Easton Baseball / Softball, Inc. is a top manufacturer of baseball and softball products, has been subjected to a class action suit filed in United States District Court for the Central District of California. After discovering that the baseball bat he purchased for his son was heavier than advertised, plaintiff Ricky Wisdom is seeking to stop the sale of incorrectly weighted bats and recover damages for consumers paying a premium for Eastons products. Easton has acquired a strong reputation in the sporting goods industry for…

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In First Mercury Insurance Company v. Ciolino, 2018 IL App (1st) 171532, the First District of the Illinois Appellate Court held that the exoneration of an underlying claimant during a policy period does not trigger personal injury coverage for malicious … Continue reading →

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On May 21, 2018, the United States Supreme Court issued its 5-4 decision in Epic Systems Corp. v. Lewis, No. 16-285; Ernst & Young LLP v. Morris, No. 16-300; and NLRB v. Murphy Oil USA, Inc., No. 16-307 holding that an employer may require its employees to sign a dispute resolution arbitration agreement that includes an employees waiving the right to bring a claim on a class or collective action basis. To recap briefly, the question before the Court was whether, by requiring an employee to arbitrate any disputes on an individual basis, an employer violated Section 7 of the…

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Contributed by Suzanne Newcomb, May 21, 2018 The U.S. Supreme Court ruled this morning that employers can enforce class action waivers included in employment-related arbitration agreements. An arbitration agreement is a contract through which an employee and an employer agree in advance to resolve any disputes that may arise through binding arbitration rather than in […]

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For those hoping that, after the DC Court of Appeals Mann decision, DC federal district judges would again apply the DC anti-SLAPP statute in a diversity suit, as multiple judges had done before the DC Circuits Abbas decision, they are going to have to wait longer. A second DC federal district judge has now concluded that despite Mann the DC anti-SLAPP statute cannot apply in a DC federal court diversity case. First was Judge Huvelles opinion last October in Deripaska v. Associated Press, which held the court was bound to follow Abbas, because the Mann decision did not…

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In April 2018, Rebecca Murray filed a putative class action suit against Under Armour relating to the March 2018 data breach of Under Armours MyFitnessPal nutrition and fitness app. On Tuesday, May 15, 2018 Under Armour filed a notice of removal transferring the case to federal court in the Central District of California Murray v. Under Armour, 2:18-CV-04032. The case arises from a data breach which Under Armour announced in late March 2018. Under Armour said that the breach affected an estimated $150…

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Many companies, large and small, are scrambling with last-minute preparations for compliance with the European Union’s General Data Protection Regulation (GDPR), which goes into effect May 25, 2018. This is because If they don’t comply, they face fines of up to 4 percent of a company’s worldwide revenue for serious infractions or $20 million euros whichever is higher. A recent IAPP survey of U.S. and European companies carried out by the Pokmon Institute has revealed that only 52 percent of companies expect to achieve …

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New Jersey sports memorabilia dealer, Eric Inselberg, had established himself as a committed collector of New York Giants football mementos. He acquired countless items and donated more than $1 million worth of collectables to the team museum. However, his relationship with the team soured in the years leading up to a 2014 lawsuit between himself, the Giants, and Eli Manning. Days before the case was set to hit trial, an agreement was reached to settle the dispute arising out of the sale of Eli Manning…

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EPA Administrator Scott Pruitt issued a memorandum on May 9th that directs the agencys staff to begin a five-year review of the National Ambient Air Quality Standards (NAAQS) for Ozone. The Clean Air Act (CAA) requires EPA to periodically review the NAAQS, including both primary and secondary standards, for criteria air pollutants such as ozone … Continue reading "EPA Seeks Overhaul of Ozone NAAQS" The post EPA Seeks Overhaul of Ozone NAAQS appeared first on The Energy & Natural Resources Blog.

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Winners and Losers in the 2018 Colorado General Assembly The warm weather has returned, spring sports are in full swing, and the Colorado General Assembly has adjourned for 2018. That means its time to take a look at the scorecard and review the energy and utilities related issues that won and lost this legislative season. … Continue reading "Colorado Energy and Utilities Legislation" The post Colorado Energy and Utilities Legislation appeared first on The Energy & Natural Resources Blog.

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On May 11, 2018, Chili’s Grill & Bar learned that “some of [their] guests payment card information was compromised at certain Chilis restaurants” as the result of a “data incident,” according to a press release on the company’s website. Preliminary investigations suggest malware was used to gather payment card information for purchases between March and April 2018. While such data incidents are increasingly common, Chilis press release is notable for two reasons. Firstly, The release, presented as a letter to “valued guests,” provided…

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With Administrator Scott Pruitt at its helm, cooperative federalism is the frequently recited principle underlying recent EPA enforcement efforts. As the Environmental Protection Agencys regulatory oversight in areas like the Clean Water Act is delegated to the states, the agency is relying more upon state and local authorities to enforce the laws. There are shortcomings associated with this approach, which were raised in the recent U.S. Court of Appeals for the Ninth Circuit decision, Hawaii Wildlife Fund v. County of Maui. This decision creates uncertainty that unnecessarily exposes the regulated community to greater liability and costs. At issue in Hawaii…

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Contributed by Allison P. Sues, May 15, 2018 Last month, the United States Court of Appeals for the Fifth Circuit issued an opinion that provides a helpful reminder about the extent to which an employer may ask an employee to work during a leave taken under the Family Medical Leave Act (FMLA). In DOnofrio v. […]

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In its recent decision in Barron v. NCMIC Ins. Co., 2018 U.S. Dist. LEXIS 75512 (D. Mass. May 4, 2018), the United States District Court for the District of Massachusetts had occasion to consider whether billing practices qualify as a … Continue reading →

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Here is an interesting article from the Washington Post that highlights a growing legal issue in the drone world. Drone flight is illegal over NFL stadiums, but enforcement is almost impossible. Technologies exist to mitigate or interfere with drone use. But, whether such anti-drone technologies are legal is extremely dubious in the current legal environment. […]

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Virginia law requires most employers to carry workers compensation insurance in order to provide specific benefits to workers injured during the course of their work and to provide employers with protection from civil suits for those work-related injuries. Generally, an employer with more than three employees is required to carry workers compensation coverage. However, in the last decade especially, employers have more frequently misclassified employees as independent contractors in an effort to keep the number of employees below three and to avoid purchasing workers compensation coverage. Misclassification of employees as independent contractors can benefit the individual employers, but it has…

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Employees should feel safe at work. But not everyone is that fortunate, including an assistant manager at a Burger King who was attacked at gunpoint when attempting to make a bank deposit on behalf of his employer. He allegedly suffered from PTSD and depression. Burger King denied his request for an accommodation by changing his work schedule prompting an interesting decision.

