure to Join Essential Party May Be Malpractice
Unsettled issue of law is not a silver bullet against attorney's inaction.
 
Informal Agreement Does Not Mean Done Deal
Requirements of Copyright Act not satisfied by informal email agreement between attorneys.
 
Truthful Off-Label Marketing is Protected Speech
Second Circuit deals blow to FDA attempts to restrict off-label marketing.
 
Ethical Limits on Rebutting Client's Disparaging Internet Comments
Ethics Commission balances protection of former client against attorney defending his reputation.
 
Securities Class Action Resolutions Slow Down
Report points to a pending Supreme Court decision and fewer available cases.
 
Experts Cannot Be Shielded from Discovery by Re-designation
Expert disclosures, not designations, dictate discovery and use of experts.
 
Zealous Advocacy Balanced Against Collaborative Discovery
Court provides case study on how to work out differences through electronic discovery.
 
Former Cocounsel Must Share the Fruits of Their Labor
Contingency fee firm's quantum meruit claim may proceed against former cocounsel.
 
Simple Negligence Sufficient for Ethics Violation
Ethical duty trumps policy that prohibits admission of liability.
 
Malpractice Insurer Must Defend Lawyer Who Admits Mistake
Attorney’s failure to inform secondary court of withdrawal violates ethics requirement.
 
Can Judges "Friend" Attorneys on Social Media?
The Tennessee Judicial Ethics Committee says judges must proceed with caution on social media.
 
Surprise Order Forces Parties to Identify Bloggers on Payroll
Court orders disclosure of paid commentators making statements on issues in case.
 
Court Orders Cloning of a Nonparty Attorney's Computer
ESI of a nonparty attorney is discoverable if it does not unreasonably burden the attorney.
 
Overtime Recoverable in FMLA Claim
Establishing a right to recovery is simple, but calculating the award is more difficult.
 
Litigation Privilege Is No Defense to Malpractice Claim
Reporting an insured's illegal conduct, which voided coverage, negated the litigation privilege.
 
Contract Attorney's Conflict Not Grounds for Disqualification
Conflict not imputed to firm that outsourced work to contact attorney.
 
Court Imports E-Discovery Best Practices to the FOIA Realm
Federal agencies are required to cooperate on search protocols.
 
Georgia Judges Must Cure Harm of Improper Arguments
Objecting party need not request remediation; courts' curative responsibility is mandatory.
 
Boundaries of Computer Fraud Insurance Coverage
Commercial coverage policy extends to cyber claim.
 
Circuits Split on Valuing Offset Against Criminal Restitution
Timing of valuation makes a huge difference under federal act.
 
Discovery of Facebook Posts No Longer A Given
A district court bucks the trend of allowing broad discovery of social media.
 
When an Expert Becomes a Judge-Elect, Testimony May Proceed
Florida allows judge-elect to finish testimony before taking the bench.
 
Attorney Gambles Chasing Fees and Loses Big
In fee disputes, recognize, evaluate, and know the risks before gambling on litigation.
 
Judicial Deliberative Privilege Trumps Subpoena Power
Massachusetts' high court announces rule protecting judges' deliberations in cases.
 
Privilege Depends on Conflicts and Nature of In-House Position
Law firms cannot assume communications with their own in-house counsel are privileged.
 
State Bar's Threat of Sanctions Violates Right to Free Speech
Rule of professional conduct is unconstitutional as applied to attorney's comments.
 
Class Counsel Denied $8.5 Million in Fees
"Egregious" conflict of interest leads to forfeiture of attorney fees in class action.
 
Cautionary Tale: Attorneys Must Guard Confidential Information
Attorneys can be subject to sanctions even for inadvertent violation of protective orders.
 
Death of a Salesman Exemption
Supreme Court finds salesmen are exempt under FLSA even when they don't "sell."
 
California Affirms Work Product Protection for Witness Statements
The Ninth Circuit decision extends California law but leaves extent of duty largely undefined.
 
Insurer Has Duty to Settle Even in Absence of Settlement Demand
The Ninth Circuit decision extends California law but leaves extent of duty largely undefined.
 
Pennsylvania Charts Its Own Path on Electronic Discovery
The state and federal rules are similar, but federal jurisprudence is rejected.
 
Treating Physicians Can Serve as Defense Experts
New Jersey court broadens pool of available qualified medical experts.
 
Colorado's Different Ethics Approach to Litigation Expenses
Permissible versus impermissible financial advances depends on its purpose.
 
New Trend in Navigating the Minefield of Civil Rule 13(a)
Test for compulsory counterclaims opens the door to balancing of the equities.
 
Limiting Availability of Interlocutory Appeals Regarding Privilege
Privilege holder must obtain documents and endure contempt charge to pursue appeal.
 
Angry Birds Will Not Violate Bar Rules; Abusive Tactics Will
Abusive tactics and juvenile antics get attorney and firm disqualified.
 
Attorney's Settlement "Mistake" Raises Ethical Questions
Plaintiff's lawyer disavows last-minute settlement after learning jury would have awarded $9 million.
 
Ethics Commission Recommends Updates to Model Rules
Proposals target technology, lawyer mobility, and outsourcing.
 
Predictive Coding Portends Change in Discovery Practice
The courts' acceptance of computer-aided search could reduce review costs.
 
Courts Address Preservation of Personal Electronic Device Data
Preservation orders differ over scope of relief granted.
 
Bright-Line Rule Adopted for Citizenship of Defunct Corporation
Dissolved corporation has no principal place of business under diversity jurisdiction test.
 
