In the News

Case Summaries

Class Actions

[11/26] Glazer Capital Mgmt., LP v. Magistri
Dismissal of a class action complaint alleging false statements contained in a merger agreement with a third party company is affirmed where the plaintiff has not pled facts that would either directly or indirectly give rise to a strong inference of scienter on the part of those officers responsible for making the false statements contained in the merger agreement.

[11/24] O'Bryan v. Holy See
In a class action suit against defendant-Holy See for claims of sexual abuse by Roman Catholic clergy, partial grant of defendant's motion to dismiss is affirmed where: 1) plaintiffs' response to the defendant's First Amendment challenges could not preserve plaintiffs' own Establishment Clause claim; 2) plaintiffs waived their constitutional challenges to the Foreign Sovereign Immunities Act (FSIA); 3) the district court correctly applied the FSIA's burden shifting process; 4) the portions of plaintiffs' claims that were based upon the conduct of bishops, archbishops and Holy See personnel while supervising allegedly abusive clergy satisfied all four requirements of the tortious act exception; 5) plaintiffs' claims of violation of customary international law of human rights, negligence, and breach of fiduciary duty should not be dismissed for 'arising out of...misrepresentation [or] deceit'; and 6) the last two claims advanced by plaintiffs were dismissed for arising out of misrepresentation or deceit.

[11/24] O'Bryan v. Holy See
In a class action suit against defendant-Holy See for claims of sexual abuse by Roman Catholic clergy, partial grant of defendant's motion to dismiss is affirmed where: 1) plaintiffs' response to the defendant's First Amendment challenges could not preserve plaintiffs' own Establishment Clause claim; 2) plaintiffs waived their constitutional challenges to the Foreign Sovereign Immunities Act (FSIA); 3) the district court correctly applied the FSIA's burden shifting process; 4) the portions of plaintiffs' claims that were based upon the conduct of bishops, archbishops and Holy See personnel while supervising allegedly abusive clergy satisfied all four requirements of the tortious act exception; 5) plaintiffs' claims of violation of customary international law of human rights, negligence, and breach of fiduciary duty should not be dismissed for 'arising out of...misrepresentation [or] deceit'; and 6) the last two claims advanced by plaintiffs were dismissed for arising out of misrepresentation or deceit.

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Commercial Law

[12/03] Andrzejewski v. Fed. Aviation Admin.
In proceedings arising after the FAA revoked petitioner's commercial pilot's license via emergency order, pilot's petition for review of an NTSB order reversing an ALJ's decision in pilot's favor is granted and the matter remanded where the NTSB's failure to give the ALJ's implicit credibility determination the requisite level of deference was contrary to NTSB precedent and, therefore, arbitrary and capricious.

[11/25] Glencoe v. Neue Sentimental Film AG
In a matter arising out of a commercial property lease, order denying defendants attorneys fees is affirmed where: 1) when a contract provides that the prevailing party is entitled to attorney fees and the plaintiff dismisses the action with prejudice after the start of trial, the defendant is not entitled to attorney fees as the prevailing party; and 2) the defendant did not make statutory offer to compromise within the meaning of Code of Civil Procedure section 998 and could not recover attorney fees as costs under that statute.

[11/24] LaBarge Pipe & Steel Co. v. First Bank
In a suit alleging tort and contract claims relating to a letter of credit issued by defendants, summary judgment for defendants is affirmed in part and reversed and remanded in part where: 1) a facsimile letter of credit presented by plaintiff was not an original letter of credit, and plaintiff's attempt to draw on the letter was therefore invalid; but 2) an "incurable defect" exception to the provisions of Uniform Customs and Practice Article 16(d) did not apply, and defendant could not raise the defective presentation as a defense to honoring the amount of plaintiff's draw on the letter of credit; and 3) plaintiff did not produce evidence that it relied on alleged negligent misrepresentations by defendants.

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Consumer Protection

[11/26] Archer v. Nissan Motor Acceptance Corp.
In a suit under the Equal Credit Opportunity Act (ECOA) and state law, alleging that defendant engaged in discriminatory dealer loans, and misrepresented that plaintiffs were receiving the "best rate" on their car loans, summary judgment for defendants is affirmed where the claims were brought well outside their respective limitations periods, and no judicially imposed equitable doctrine, such as a discovery rule, saved the claims.

[11/14] H&R Block, Inc. v. Am. Int'l Specialty Lines Ins. Co.
Class actions filed against nationwide tax preparer H&R Block asserting a variety of statutory and common law claims arising out of H&R's Refund Anticipation Loan (RAL) program are excluded from "prior acts" coverage under professional liability "claims made" insurance policies because other class actions asserting similar claims were filed prior to the policy periods.

[11/10] Sherer v. Green Tree Servicing LLC
In a suit involving Fair Debt Collection Practices Act and Fair Credit Reporting Act claims, denial of a motion to compel arbitration is reversed where the arbitration clause in question bound plaintiff to arbitrate his dispute with defendant, even though defendant was not a signatory to the original agreement. (Revised opinion)

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Contracts

[12/02] Lawrence v. Graubard Miller
In a suit arising from legal proceedings surrounding the administration of an estate, denial of a motion to dismiss a law firm's petition seeking to compel the payment of legal fees is affirmed where the question of whether the retainer agreement at issue was unenforceable on the basis of unconscionability, either at the time it was entered into or in retrospect, was a factual one that could not be answered at the pre-answer motion stage.