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In Interactive Communications International, Inc. v. Great American Insurance Company, a lawsuit closely monitored by those in the cyberinsurance space, the Eleventh Circuit affirmed a Georgia federal courts decision, finding an insurance policys Computer Fraud coverage did not extend to certain losses caused by fraudsters. The decision comports with other recent decisions finding that social engineering fraud schemes do not satisfy the policys requirement of losses resulting directly from the use of a computer. Here, the devil was in the details. InComm operated a…

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Many California courts, politicians and regulators seem intent on attacking trucking and transportation companies. The California Supreme Court s April 30, 2018 Dynamex Operations West Inc. v. Superior Court (Case No. S222732) decision is the latest example of this assault on the industry. Much has already written about this decision and its ramifications in California when testing whether independent contractor drivers should be considered to be employees of the motor carriers with whom they contract. Once again, as is to often the case, the Court failed to give consideration to the fundamental reality that independent contractors prefer to be independent,…

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In Part 1 of this blog, we discussed whether asking verdict-related questions early in a mock trial can cause a commitment effect in mock jurors, such that they are less likely to change their opinions as more evidence is presented. Now, well extend this idea into real world trials, because some venues allow jurors to […] The post Commitment Effects, Part 2: Does Allowing Juror Discussion Prior to Deliberation Affect Their Decision Making appeared first on Litigation Insights.

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In Mkt. Place North Condo. Assn v. Affiliated FM Ins. Co., No. C17-625 RSM, 2018 U.S. Dist. Lexis 76724 (W.D. Wash. May 7, 2018), the United Stated District Court for the Western District of Washington found in favor of Affiliated … Continue reading →

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The Arizona Constitution requires that the Arizona Corporation Commission (Commission) approve just and reasonable rates, the determination of which is to be evaluated by the Commission. In Freeport Minerals Corporation v. Arizona Corporation Commission, the Court of Appeals upheld rates for Tucson Electric Power Co. (TEP) and ruled that the Commissions actions are presumed to … Continue reading "Court of Appeals Confirms that Arizona Constitution Authorizes Arizona Corporation Commission to Determine Energy Rates" The post Court of Appeals Confirms that Arizona Constitution Authorizes Arizona Corporation Commission to Determine Energy Rates appeared first on The Energy & Natural Resources Blog.

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The U.S. House of Representatives announced, at the end of last month, passage of the 2018 FAA Reauthorization Act by an overwhelming majority: 393 to 13. The Act includes a host of provisions relevant to the drone industry and in particular opens the door to an easier future for drone delivery programs. Lost in much […]

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The US Department of Transportation released the list of sites to test drone delivery and nighttime flightpart of the Trump administrations express goal of promoting a variety of commercial operations for drones that are currently barred by FAA Rules. San Diego is one of ten sites chosen across the countrythe only in Californiaand will focus […]

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Contributed by Jonathon Hoag, May 8, 2018 At age 58, Dale Kleber was an out of work experienced attorney searching for full-time employment. He applied for a position as a Senior Counsel, Procedural Solutions that required the ability to assume complex business projects.The position description also stated that applicants must have at least 3 years […]

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In its recent decision in National Union Fire Insurance Co. of Pittsburgh, PA v. Burlington Ins. Co., 2018 N.Y. Misc. LEXIS 1503 (Sup. Ct. NY Co. Apr. 27, 2018), the Supreme Court of New York for New York County considered … Continue reading →

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The smoking gun. That key piece of evidence that will conclusively prove your client's case and guarantee victory may be out there. Truly dispositive evidence is rare, given that most cases turn on a series of events, an application of the law or several facts, as opposed to one document or one line of testimony. But what if you discover that key fact which is harmful to your own claim It may be tempting to quickly settle the case without disclosing the smoking gun. Not so fast. A recent decision from the Western District of Pennsylvania has taken issue with…

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Last year, I blogged about the Wilkenfeld v. Steward Partners complaint filed in DC Superior Court, where Ari Wilkenfeld was asking the court to stop an arbitration from proceeding against him, because he believed the defamation claim therein was a SLAPP. I thought that Wilkenfeld would have a difficult time asking a Superior Court judge to use the DC anti-SLAPP statute to stop an arbitration. I was correct. The defendants responded to Wilkenfelds Superior Court complaint with an extended brief, arguing that it failed for multiple reasons including: (1) the arbitrator had exclusive jurisdiction over the dispute; (2) the DC…

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The 2018 publication ofChambers USAs Guide to Americas Leading Lawyers for Business has been releasedandQuattlebaum, Grooms & TullPLLC, received the highest ranking possible in the areas of General Commercial Litigation and Real Estate for law firms in Arkansas and was also recognized for its Corporate/Commercial and Labor & Employment practices. Steven W. Quattlebaum, Timothy W.... Read More The post QG&T Recognized in 2018 Chambers USA appeared first on Quattlebaum, Grooms and Tull.

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Consumers use brands to make choices, demonstrate loyalty and determine value. A brands ultimate goal, from a company perspective, is to accelerate growth and generate value (i.e., goodwill). But what is goodwill as it relates to trademarks how is it tied to trademark selection and does it affect licensing, acquisitions and litigation Intellectual Property … Continue reading "The Value of Goodwill in Trademarks" The post The Value of Goodwill in Trademarks appeared first on The Intellectual Property Blog.

