CYBER RISK CLIENT UPDATE: “50-State” Complaint Filed Against Equifax

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Last Friday, a “50-State” complaint was filed against credit reporting giant Equifax concerning an extensive data breach that occurred earlier this year, and which exposed the personal identification and financial information of more than 145 million Americans.  This summer, hackers took advantage of a flaw in a software tool utilized by Equifax, and obtained enormous amounts of sensitive customer data.  The company has since admitted that it knew about this flaw at least two months before the breach occurred, and at least three months before it alerted consumers of the breach.  The lawsuit contends that Equifax failed to improve data safeguards while expanding into new business areas.  The lawsuit also alleges that Equifax mishandled its response to the breach, and alleges violation of breach notification laws in states throughout the country.  Plaintiffs’ class-action lawsuit seeks recovery of millions of dollars in compensatory damages, as well as punitive damages, disgorgement of profits and attorneys’ fees. More »

PROFESSIONAL LIABILITY CLIENT UPDATE: Collateral/Crossover Estoppel as a Bar to Legal Malpractice Claims

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Depending on the facts and issues involved in a legal malpractice claim, there are various defenses to be proffered. One potential defense is the doctrine of collateral/crossover estoppel, a “rule of issue preclusion”[1] that “precludes relitigation of an issue in a subsequent, different cause of action between the same parties when the prior proceeding culminated in a valid final judgment and the issue was actually and necessarily determined in the prior proceeding.”  Barrow v. Pritchard, 235 Mich. App. 478, 480 (1999).  Crossover estoppel is the application of collateral estoppel in a civil matter after a final determination was made in a prior criminal matter.  In Saad Akram Bahoda v. Steven M. Kaplan (Case No. 332313, July 20, 2017), the Michigan Court of Appeals affirmed the Macomb County Circuit Court’s grant of summary disposition for a defendant-lawyer applying the doctrine of collateral/crossover estoppel to hold that his former client’s legal malpractice claim was precluded as a matter of law. More »

CLIENT UPDATE: Supreme Court's Personal Jurisdiction Ruling Sounds Potential Death Knell to Plaintiff Litigation Forum Shopping

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In a momentous 8-1 ruling handed down yesterday, the United States Supreme Court plainly limited the reach of state courts to assert personal jurisdiction over corporate defendants in Bristol-Myers Squibb Co. v. Superior Court of CA, San Francisco County, et al. More »

TEXAS INSURANCE LAW UPDATE: Storm Claim Litigation Reform Statute: Texas House Bill 1774

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House Bill 1774 (H.B. No. 1774) was signed by Texas Governor Greg Abbott on May 26, 2017, enacting Chapter 542A of the Texas Insurance Code and modifying other existing statutes. H.B. No. 1774 was designed to address lawsuit abuse arising out of Texas weather-related property claims. A summary of the bill follows. More »

The Uniform Commercial Code May Not Be So Uniform After All: Looking to the U.C.C. as a Defense to Class Certification

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The Uniform Commercial Code (U.C.C.). You know the one. That sectioned charter originally enacted with the goal of unifying the laws governing sales and commercial transactions across all 50 states, the District of Columbia and the U.S. territories? The one that provides recommendations to the states as to the laws that each particular state should adopt? It turns out that –even for all of the states that have adopted the UCC--the “uniform” part of the Code’s title might just be a misnomer . . . and one that might actually provide a defense to businesses defending against class certification. More »

REAL ESTATE CLIENT UPDATE: Michigan Court of Appeals' Recent Decision Reviews What Constitutes a Fixture Under Michigan Law

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Image result for "real estate"As you may be aware, Michigan has very few cases involving an issue that frequently arises at the end of many tenancies – whether items such as heating system(s), window shades, awnings, storm doors, stoves, etc. constitute fixtures (that remain the Landlord’s property at the end of the tenancy) or personal property (that the Tenant may freely remove at the end of the tenancy).   On May 9, 2017, the Michigan Court of Appeals in Grand Traverse County Land Bank Authority v. Verizon Wireless and Great Northern Broadcasting System, Inc. held that that a broadcasting tower on a 14 acre parcel was a fixture that could not be removed .  A summary of this recent decision (and the Michigan Court of Appeals reasoning on what constitutes a fixture under Michigan law) is below.   More »

Fowler v. Union Carbide Corporation, et al.: Defendant's Summary Judgement Reversed on Appeal in New Jersey Asbestos Case

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Late last week, the Appellate Division of the Superior Court of New Jersey handed down a reversal of summary judgment in an action sure to get the attention of asbestos defendants in the region who rely on similar offerings in moving for summary judgment. In an unpublished opinion, the Court in Fowler v. Union Carbide Corporation, et al.(Superior Court of New Jersey, Appellate Division, Docket No. A-2300-15T4), relied on, and hence gave credence to, limitations earlier courts have placed on the ‘substantial factor’ test used to determine if defendant’s product caused plaintiff’s disease. More »

Raising the Bar: Missouri’s New Daubert Law

With the stroke of the pen, Missouri’s newly-minted Republican Governor Eric Greitens has fulfilled a key campaign promise to bring tort reform to the state. On March 28, 2017, Governor Greitens signed legislation aligning Missouri with a large majority of jurisdictions that follow the Daubert standard governing expert testimony and opinion. In adopting the Daubert standard, Missouri leaves the handful of states following neither the Frye nor Daubert standards. The new law allows Missouri litigants to develop expert strategies based on a broad framework of federal precedent and practical jurisprudence from more than thirty states.  More »

Norfolk: Missouri Supreme Court Limits Personal Jurisdiction

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On February 28, 2017, the Missouri Supreme Court issued its ruling in State ex rel. Norfolk So. Ry. Co. v. Hon. Colleen Dolan, a watershed moment in Missouri litigation. The ruling entrenches the legal precedent of Daimler AG v. Bauman, 134 S. Ct. 746 (2014) in Missouri courtrooms, thereby limiting personal jurisdiction over foreign corporations. In the underlying case, the plaintiff, Russell Parker of Indiana, filed a Federal Employer’s Liability Act (FELA) claim against Norfolk, a Virginia corporation with its principle place of business in Virginia, for a cumulative trauma injury sustained while working for Norfolk in Indiana. More »

CLIENT ALERT: Labor & Employment Law - Where Do We Stand? U.S. Department of Labor's Revised Overtime Rules Under the Fair Labor Standards Act

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A. Overview of Fair Labor Standards Act
The Fair Labor Standards Act of 1938 (FLSA) is a federal law that regulates minimum wage and overtime compensation. Specifically, the FLSA provides a $7.25 per hour minimum wage for all covered employees, and mandates that they be paid time-and-a-half for work in excess of 40 hours per week. More »

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