[12/02] Huschke v. Slater
In a matter involving an order for defendant attorney to pay a discovery sanction, motion to dismiss appeal is granted and court imposes monetary sanctions payable to the courts on defendant's counsel where: 1) the dispute between the parties was resolved by a settlement agreement; and 2) defendant's counsel's violation of rule 8.244 was not just unsatisfactorily explained and unreasonable, but was also injurious to the court, other parties, and taxpayers.

[11/10] Sherer v. Green Tree Servicing LLC
In a suit involving Fair Debt Collection Practices Act and Fair Credit Reporting Act claims, denial of a motion to compel arbitration is reversed where the arbitration clause in question bound plaintiff to arbitrate his dispute with defendant, even though defendant was not a signatory to the original agreement. (Revised opinion)

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Elder Law

[11/12] James v. Richman
In a suit seeking Medicaid benefits, an injunction preventing defendant-Department of Public Welfare from denying benefits is affirmed where: 1) equitable relief was appropriate where plaintiff would be barred by the Eleventh Amendment from seeking monetary damages from the state; 2) plaintiff was not required to exhaust his state-level administrative remedies before seeking federal relief; and 3) a non-revocable, non-transferable annuity purchased by plaintiff's wife did not fit the statutory definition of an "available resource" for purposes of calculating Medicaid eligibility.

[10/23] People v. Slattery
Sentence of time in state prison and payment of restitution to the hospital that treated defendant's mother, for elder abuse, is stricken where the hospital is not a direct victim of the offense, as required by section 1202.4(k)(2).

[09/30] Wood v. Jamison
In a malpractice action brought by the trustee of 78-year old decedent for defendant-attorney's role in performing legal services for client who convinced decedent that he was her nephew, judgment for damages, attorney's fees and costs based on legal malpractice, breach of fiduciary duty and financial abuse of an elder is affirmed where: 1) defendant failed to advise decedent of a conflict of interest; 2) defendant failed to advise decedent the investment was not appropriate for her, or at least to refer her to an independent investment advisor; and 3) defendant obtained an undisclosed profit from the transaction.

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Injury & Tort Law

[12/02] Brumfield v. Hollins
In a 42 U.S.C. 1983 suit brought by survivors of a man who hung himself while being held in a county jail, summary judgment for individual defendants on qualified-immunity grounds, and directed verdict in favor of defendant-county and individual defendants in their official capacity, are affirmed where: 1) defendant-sheriff was not subject to liability on theories of failure to promulgate policies on medical care or failure to supervise; 2) expert medical testimony was reasonably excluded; and 3) defendant-county was not liable as a municipality on either policy or deliberate-indifference theories.

[12/02] Greystone Homes, Inc. v. Midtec, Inc.
In an action brought by plaintiff-home builder against defendant-manufacturer for damage caused by plumbing fittings manufactured by defendant, summary judgment for defendant is reversed and remanded where: 1) a builder may recover from a product manufacturer for economic losses caused by the manufacturer's violation of the standards set forth in the Right to Repair Act through an equitable indemnity action; but 2) a builder may not recover for these losses through a direct negligence claim against the manufacturer.

[12/02] Java Oil Ltd. v. Sullivan
In a case brought by plaintiff-corporation pursuant to the Uniform Foreign Money-Judgments Recognition Act (UFMJRA) against attorney who represented client in a personal injury claim, judgment against attorney is affirmed over claims of error that the attorney fee awards entered by a court in Gibraltar: 1) constituted a penalty; 2) violated state public policy; and 3) should not have been recognized.

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Professional Malpractice

[11/28] Estate of Storm v. Northwest Iowa Hosp. Corp.
In a negligence case brought by the estate of a stillborn baby, the estate's interlocutory appeal is dismissed for lack of jurisdiction as plaintiff failed to timely file the requisite application for permission to appeal in the circuit court, or the equivalent.

[11/28] OFS Fitel, LLC v. Epstein, Becker and Green, P.C.
In an attorney negligence case, district court's final judgment of dismissal is affirmed in part and reversed in part where: 1) jurisdiction did exist over the appeal; 2) the undisputed facts showed plaintiff had substantial justification for its conduct as to its expert report, that the record did not support the district court's willful-delay determination as to that report, and thus the district court abused its discretion in excluding witness' expert testimony; and 3) the district court's choice of sanction was within its range of options under Rule 37(d) and 37(b)(2)(C) given its finding of a complete and willful failure to comply with defendant's Discovery Request.

[11/21] US v. Armstrong
Convictions and sentences of multiple defendants for offenses relating to a scheme to dispense certain controlled substances in violation of the Controlled Substances Act (CSA) are affirmed in part and reversed in part where: 1) expert testimony was not required to establish criminal violation of the CSA on the facts of the case; 2) defendant-registered nurse could be held liable for aiding and abetting under the CSA, even though she was not registered to dispense controlled substances; 3) aiding and abetting convictions could not stand on the CSA counts for which the alleged principal had been acquitted; 4) the jury charge was a correct statement of law; 5) evidence of tax evasion as a motive for under-reporting income was properly admitted; 6) there was sufficient evidence to support a money-laundering conviction; and 7) defendant-physician's sentence was reasonable.

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