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Last November, I blogged about Robo-Team NA, Inc. v. Endeavor Robotics, where Robo-Team alleged that a competitor (Endeavor) spread a false rumor that the Chinese government controlled Robo-Team, and used it to steal military technology from the United States. Robo-Team sued Endeavor and its lobbying firm (Sachem) for defamation, tortious interference with contactual and other business relationships, civil conspiracy, and unfair competition. Both defendants filed anti-SLAPP special motions to dismiss (along with traditional motions to dismiss). I thought a decision might offer a glimpse into whether the DC anti-SLAPP statute was applicable in a federal court diversity case and/or the…

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The annual Climbing Wall Association (CWA) Summit in Loveland, Colorado, kicks off the week of May 14, 2018, with pre-conferences leading up to the premier trade show for the indoor climbing industry on May 17-18th. This show will unlock endless opportunities for indoor rock climbing gyms, product manufacturers, recreation centers and other industry players to … Continue reading "Climbing Wall Industry Reaching New Heights Ahead of Annual Summit" The post Climbing Wall Industry Reaching New Heights Ahead of Annual Summit appeared first on The Sports & Outdoor Recreation Blog.

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No one is perfect. In the adversarial arena of litigation, attorneys are rarely willing to admit even having a weak legal argument, let alone an actual error. However, the American Bar Association recently issued an opinion which makes it an ethical duty for attorneys to disclose any material errors in representation to their clients.

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The Tip Income Protection Act of 2018 (the Act) was signed into law on March 23, 2018 as part of the omnibus spending bill. The Act, buried in the 2,323 pages of the bill, amends the Fair Labor Standards Act (FLSA) and rolls back the Department of Labors 2011 regulation on tip pools. The Act allows for employees who do not customarily receive tips to participate in tip pools, where the employer does not take a tip credit. The employees referred to in this act also include the back of the house employees like busboys, chefs, line cooks, and janitors.…

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The impact will be significant and yes, U.S. businesses will be impacted. GDPR will impact any U.S. company that has a web presence and markets their goods or services to European markets.A recentstudyby the International Association of Privacy Professionals indicated that Fortunes Global 500 will spend roughly 7.8 billion to implement GDPR.IAPP also estimates that … Continue reading "Are You Ready for the General Data Protection Regulation (GDPR)" The post Are You Ready for the General Data Protection Regulation (GDPR) appeared first on The Intellectual Property Blog.

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Hints on a possible presidential run by Colorado Gov. John Hickenlooper could boost attention for outdoor-industry issues in the 2020 campaign. Hickenlooper was in Washington, D.C., on Tuesday to accept the annual Friend of the Outdoor Industry Award during the Outdoor Industry Associations (OIA) annual Capitol Summit and hinted at a possible 2020 presidential run. … Continue reading "A Friend of the Outdoors: Colorado Governor Hints at Possible Presidential Run" The post A Friend of the Outdoors: Colorado Governor Hints at Possible Presidential Run appeared first on The Sports & Outdoor Recreation Blog.

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(“This superconducting chip, with a total area of one square centimeter, consists of nine qubits in a 1D array. Microwave pusles are applied to control their states and their interaction, and consequently control the dynamics of the system. Such Josephson-junction … Continue reading →

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In a recent opinion [DSS Technology Management. v. Apple Inc., (Fed. Cir. 3/23/2018)], the Federal Circuit iterated that the Patent Trial and Appeal Board (the Board) must provide additional rationale beyond ordinary creativity and common sense for modifying a single reference for rendering a claim invalid. Reference to the ordinary creativity of the ordinary skilled … Continue reading "Ordinary Creativity or Common Sense Are Not Enough to Support PTAB’s Finding of Obviousness" The post Ordinary Creativity or Common Sense Are Not Enough to Support PTAB’s Finding of Obviousness appeared first on The Intellectual Property Blog.

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Time and time again, the American public reels from the traumas of mass shootings. Virginia Tech, Aurora, Pulse Night Club, Sandy Hook, Las Vegas, Sutherland Springs Church,and, just last month, Stoneman Douglas all fatal shootings we’ve heard and read about, occurring in different places, at different times of day, and targeting different people. The frequency […] The post Active Shooter Premises Liability: What Are Jurors’ Expectations of Safety appeared first on Litigation Insights.

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The April 2, 2018, issue of the Northwest Arkansas Business Journal features an article by Brandon B. Cate, “Restaurants, Guns and Signs”, concerning the Arkansas concealed-handgun law and how it pertains to bars and restaurants. Please click here to read Brandon’s article.     The post Brandon Cate Provides Commentary for Northwest Arkansas Business Journal appeared first on Quattlebaum, Grooms and Tull.

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April 2, 2018 By Brandon B. Cate | During the 2017 legislative session, Arkansas enacted two new acts concerning public and private places and concealed handguns. While the act concerning concealed handguns on college campuses received much attention, the same act authorized bar patrons to carry a concealed handgun under certain circumstances. Nevertheless, a bar... Read More The post Restaurants, Guns and Signs appeared first on Quattlebaum, Grooms and Tull.

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The Michigan Supreme Court has appointed the Honorable Christopher M. Murray to serve as the Chief Judge for the Court of Appeals.  Chief Judge Murray has served on the Court of Appeals since 2002, and has been serving as Chief Judge Pro Tem pending the retirement of the Honorable Michael J. Talbot's retirement this month.  Chief Judge Murray will complete the current two year term for chief judge, which expires December 31, 2019. 

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In Hicks v. American Integrity Insurance Company, 43 Fla. L. Weekly D 446 (Fla. 5th DCA 2018), the Fifth District reversed summary judgment in favor of American Integrity, finding that the trial court misapplied a policy provision excluding damages caused … Continue reading →

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In a 5-4 decision, the Supreme Court ruled on Monday that automobile service advisors are exempt from the overtime requirements of the Fair Labor Standards Act. While the decision would appear to apply only to a narrow class of employers (automobile dealers), the majority opinion rejected the principle that exemptions to the FLSA should be construed narrowly, which has the potential for much broader impact. Encino Motorcars v Navarro involved an exemption under the FLSA which provides that that statutes overtime-pay requirement does not apply to any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles . .…

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From Legal Tech News and ALM comes a good lawyer practice tip report from Federal Judges Sallie Kim and Xavier Rodriguez. Major hint is for lawyers to go back and read the 2015 revisions to the Federal Rules which govern … Continue reading →

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Here is an article I wrote which was published by DRI in their IDQ (In-house Defense Quarterly) to promote the DRI Corporate Counsel Round Table meeting in Washington D.C. which was held in January. It highlights the uncertainty in business … Continue reading →

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Title VII of the Civil Rights Act of 1964 prohibits employers of 15 or more employees and engaged in interstate commerce from discriminating against employees on the basis of sex, in addition to other categories. Sex discrimination prohibited by Title VII includes pregnancy discrimination. This blog post addresses how the Equal Employment Opportunity Commission (EEOC) may have misapplied Title VII in the context of lifting restrictions at a nursing facility. On March 7, 2018, the Equal Employment Opportunity Commission filed a complaint asserting sex discrimination against a North Carolina rehabilitation and nursing center on behalf of two nursing assistants. The…

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A few days ago, a woman in Arizona lost her life when she was involved in a collision with an Uber vehicle operating in autonomous mode.

