MVA Litigation

            Several opinions issued by the U.S. Supreme Court during the past few years have made it more difficult for plaintiffs to obtain class certification.  Despite the hurdles erected by the Supreme Court’s recent opinion in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011) which has been seen to raise the bar for establishing the commonality necessary to obtain class certification, and Comcast Corp. v. Behrend, 569 U.S. ___, 133 S. Ct. 1426 (2013) which addressed the class certification predominance requirement, cases like In re: Whirlpool Corp. Front-Loading Washer Products ...

            In our last post, we discussed proposed amendments to the Federal Rules of Civil Procedure recently published for comment by the Judicial Conference Advisory Committee.  Two years ago, I sat on a similar advisory committee for the U.S. District Court for the Western District of North Carolina with the mission to devise a set of local patent rules to enhance the Rules of Civil Procedure and guide parties through the unique aspects of patent litigation in our District.  Since 2001, Federal District Courts around the country have continued to establish local patent rules.  Local patent ...

            The costs that parties incur in the broils of litigation have been on the front burner in recent years, with the temperature rising. In 2010, the Judicial Conference Advisory Committee on Civil Rules sponsored a Conference on Civil Litigation at the Duke University School of Law (the “Duke Conference”) to address possible solutions for reducing the costs of civil litigation, particularly with respect to discovery.  We also have seen many reported cases over the past few years that have attempted to strike a balance between the obligations to preserve and produce information ...

            The viability of class arbitration waivers as a means for companies to limit their exposure to class actions continues to be tested, including in the employment arena.  One of the first cases to probe the enforceability of class arbitration waivers in employment agreements after AT&T Mobility v. Concepcion, 131 S.Ct. 1740 (2011) was Raniere, et al. v. Citigroup Inc. filed in the Second Circuit.  Raniere, et al. v. Citigroup Inc., 827 F. Supp. 2d 294 (S.D.N.Y. 2011) was decided by the District Court on November 22, 2011 and appealed to the Second Circuit Court of Appeals on December 19 ...

            The U.S. Supreme Court’s decision in AT&T Mobility v. Concepcion, 131 S.Ct. 1740 (2011) has been the cornerstone of recent jurisprudence validating the use of class arbitration waivers in arbitration agreements to insulate companies from exposure to class action litigation.  Concepcion also has served to bolster the overall strength of arbitration agreements and to illuminate the scope of the preemptive power of the Federal Arbitration Act (“FAA”).  The recent decision by the Ninth Circuit Court of Appeals in Mortensen v. Bresnan Comm’n, LLC, No. 11-35823, 2013 U.S. App ...

            Attorneys practicing under the Federal Rules of Civil Procedure are very familiar with Rule 11, which requires that they sign all papers submitted to a federal court and subjects them to possible sanctions for filing frivolous, harassing or baseless lawsuits and motions.  The U.S. Congress is currently considering the Lawsuit Abuse Reduction Act of 2013 which aims to “amend Rule 11 of the Federal Rules of Civil Procedure to improve attorney accountability, and for other purposes,” those other purposes being to mandate and increase the sanctions facing attorneys for Rule 11 ...

            The Supreme Court’s October 2012 Term could rightly be named “The Year of the Class Action.”  The High Court received many petitions for review and ultimately issued more than five decisions that tackled issues impacting the landscape of class action practice from questions regarding federal jurisdiction under the Class Action Fairness Act of 2005 to class certification requirements in fraud-on-the-market securities class actions.  Two of the Court’s final class action decisions addressed the impact of arbitration agreements on class actions and class arbitration ...

            When the law imposes personal liability on an attorney for actions connected with the representation of a client, it is worth noting and bringing to all of our attention.  Under North Carolina law, if a state employee is injured by a third party and recovers damages from the third party, the State Health Plan for Teachers and State Employees (the “State Health Plan”) has the right to reimbursement for the medical expenses it has covered due to the injury.  In the first North Carolina appellate case to review the statute that gives the State Health Plan this right, The State Health Plan for ...

            In our November, 2012 series, “Once Around the Dance Floor With a Public Injunction, the Vindication of State Rights and AT&T Mobility v. Concepcion,” we discussed the potential impact of the impending Ninth Circuit Court of Appeals en banc review of Kilgore v. Keybank Nat’l Ass’n, No. 3:08-CV-02958-THE (N.D.Cal.). (See posts here, here, and here). In the initial appellate review of Kilgore, a Ninth Circuit three-judge panel held that California’s Broughton-Cruz rule that prohibits the arbitration of public injunction claims was preempted by the Federal Arbitration ...

            The Fourth Circuit Court of Appeals recently issued a decision placing the AT&T Mobility, LLC v. Concepcion, 131 S.Ct. 1740 (2011) stamp of approval on class arbitration waivers in this Circuit.  In Muriithi v. Shuttle Express, Inc., No. 11-1445, 2013 U.S. App. LEXIS 6464 (4th Cir. Apr. 1, 2013), the Fourth Circuit took on several issues surrounding class arbitration waivers that have been the source of disagreement among lower courts since Concepcion.  The Shuttle Express plaintiff was a shuttle driver for defendant Shuttle Express, a company that provides transportation for ...