MVA Litigation

            This year we have seen state and federal courts issue opinion after opinion ordering sanctions against parties, and sometimes their counsel, for failing to adequately preserve electronically stored information relevant to litigation.  I moderated a discussion at the November 2012 Network of Trial Law Firms Litigation Management CLE seminar regarding critical issues that are keeping in-house counsel awake at night – concerns regarding discovery sanctions issued against in-house and outside counsel were high up on the list, coupled with concerns about the spiraling costs of ...

            In the digital age where the internet permeates every aspect of our lives and commerce, the courts are continually called upon to demarcate where and how communications and intellectual property laws apply to the services provided by websites and internet service providers.  Many internet-based companies find themselves facing potential liability based upon their legitimate business activities due to the unfortunate attempts by users of their services to thwart the intellectually property rights of others.  The U.S. District Court for the Western District of North Carolina is ...

This year we have followed significant developments affecting class action litigation and the force of arbitration agreements.  Many of these developments can be traced to the U.S. Supreme Court’s April 2011 decision regarding class arbitration waivers in AT&T Mobility LLC v. Concepcion, 131 S.Ct. 1740 (2011), while others stem from broader issues related to requirements for certification of class actions, federal/state law preemption, and the viability of arbitration as an alternative forum for dispute resolution.  We have explored the enforceability of class arbitration ...

           Kilgore v. Keybank Nat'l Ass'n, No. 3:08-CV-02958-THE (N.D.Cal.) probes many questions as we already have discussed in our first and second posts, which you can read here and here.  In concluding our discussion, let us consider whether California’s Broughton-Cruz rule should be treated differently from other rules which categorically prohibit the arbitration of claims because the interests at stake in a case seeking public injunctive relief exceed the private interests of the parties to the arbitration agreement?  The California courts took the position that claims seeking ...

            In this post, we will continue our discussion regarding Kilgore v. Keybank Nat'l Ass'n, No. 3:08-CV-02958-THE (N.D.Cal.), which soon will be reheard by the Ninth Circuit Court of Appeals en banc.  Kilgore explores the impact of the U.S. Supreme Court’s decision in AT&T Mobility LLC v. Concepcion, 131 S.Ct. 1740 (2011) on the validity of arbitration agreements in cases seeking public injunctive relief when there is a state rule that prohibits the arbitration of such claims.  You can read the first part of our discussion here.   

            The Kilgore plaintiff argues in many respects that ...

            “[T]he sometimes delicate and precarious dance between state law and federal law” once again will be performed by the Ninth Circuit Court of Appeals in its en banc review of Kilgore v. Keybank Nat'l Ass'n, No. 3:08-CV-02958-THE (N.D.Cal.).  Kilgore presents another opportunity to define the reach and limitations of the U.S. Supreme Court’s decision in AT&T Mobility LLC v. Concepcion, 131 S.Ct. 1740 (2011), challenging long-standing state and federal policies regarding arbitration and probing the breadth of the preemptive power inherent in the Federal Arbitration Act ...

            The U.S. Supreme Court’s April, 2011 decision in AT&T Mobility LLC v. Concepcion, 131 S.Ct. 1740 (2011) marked a significant change in the class action landscape with its validation of class arbitration waivers pursuant to the Federal Arbitration Act (“FAA”), despite state laws which previously held such waivers unconscionable and unenforceable.  Post-Concepcion, an arbitration clause that requires the arbitration of all disputes between parties and precludes any class or representative actions could potentially safeguard defendants against costly and ...

            Can it be that easy?  Can hundreds of plaintiffs avoid removal of their state actions to federal court simply by dividing their identical claims into two or more complaints with fewer than 100 plaintiffs on each complaint?  So far, two federal circuit courts of appeals– the Seventh Circuit and the Ninth Circuit - have answered “yes,” reasoning that this is precisely what the Class Action Fairness Act of 2005 (“CAFA”) permits in the provisions which circumscribe the removal of state mass actions.  Pointing to the Congressional purposes for enacting CAFA, corporate defendants ...

            As a defendant in a state class action, you exercise your right under the Class Action Fairness Act of 2005 (“CAFA”) to remove the case to federal court.  You are facing a putative class action with potentially thousands of class members, and your experts have established by a preponderance of the evidence that the aggregate damages of the class is greater than the $5 million threshold for removal under CAFA.  The federal court, however, remands your case to state court because the plaintiff filed a stipulation along with his complaint which states that he will not seek aggregate ...

          Defendants in state class actions will be interested in this three-part blog series in which we will examine two cases involving the Class Action Fairness Act of 2005 (“CAFA”) that are under consideration by the U.S. Supreme Court: Standard Fire Insurance Co. v. Knowles (S.Ct. No. 11-1450) and Bristol-Myers Squibb Co., et al. v. Anglin (S.Ct. No. 12-147).  Congress passed CAFA, in part, to rectify abuses of the class action process by State and local courts, including demonstrated biases against out-of-state defendants.  See 190 P.L. 2, § 2(a)(4), (b).  CAFA provides that a ...