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A prescriptive easement arises in a manner similar to adverse possession—after 15 years of open, continuous, notorious, and adverse use.  In the landmark decision of Marlette Auto Wash, LLC v. Van Dyke SC Properties, LLC, No. 153979, the Michigan Supreme Court put to rest all doubts that a prescriptive easement vests automatically after 15 years, regardless of whether the adverse user ever took legal action to claim the easement.  Once the 15 years has run, the easement vests and then runs with the land, like any express easement, even if it is not mentioned in any deed or reflected in…

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On March 19, 2018, Michigan Governor Rick Snyder signed into law a new set of exemptions protecting certain types of information from disclosure under the state’s Freedom of Information Act. The measures are designed to protect the confidentiality, integrity, and availability of certain information systems, as well as cybersecurity plans, assessments, or vulnerabilities.

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In a long running legal dispute with an aftermarket trade organization, Ford Motor Company recently survived a legal challenge to its design patents for F-150 replacement parts.  Responding to a summary judgment motion, Judge Michelson of the U.S. District Court for the Eastern District of Michigan (Detroit) declined to adopt arguments that would have invalidated not just Ford’s design patents, but design patents covering nearly all aftermarket automobile parts.

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On more than one occasion, Ive been in court when the judge asked counsel if they would like to allow jurors to submit any questions for witnesses following their testimony. In most cases, judges have indicated they would allow juror questions if both parties agreed, yet attorneys are rarely sure if it is a good […] The post Should I Allow Jurors to Ask Questions of Witnesses appeared first on Litigation Insights.

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On January 19, 2018, Maryland House Bill 283 was introduced by Republican Delegate Robin Grammer. The bill exempts competitive video games, known as eSports, from the states laws banning wagering and gambling. eSports is defined as video games such as first-person shooters, real-time strategy games, and multiplayer online battle arenas in which: players compete against … Continue reading "eSports Legislation in Maryland" The post eSports Legislation in Maryland appeared first on The Sports & Outdoor Recreation Blog.

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In the recent case of Libman v. Great Northern Ins. Co., 2018 U.S. Dist. LEXIS 24580 (N.D. IL February 15, 2018), the Court addressed whether a property owner was entitled to replacement cost coverage for loss at an insured location … Continue reading →

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We’re moving! Shale Watch has started posting on Environmental Law Monitor – Goldberg Segalla’s newest resource for up-to-date information on all things happening in environmental law. ELM reviews the latest legal developments arising out of hydraulic fracturing, as well asthe legal implications environmental policy and regulation have on manufacturing, distribution, end usage, and product disposal. All future hydraulic fracturing-related updates will be published through the Environmental Law Monitors weekly email digest. Sign up for the ELM weekly digest to continue receiving updates on everything…

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The Michigan Supreme Court has granted mini-oral argument in Sejasmi Industries, Inc v Quality Cavity, Inc, No. 156341, to consider the interpretation and application of the molder’s lien act, MCL 445.619(5)(b).  Specifically, the MSC will hear argument as to whether the statutory provision requires payment to the moldbuilder to extinguish the moldbuilder's lien.

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On January 11, 2018, Judge Steven Merryday, United States District Court judge for the Middle District of Florida, vacated a False Claims Act (FCA) judgment for $350 million against 53 nursing facilities.1 The purported FCA violation was for failure to maintain comprehensive care plans and other documentation as required by Centers for Medicare and Medicaid Services (CMS) regulations. The whistleblowers claim relied on the implied false certification theory endorsed by the U.S. Supreme Court in Escobar.2 What the whistleblower did not contemplate was Judge Merrydays astute materiality and scienter analysis. Importantly, Judge Merrydays analysis illustrates a workaround for long term…

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Multi-million dollar settlements in False Claims Act (FCA) cases against long term care (LTC) facilities made headlines several times in 2017. I have blogged several times on the FCA and could not allow this trend to go without comment. We all know that the purpose of the FCA is to penalize government contractors that submit false claims for reimbursement to government programs. The penalty is triggered when anyone knowingly presents or causes to be presented a false or fraudulent claim for payment or approval or knowingly makes, uses or causes to be made or used a false record or statement…

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When someone is faced with a decision that he doesn’t think he has the right to make, he can respond that “it’s above my pay grade.” The phrase appears to have originated in the US military – which has pay grades – and spread from there. About a decade ago, the First Circuit and Ninth […]

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Just as the state has allowed legalized adult use of cannabis, the feds have thrown a wrench in California's new "Green Rush" era.

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One of the most common questions we receive from Community Association clients is how do we preserve our lien for and recover delinquent assessments  The frustrating reality is that some owners in Community Associations fail to pay their assessments in a timely manner.  These delinquencies can create serious financial issues within the community.  There are a few ways for Community Associations to pursue delinquent assessments.  In part one of this series on collection remedies, we will discuss one method of collection, or rather, preservation, of a Community Association’s lien: the memorandum of lien. What is a memorandum of lien A…

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Crowdfunding offers an option to startups and small businesses to raise capital, although it is a greatly misunderstood and misused term. It refers to the pooling of money from a crowd for the funding of a project or venture, whether utilizing a donation model, reward model, royalty model, debt model or equity model. Securities laws apply when equity or debt securities are offered. In regard to crowdfunding, Congress amended the Securities Act to allow for an exemption from the registration of such securities if the issuer complies with certain rules and restrictions. To implement this amendment, federal crowdfunding rules were…

