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 That sectioned charter originally enacted with the goal of unifying the laws governing sales and commercial transactions across all 50 states, the District of Columbia and the U.S. territories?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 »

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 »

CLIENT ALERT: New York’s New Cybersecurity Regulations - Nuts & Bolts

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The risk of a cyber-attack is ubiquitous, and a cyber-event can result in legal and financial liabilities that can cripple an affected organization. Recognizing the ever growing threat of cyber-crime, the New York State Department of Financial Services (DFS) recently unveiled the Proposed Cybersecurity Requirements for Financial Services Companies, a proposed set of cybersecurity regulations for banks, insurers and financial institutions aimed to protect both institutions and individuals from cybersecurity events. Compliance with the regulations is mandatory. The regulations, which take effect January 1, 2017, seek to protect customer information as well as institutions’ information technology systems by requiring covered entities to assess their cyber risk, to implement programs and policies to address that risk, and to continually monitor these systems. This alert will cover the ins and outs of the new regulations including what you can do today. More »

Illinois Supreme Court Applies Discovery Rule Extending Statute of Limitations Period in Wrongful Death and Survival Actions

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On September 22, 2016, the Illinois Supreme Court issued its opinion in Randall W. Moon v. Clarissa F. Rhode et al. (2016 IL 119572), holding that the discovery rule found in section 13-212(a) of the Code of Civil Procedure (735 ILCS 5/13-212(a)) was applicable to Wrongful Death and Survival act claims alleging medical malpractice.  Generally, statutes of limitation set deadlines for which plaintiffs must bring claims, however, in certain situations the deadline may be extended by what is referred to as the “discovery rule.”  Although the Court’s opinion was in the context of a medical malpractice case, the discovery rule that the Court held to apply in section 13-212(a) of the Code for medical malpractice claims also appears in section 13-213(d) of the Code for product liability claims.  This decision may provide support for plaintiffs and courts in Illinois to extend the application of the discovery rule to Wrongful Death and Survival act claims in product liability matters. More »

Federal Court Bars DOJ from Prosecuting Participants in State Medical Marijuana Programs

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On Tuesday, August 16, 2016, a federal appeals court in California barred the Justice Department from prosecuting medical marijuana cases where no state laws were violated. Specifically, in the matter styled United States v. McIntosh, a three judge panel of the 9th U.S. Circuit Court of Appeals sitting in San Francisco ordered the Justice Department (“DOJ”) to show that individuals under indictment for violating the Controlled Substances Act violated medical marijuana laws of their respective states before continuing with prosecutions. The opinion addressed ten consolidated matters arising from three district courts in California and Washington State. More »

GENERAL FRAUD EXCLUSIONS: AN IMPOSING DEFENSE IN MICHIGAN PIP ACTIONS

Personal Injury Protection (PIP) benefits cases are on the rise in Michigan. However, with the 2014 Michigan Court of Appeals decision in Bahri v. IDS Property Cas. Ins. Co., 308 Mich. App 402; 864 NW2d 609 (2014), defendants are finding these cases defensible. [1]

The effect of the Court’s ruling in Bahri and defense reliance on general fraud exclusions found in insurance policies continue to reveal themselves.  Most recently, in Thomas v. Frankenmuth Mutual Insurance Co., COA No. 326744 (Unpublished July 12, 2016), the Court of Appeals upheld Wayne County Circuit Court Judge Sheila Ann Gibson’s dismissal of a matter on the basis of fraud.

In Thomas, the plaintiff received treatment following a July 6, 2013, motor vehicle accident. During his medical treatment, he was instructed not to drive from the date of the accident through January 21, 2014. During plaintiff’s deposition, he denied driving an automobile at any time during that period. However, surveillance revealed plaintiff driving a vehicle on two occasions, despite claiming a need for medical transportation on those dates as well.

The Court of Appeals, relying on and quoting the Bahri decision, noted that the plaintiff had the ability to explain why he was driving during his deposition. Instead, plaintiff continued to represent that he had not driven at all during the relevant time period. Plaintiff’s counsel attempted to sway the court by arguing that his client’s representations were simple mistakes. However, the court noted, “If they were not knowing misrepresentations, then they were certainly reckless ones, in the face of the proof that he drove his car at least twice on the same day he availed himself of transportation services.” Id at 3.

The Court’s recent decision in Thomas strengthens the argument that the Bahri ruling was deliberate and intentional and that its effects will continue to garner attention in the trial and appellate courts. Michigan courts continue to be increasingly weary of fraudulent representations and are willing to dismiss entire PIP claims as a result. Since incidents of fraud have been on the rise over the past several years, defense counsel finding themselves in similar actions should be willing and able to offer this defense at trial.


[1] In Bahri, Plaintiff was found to have fraudulently pursued PIP and Uninsured Motorist benefits in connection with a vehicle accident. The Court granted Defendant’s Motion for Summary Disposition which sought dismissal pursuant to the general fraud exclusion in the insurance policy.  The Court stated, “[r]easonable minds could not differ in light of this clear evidence that plaintiff made fraudulent representations for purposes of recovering PIP benefits.”

Illinois Appellate Court Throws Out Jury Verdict Finding Plaintiff with Asymptomatic Asbestosis Did Not Prove Any Physical Harm

On June 20, 2016, the Fourth District of the Illinois Appellate Court held in Sondag v. Pneumo Abex Corp. (No.  4-14-0918) (4th Dist. Ill. App. Ct.) (June 20, 2016) that a plaintiff who was diagnosed with asbestosis but with a lack of any clinical symptoms suffered no physical harm and thus could not maintain a product liability claim against a defendant whose product had exposed him to asbestos.   More »

CLIENT ALERT: Dummitt/Suttner v. Crane Co. Decision May Expand Liability for Asbestos Defendants

The New York Court of Appeals held today that “the manufacturer of a product has a duty to warn of the danger arising from the known and reasonably foreseeable use of its products in combination with a third-party product which, as a matter of design, mechanics, or economic necessity, is necessity to enable the manufacturer’s product to function as intended.” More »

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