Flat-Fee Arrangements May Carry Sharp Consequences
Attorneys should exercise care in preparing flat-fee agreements.
 
SC Bar Ethics Committee Advises Against JustAnswer.com
Lawyers must be cautious of ethical pitfalls in question-and-answer websites.
 
Think Settlement Negotiations Are Confidential? Think Again.
Federal Circuit allows discovery of settlement negotiations in patent dispute.
 
Prometheus's Patent Ruled a Myth
Supreme Court finds diagnostic test an unpatentable law of nature.
 
Forensic Expert Permitted to Identify Keyboard User
Limited access to multiple computers with similar file structures is an acceptable ultimate issue opinion.
 
Supreme Court Limits FMLA Claims Against States
Sovereign immunity bars relief under the self-care provision.
 
Federal Procedural Rules Trump Hague Convention
French-blocking statute did not excuse foreign corporation from U.S. discovery obligations.
 
Fiduciary Duty Exception to Privilege Inapplicable in Illinois
Legal advice to law firm protected from disclosure to firm's client.
 
Prison Is Not a Custodial Environment for Miranda Purposes
Supreme Court upholds interrogation about other crimes in "normal" prison environment.
 
Managers of Delaware LLCs Owe Fiduciary Duty Except by Agreement
Chancery court rules that duty owed unless modified by parties, but Supreme Court may rule otherwise.
 
Court Misses Chance to Tackle Unpatentable Abstract Ideas
Federal Circuit holds claims not patent-eligible, but definition of "abstract ideas" remains murky.
 
Congress Guts Bill of Rights
Repeal contained in footnote to Omnibus Health-Care Bill.
 
Feds Give Corporations Vote; Chancery Court Abolished
After Citizens United, state and federal lawmakers take action.
 
Bonds and Environmental Blunders in Engagement Letters
Louisiana case against bond counsel underscores value of proper limits on scope of representation.
 
Interpreter Must Take Oath to Make True Translation
Failure to swear translator not necessarily a reversible error.
 
First Circuit Limits Sarbanes-Oxley's Whistleblower Protection
Court holds 2–1 that statute only protects employees of public companies over sharp dissent.
 
Intervenors Still in Limbo on Standing Requirements
Courts consider whether intervenors must establish Article III standing under FRCP 24.
 
Expansive Reading of Rule 30(e) Adopted in Massachusetts
Majority view allowing all changes to depo erratas is adopted by state high court.
 
Pre-Eligibility Protection under FMLA
Employee's advance notice of potential maternity leave triggered FMLA rights.
 
Nevada Offers Pharmacists Bitter Pill
Court adopts “learned intermediary” defense, but refuses to apply it.
 
California High Court Limits Product Liability in Unusual Asbestos Case
Strict liability is not necessarily extended to manufacturer for incorporated component products.
 
Judge Rejects SEC's Position on Citigroup Consent Judgment
The $95 million penalty is "pocket change," the judge says.
 
Attempted Release of Sanctions Liability by Law Firm Spells Trouble
Lawyers should not comingle a release of claims with the settlement of a client's underlying lawsuit.
 
Circuits Split on Materiality in Securities Class Actions
Courts debate proof versus plausibility at pleadings stage.
 
Second Circuit Lifts Sanction on Ghostwriting Petition
Should a court sanction an attorney for helping pro se litigants draft and file petitions for review?
 
Party Relieved from Estimated 95-Million-Page Review
Court overrides parties' agreement requiring broad retrieval of data in unallocated space.
 
Accounting for Damages for Dummies: Expert Opinion or Not?
Accountants' testimony on preparation of proofs of loss is lay opinion.
 
Seventh Circuit Affirms Federal Preemption in Food-Labeling Case
The Food and Drug Act trumps nonconforming state laws.
 
Counsel Enjoined From Contacting Non-Party Witnesses
Court concludes discouraging witnesses from speaking with opposing counsel is improper.
 
Pro Se Bankruptcy Filings Growing Faster than Other Debtor Relief
Two-to-one growth rate may be due to federal reforms increasing potential liability.
 
Think Before You Seal
New U.S. Judicial Conference policy urges annual review of sealed case files.
 
Colorado Denies Privilege for Guardian Ad Litem
Should attorney-client privilege apply to lawyers' conversations in a guardian ad litem role?
 
Ninth Circuit: Foreign Civil War Subject to Federal Jurisdiction
Split widens as Supreme Court to decide jurisdictional scope under Alien Tort Statute.
 
Chancery Court Awards $1.263 Billion in Derivative Action
Special committee approval not enough to shield merger decision.
 
New Jersey Revamps Test for Eyewitness Identifications
State supreme court lowers threshold for pretrial hearings, orders new jury instructions.
 
Circuit Split Emerges over National Banks’ Citizenship
Banks’ principal place of business not determinative for diversity jurisdiction.
 
ABA Proposes Rule Changes to Aid Multijurisdictional Practice
Comment period for revised Model Rules of Professional Responsibility closes November 30.
 
Kansas High Court Affirms Right of Nonparty to Destroy Records
Failure to show special relationship with entity shredding documents fatal to spoliation claim.
 
Federal Circuit Cracks Down on Non-Practicing Entities
"Patent troll" and attorney must pay $631,135 in fees, costs, and sanctions for extortionate claim.
 
Trial Skills
Ethics: Handle with Care
Making a Difference
Practice Areas
Striking Back—Federal Rule 37(c) and Untimely Expert Reports
New Life for Underground Storage Tank Regulation