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Its now been widely reported that the cause of the recent Equifax data breach, which compromised the personal data of perhaps as many as 143 million people, was the result of the companys alleged failure to apply a patch to fix a known security hole in some open source software (OSS), known as Apache Struts. But there is now some controversy about whether those reports are accurate or reliable, and some of the early reports have since been retracted. There is technical complexity about security holes in OSS and application of patches that have led to conflicting viewpoints on how…

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The fight is not over yet, but the insurance industry just had a significant victory in the United States Court of Appeals for the Ninth Circuit. The scenario is likely familiar to most. Youre invited to send a text and get something in returnmaybe news updates, maybe a chance to win concert tickets. In this case it was the promise of having your sent text posted at a basketball game. Someone sent a text hoping to see their message on a big screen at a Lakers game, and then shortly thereafter got a text back reading something along the lines…

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Consider Adding Trademark Classes to Aid Enforcement of Brand Identity In trademark law, marks come in two distinct flavors: trademarks that are used to identify the source of tangible products, and service marks that identify the source of services. As one example, colleges are in the business of providing education and commonly obtain federal service … Continue reading "Could Your Service Mark Someday Appear on a Branded Product" The post Could Your Service Mark Someday Appear on a Branded Product appeared first on The Fashion Intellectual Property Blog.

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In performing the likelihood of confusion analysis between a registered trademark and an applied for mark, the Trademark Trial and Appeal Board (the Board) considers a range of factors known as the du Pont factors. One of the factors upon which a case can turn is the similarity of the two relevant marks. When comparing … Continue reading "Third-Party Registrations and Uses for Marks Similar to the Cited Registered Trademark Are Again Deemed Insufficient to Carry the Day" The post Third-Party Registrations and Uses for Marks Similar to the Cited Registered Trademark Are Again Deemed Insufficient to Carry the Day…

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That was the question the Trademark Trial and Appeal Board (the Board) sought to answer in the application proceedings of In re Don Calder. In this case, the trademark applicant sought to register the mark CALIFORNIA REPUBLIC (with CALIFORNIA disclaimed) for various clothing goods, including shoes, pants, jeans, shorts, hats, jackets, and belts in International … Continue reading "Does the Standard Word Mark CALIFORNIA REPUBLIC Create a Likelihood of Confusion with a Registered Mark Incorporating the Words “REPUBLIK of KALIFORNIA”" The post Does the Standard Word Mark CALIFORNIA REPUBLIC Create a Likelihood of Confusion with a Registered Mark Incorporating the…

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With the legalization of cannabis in California, cannabis businesses will need to address their real estate needs. As not many businesses can afford to buy a building outright, leases will need to be negotiated and executed. However, cannabis related real estate leases will need to be handled more carefully than a normal commercial lease.

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In 1966, California voters decriminalized the medical use of marijuana by approving the California Compassionate Use Act. In 2015, the voters approved the Medical Cannabis Regulation and Safety Act ("MCRSA"), to regulate the medical marijuana industry. In 2016, California voters approved the Adult Use of Marijuana Act ("AUMA"), allowing (1) individual adults to possess, use, purchase, transport, or give away up to 28.5 grams of marijuana or 8 grams of concentrated marijuana; (2) them to grow up to 6 plants and possess the marijuana produced by the plants; and, (3) legally possess marijuana accessories.

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A multi-unit franchise owner can structure its operations in a number of ways, but one approach in particular often makes a lot of sense: a developer entity that acts as the parent company for the individual franchise locations. First some background. Many franchisors seek out franchisees who want to open three or more units. One approach is to sign a development agreement in which the developer commits to open an agreed-upon number of franchise units in a defined territory over a specified period. In exchange, the franchisor agrees not to open a company-owned unit or to grant a franchise to…

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Walt Disney (Disney) suffered a loss last week in an adverse employment action based on its use of information in consumer reports as part of its employment screening process. The plaintiffs have alleged that they were injured when inaccurate credit reporting information, which they had no opportunity to challenge or correct, became a factor in … Continue reading Los Angeles Judge Elects Generalized Common Issue to Justify Class Certification →

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A franchisor selling franchises in the U.S. must disclose its audited financial statements in Item 21 of the franchise disclosure document (FDD). Sometimes, parent company financials are used instead of the franchisors financials. This is easily done when the parent company is a public company that already has audited financials. But most franchisors are not public companies. They are not likely to have parent company audited financials and would prefer not to incur the added expense of auditing a group of companies rather than just the franchisor entity. Audits are expensive. The franchisor may also want to shield its parent…

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On November 11, 2016, the Standing Committee of the National People’s Congress promulgated the “Internet Security Law of the People ‘s Republic of China” commonly referred to as the “Cybersecurity Law of China.” Unlike the EU’s General Data Protection Regulation (GDPR) which gave businesses two years to prepare, the new law becomes implemented June 1, … Continue reading China Enacts Data Privacy Law Under Guise of Cybersecurity →

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On March 17, 2017, the Department of Industrial Relations (DIR) submitted Budget Trailer Bill 502. Budget Trailer Bill 502 would provide changes to the existing contractor registration requirements, as well as changes to the requirement for agencies to provide the DIR with notice of pending public works projects, as initially required by SB 854. SB… Continue Reading The post Budget Trailer Bill 502 would expand DIR fines and agency notice requirements appeared first on Infrastructure Law Blog.

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In recent months,bankruptcy lawyers have begun to bring strikingly similar FCRA lawsuits on behalf of former clients who went through Chapter 13 bankruptcy. This post will discuss these cases and how defendants are responding to them by winning on the merits, then moving for sanctions. The first few paragraphs will set the stage by explaining […]

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In McGill v. Citibank, N.A.,No., S224086 (Cal. Apr. 6, 1017), the California Supreme Court recently held that pre-dispute arbitration agreements that purport to waive the remedy of injunctive relief under California consumer statutes that have the primary purpose and effect of prohibiting unlawful acts that threaten future injury to the public in any forum, are … Continue reading Court: Arbitration Agreements That Waive Injunctive Relief Under CA Consumer Statutes Are Unenforceable →

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A new bill, AB 851, was introduced in the California legislature on February 16 that would expand the scope of the design-build authority currently available to local agencies. If adopted, AB 851 would amend Public Contract Code sections 22161 to expand the definition of special districts that can utilize the design-build authority under Public Contract… Continue Reading The post New bill would expand design-build authority for local agencies appeared first on Infrastructure Law Blog.

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One of the toughest challenges an aspiring franchisor may face is selling its first franchise. Who would take the risk of buying a franchise from a franchise company that has no franchisees For a few successful business owners, the idea of franchising may come from one or more customers who love the business concept and initiate the idea of buying a franchise even before the owner has taken the first step to prepare a franchise offering. But this rarely happens. Heres another suggestion: If the aspiring franchisor has a successful business unit (a store or a restaurant, for example) that…

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According to the United States Census Bureau, Canada is the USAs second largest trading partner, only slightly behind China, with over $500 billion in two-way trade goods annually. The industrial economies of Canada and the USA are highly integrated, with manufacturing plants in each country sending millions of components back and forth over the boarder […]

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This article by Griff Palmer in the NY Times Business Day section examines three P3 projects in the US, and compares the promises with some of the disappointments. The article provides a good overview of the significant issues that must be considered in order for a P3 to be successful for all concerned. https://www.nytimes.com/2016/12/24/business/dealbook/private-equity-water.htmlemc=edit_ta_20161224&nlid=51116999&ref=cta&_r=0  … Continue Reading The post Are P3s the answer to our infrastructure needs NYT article raises concerns. appeared first on Infrastructure Law Blog.

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What happens when adult children still living at home refuse to leave As the boomer generation ages and look to downsize, check this is a question that more and more parents might have to consider. While it may sound unlikely, prescription this scenario has the potential to cause some headaches for parents in the years […]

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If there is one word that everyone in the residential rental market hates, purchase it is bedbugs. Over the past few years bedbug outbreaks have become more common as the pests are notoriously difficult to fully exterminate. Bedbugs can live for months, even up to a year, without food and they can hide in small […]

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Last year, we followed the story of ballot efforts on a local level to preclude GMO crops from being grown in certain counties in Hawaii. The ballot initiatives, which banned GMO crops within the borders of the counties, passed by narrow margins, but were immediately struck down in court after a challenge from various agricultural companies. Local organizations filed an appeal to the Ninth Circuit, seeking to overturn the District Court decision stating that the ballot initiatives were preempted by federal and state laws. The…

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On March 30, 2016, Judge Rosemary M. Collyer of the U.S. District Court for the District of Columbia stripped MetLife of its designation as a nonbank systemically important financial institution (nonbank SIFI). She held that the designation was arbitrary and capricious as the Financial Stability Oversight Council (FSOC) failed to follow proper administrative procedures during the evaluation process. Just over a week later, FSOC walked down the hall of the U.S. Courthouse at 333 Constitution Avenue, NW and filed its

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On October 20, 2016, the District of Columbia Court of Appeals abandoned the long-used Dyas/Frye test to govern the admissibility of expert testimony in favor of the standards embodied in Rule 702 of the Federal Rules of Evidence. The court issued its decision after the lower court permitted plaintiff expert opinions linking cell phone use to brain tumors under the then-existing Dyas/Frye standard. In the matter of Motorola Inc. v. Henry, plaintiffs in thirteen cases had sued numerous cell phone manufacturers, service providers…

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Ambiguity surrounding the term commencing led a court to deny an insurers motion seeking to dismiss an insureds property damage claim, despite the insureds inability to state when the property damage at issue first occurred. In a question of first impression, a federal district court in Illinois denied an insurers motion for summary judgment earlier this month, ruling that the term commencing during the policy period was ambiguous when applied to the circumstances of the case. Temperature Serv. Co. v.

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The Seventh Circuit recently affirmed a district court decision upholding payment under a life insurance policy purchased by a securities intermediary. The decision first addressed the common laws prohibition on wagering contracts, or stranger-originated life insurance, and the traditional remedy which invalidates any such policy of insurance. However, this case was subject to Wisconsin law, whose legislature places the risk on the insurer for issuing a policy to someone without an insurable interest by refusing to invalidate such contracts. Specifically,

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This month’s post will attempt to establish something that I’ve always vaguely known to be true, but never had occasion to fully research: the FCRA applies toconsumers who are trying to get personal credit, not credit for their business. Most courts treat this as a well-established point. See, e.g., Frydman v. Experian Info. Solutions, Inc., […]

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NancyBors, as administrator of the Estate of Maureen Milliken, brought this action against Imerys Talc America Inc. and Johnson and Johnson for claims in negligence for their design, development, manufacture, testing, packaging, promoting, marketing, distribution, labeling, and/or sale of Johnson and Johnson baby powder Milliken allegedly developed and died from ovarian cancer. Imerys moved to dismiss and argued that the court lacked jurisdiction or in the alternative for failure to state a claim. Specific to its argument, Imerys took the position that it had…

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Article courtesy of the Washington Legal Foundation, by John J. Jablonski The king is dead. Long live the king. European monarchies conveyed the immediate passage of sovereignty from a dead ruler to a new one with this proclamation. It works as well for the amendment of Federal Rules of Civil Procedure 26(b)(1) and 37(e), because in many ways an old governing rule on discovery passed away on December 1, 2015, when the amendments took effectbut the ghost of the old ruler still haunts both…

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Environmental groups recently filed a lawsuitin the United States District Court for the Southern District of Florida, Fort Myers Division, seeking to challenge the National Park Service, Department of the Interior, and others, with respect tothe recent approval of seismic testing. Seismic testing is utilized to identify oil and gas. Specifically, the plaintiffs allege that the testing threatens the Big Cypress national preserve: Big Cypress is an extraordinary and unique national treasure. It is an extension of the Everglades hydrologic system and provides…

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Recently the North Carolina Court of Appeals in In re: Ballard (N.C. Ct. App. COA15-475, March 15, 2016) held that a foreclosing lender in North Carolina was not under any duty to bid the same amountat aresale of foreclosed propertyas it did at the first sale of the same property when the last ... (More)

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It is with great pride and pleasure that Thorndal Armstrong Delk Balkenbush & Eisinger attorneys and staff members recently collected The post Firm Helps Nevada Army National Guard appeared first on Thorndal.

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On May 16, 2016, the U.S. Supreme Court issued its opinion in Husky International Electronic, Inc. v. Ritz. The opinion is a favorable development for creditors because it expands the types of fraudulent conduct that can prevent a debtor from discharging debts in bankruptcy. Specifically, the court... (More)

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ANALYSIS/OPINION: The Little Sisters of the Poor and the government have filed their final briefs in the longstanding tussle over the administrations contraception mandate. The briefs respond to a highly unusual order from theSupreme Court, issued days after the oral arguments, which asks the parties to consider again whether the government can improve access to The post The threadbare case against Little Sisters of the Poor appeared first on Lewis Roca Rothgerber Christie - Religious Liberty Archive & Blog.

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The lawyers are looking at it. That, in so many words, has been the response given by Secretary of State John Kerry and the White House every time they have been pressed on whether the State Department will call the Islamic States war on religious minorities genocide. Kerry faces a congressionally mandated deadline on Thursday The post Call ISIL’s religious war what it is: Genocide appeared first on Lewis Roca Rothgerber Christie - Religious Liberty Archive & Blog.

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Christians across the Middle East are suffering and dying for their faith, and the United States government has called it a genocide. Here are four ways you, your family, and your church can help. [NOTE: This post originally appeared at the Mystery of Faith Blogand is reprinted here with permission. LRRC attorneys Martin Nussbaum and The post Genocide Against Christians (And How the Church Can Help) appeared first on Lewis Roca Rothgerber Christie - Religious Liberty Archive & Blog.

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In 2008, Congress passed legislation which extended the protection from foreclosure actions for active duty servicemembers up to 9 months after the end of the period of military service. In 2012, Congress extended that time to 12 months after the end of the military service. When the prior legisla... (More)

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After considerable debate, Pennsylvania is one step closer to approving new regulations for hydraulic fracturing. Specifically, on April 21, the Independent Regulatory Review Commission (IRRC)held a lengthy hearing with respect to the new proposed regulations.The IRRCthen approved the new proposed regulations. Among other things, the new regulations (1) ban waste pits for unconventional gas drilling, (2) requires permits and water management plan for certain drillers, (3) requires vandal proofing of tanks, and (4) requires well site restoration within nine months of drilling…

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As of July 1, 2015, the Virginia Condominium Act provides that no condominium association may impose an assessment or charge against a unit owner unless such charge or assessment (a) is expressly authorized by the Condominium Act (see particularly Va. Code Sec. 55-79.83) and/or by the condominium instruments for the community, (b) represents a fee for service provided, or (c) is a fee for a resale certificate, as provided for in the Condominium Act. Va. Code Section 55-79.42:1. The Common Interest Community Board has the authority to assess a monetary penalty and/or issue a cease and desist order against an…

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Thorndal Armstrong Delk Balkenbush & Eisinger is happy to announce it recently completed a denim drive for a charitable recycling program, Blue Jeans Go Green. The drive collected more than 50 pairs of jeans that may have otherwise been sent to a landfill. Blue Jeans Go Green started in 2006 and strives to collects denim... Read more » The post Firm Helps Denim Recycling Charity appeared first on Thorndal.

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Since our last postings on the subject of disclosure packets, the General Assembly has adopted several minor Code changes to clarify existing provisions: Delivery by Overnight Carrier  The Code section providing for cancellation of the purchase agreement within a certain time period after receipt of the resale certificate / disclosure packet previously failed to mention when the purchaser could cancel if the resale certificate / disclosure packet were delivered by overnight delivery service. For both property owners’ associations (“POAs”) and condominium associations, whether self-managed or professionally managed, if the resale certificate / disclosure packet is delivered by commercial overnight delivery…

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Earlier today a Nevada federal judge granted summary judgment in a case against a resort company that sought to hold it liable for alleged negligence of its subsidiary in Aruba. A Canadian citizen traveled to a resort on Aruba owned by a subsidiary. While there she tripped, fell and asserted an injury. Rather than suing... Read more » The post Eisinger & Parks Win Subsidiary Liability Case appeared first on Thorndal.

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Consumers Insurance Company provided underinsured motorist (UIM) coverage to Bradford Charles. Charles was subsequently injured in a motor vehicle accident with Christina Ranum. Charles attorney subsequently made a UIM claim on the Consumers UIM policy. Initially, Consumers denied UIM coverage, but subsequently determined that there may be UIM coverage under its policy. After Consumers initial [...]

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On this blog weve explored the laws related to service animals and how the ADAs regulations extend their use far past traditional notions of seeing eye dogs. In Wisconsin (admit it, you assumed this blog post was going to have an Aussie connection), a woman is treading new territory by seeking legal recognition to use a kangaroo as a therapy animal. The woman, Diana Moyer, owns several kangaroos and also has a doctors note stating that one of the kangaroosJimmyis a therapy animal to assist her in dealing with cancer treatment and depression. In no way would we ever mock…

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When you think of Uber (or similar companies like Lyft and Sidecar) you probably think of a transportation company. You request a ride on the companys app and a driver (in his own vehicle) picks you up. The nature of the companys business is, however, the very thing at issue in a series of lawsuits brought against Uber under the ADA. In lawsuits filed in Arizona, California, and Texas, individuals and disability rights organizations have accused Uber of failing to comply with ADA requirements of offering accommodations for the disabled (including individuals who are visually and mobility impaired) in providing…

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On January 21, 2015, the Federal Motor Carrier Safety Administration (FMCSA) announced through the Federal Register a study that examined (1) whether Police Accident Reports provide sufficient, consistent, and reliable information to support crash weighting determinations, (2) whether a crash weighting determination process would offer an even stronger predictor of carrier crash risk than the [...]

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On December 30, 2014, Gov. Quinn signed SB 1342 into law as P.A. 98-1142 (720 ILCS 5/14-1 et seq.); the measure puts new eavesdropping restrictions into place after the Illinois Supreme Court threw out the previous eavesdropping law last March. As a result of the March court ruling, all Illinois residents had absolutely no expectation [...]

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The price of movie tickets could be going up soon. Under new proposed regulations issued by the Department of Justice, movie theaters with digital screens would be required to show films with options for closed captioning (for hearing impaired patrons) and audio descriptions (for visually impaired patrons). Movie theaters would not be required to create their own captioning or assistive aids. Rather, when a movie is available for distribution with closed captioning and audio description, the theater must purchase the version containing these accommodations. In some circumstances, a theater may show films without these accommodations if a compliant version is…

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Thank you to LegalHold Pro for its report on this decision. The original post can be seen here. The patent infringement and trademark case of Phillip M. Adams & Assoc. v. Dell Computer Corp.has been an ongoing saga with actions dating back to the 1990s. In recent years the case had been on hiatus, but that ended on March 18, 2013 when the Federal Circuit announced its ruling on four claims that had been challenged from the earlier District Court opinion. Of particular…

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Nondisclosure agreements (NDAs) are generally straightforward documents and follow a consistent format. People often pull a form off the internet, fill in the blanks and send it off to the other side. Likewise, recipients of NDAs often skim and sign them. In general, thats OK. That being said, there are often subtle differences among form NDAs. Use the simple acronym below to confirm that you have the right kind of NDA and that youre adequately covered by it: M – Is it mutual or does it only protect the information of one party If both parties are swapping information, make…

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The definition of possession, custody, or control under FRCP 34(a) will be construed broadly and a party is not required to have physical possession of the documents to be in control of them. Therefore, companies that use independent agencies should be conscious of the requirements and provisions they place in agency contracts because they can be inferred to give rise to discovery obligations. To read ELLBlog’s analysis of Haskins v. First American Title Insurance Co., Civil No. 10-5044 (D.N.J. 2012)click here.…

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If you have started a company that needs outside investors, then you have run into someone who offered to raise money for you. [ CONTINUE READING → ]

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PPMs (Private Placement Memos for the uninitiated) look pretty complicated. They’re usually thick documents full of run-on sentences, some charts and a few paragraphs in all caps. A client asked me to describe a PPM’s structure. I drew a picture of a simple sandwich. So why are PPMs frequently so complicated Because they’re often based on legal requirements that never apply to private placements. Federal regulations state that if equity (e.g. stock) is sold to people that are so poor they must be incapable of making rational financial decisions (or as they’re known in the securities world, “nonaccredited investors”), then…

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Approximately two years ago, I commented on the Superior Court opinion in Gongloff Contracting, L.L.C. v. L. Robert Kimball & Assoc., No. 785 WDA 2014 (Pa. Super. 2015), which expanded the reach of Pennsylvania's negligent misrepresentation law from applying only to...

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Strict product liability generally focuses on the product itself, not the negligent conduct of the defendant, and as a result, defendants often are precluded from relying on certain negligence concepts in defending strict liability actions. A plaintiff's comparative fault or...

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Jones, Skelton & Hochuli, PLC is pleased to announce Phillip Stanfields selection to the American Board of Trial Advocates (ABOTA). Stanfield is the ninth lawyer from JSH to receive this distinction.Mr. Stanfield joined Jones, Skelton & Hochuli in 1987, and has been a Partner since 2003. His practice is almost exclusively devoted to the defense of transportation clients.The general purposes of the American Board of Trial Advocates is to foster improvement in the ethical and technical standards of practice in the field of advocacy to the end that individual litigants may receive more effective representation and the general public be…

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Mark D. Zukowski was recently accepted into the National Academy of Distinguished Neutrals (NADN).  NADN is a national association whose membership consists of mediators and arbitrators distinguished by their hands-on experience in the field of civil and commercial conflict resolution.  Mark is one of only 21 attorneys and former judges who have been recognized as Charter Members of the Arizona Chapter.  Parties can visit the Chapter website at www.NADN.org/arizona to schedule, at no administrative cost, mediations with Mark by having direct access to his availability calendar.

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Short Answer: Yes, but as with all non-compete provisions, proceed with caution and draft wisely. Like many states, Pennsylvania has long viewed restrictive covenants such as covenants not to compete with disfavor. Despite its preference against them, non-compete agreements are...

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The Association of Defense Trial Attorneys (ADTA) has recently selected Don Myles for membership to their organization.Don Myles has been a Partner with Jones, Skelton & Hochuli since 1987, and concentrates his practice on insurance coverage, bad faith and professional liability. He is admitted to practice in all state and federal courts in Arizona as well as the Ninth and Tenth Circuit Courts of Appeal, and the United States Supreme Court.Myles is the past President of the Arizona Association of Defense Counsel (AADC) and the USLAW Network. He is currently Senior Vice President for the Federation of Defense and Corporate…

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Cohen v. Maricopa County (Ct. Appeals, Div. One, August 16, 2011)   A man was involuntarily held in a hospital because he was a danger to self due to depression and repeated drug overdose. After inpatient treatment was completed, he was discharged from the hospital to begin court-ordered outpatient treatment with ValueOptions, the company that contracts with the State. While undergoing outpatient treatment, the man was found passed out with the drug Soma in his pocket. The man was medically cleared at the scene, but taken to an urgent care facility run by Meta Services pursuant to a subcontract with…

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Fidelity and Deposit Company of Maryland v. Bondwriter Southwest (Ct. Appeals, Div. One, July 28, 2011)   Fidelity sued Bondwriter for breach of contract and negligence, after Bondwriter delivered unapproved bonds to a contractor. An agency agreement authorized Bondwriter to solicit applications for surety bonds on Fidelity's behalf. The agreement limited Bondwriter's authority to those transactions that Fidelity specifically authorized. In one transaction, Bondwriter mistakenly delivered a bond to a contractor before Fidelity had authorized the bond. When Bondwriter employees realized their mistake, they were unable to retrieve the original bond before the contractor made copies of the bond and…

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In a landmark decision, the California Supreme Court held today that a plaintiff cannot obtain medical expense damages based on his billed medical charges, because the plaintiff was not damaged in that amount.  Howell v. Hamilton Meats & Provisions, Inc. (Cal. Supreme Court, Aug. 18, 2011).  The Court held that the plaintiff could recover only the amount of medical expenses actually paid on her behalf.  The Court said:  We hold no such recovery is allowed, for the simple reason that the injured plaintiff did not suffer any economic loss in that amount."   Plaintiff Rebecca Howell was seriously injured in…

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