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2018

New Guidance on Attaching Documents to Motion to Dismiss
By Kelso L. Anderson – December 7, 2018
Court limits use of documents outside of pleadings for dismissal of securities claim.

Attorneys Must Self-Report Errors to Current Clients
By C. Thea Pitzen – November 29, 2018
Lawyers have a duty to disclose a material error to current, but not former, clients.

Do “Costs” Equal “Fees” Under Rule 41(d)? It Depends on the Court
By Anthony R. McClure – November 13, 2018
Second Circuit chooses sides in circuit split over attorney fees after voluntary dismissal.

Decision Vacating DOL’s Fiduciary Rule Creates Circuit Split
By Martha L. Kohlstrand – November 7, 2018
Appellate courts divide over whether the Department of Labor exceeded power to regulate investment advisors.

Privilege Waived for Email Copied to Unrepresented Third Party
By Peter J. Murphy – November 1, 2018
Client communication with unrepresented contractor is not protected by common interest.

ABA Says Social Media May Waive Confidentiality
By Benjamin E. Long – October 26, 2018
Former clients may have “generally known” information used against them.

Attorneys Permitted to Ghostwrite Pleadings for Pro Se Litigants
By Martha L. Kohlstrand – October 17, 2018
Ethics opinion permits ghostwriting without disclosing assistance to court or opponent.

Calls for Transparency Loom Over Increase in Litigation Funding
By Onika K. Williams – October 11, 2018
Rise in use of third-party litigation funding provokes disclosure requirement trend.

Poll of Potential Jurors Results in Six-Figure Sanction
By Geoff A. Gannaway – October 3, 2018
Lawyer lacks candor in response to claim, court holds polling attorney tried to woo jurors.

Court Clarifies Duty to Provide Entire Client File on Termination
By Catherine M. Chiccine – September 28, 2018
Ethics rule requires attorneys to provide more than end product to former clients.

The Genius of Gratitude
By Joseph P. Beckman – September 18, 2018
The third installment of "Seeking Paths to Lawyer Well-Being."

Former Partner’s Representation Disqualifies Law Firm
By Andrew J. Kennedy – September 13, 2018
Possible knowledge of former client’s finances and strategy dooms representation.

Supreme Court Holds ALJ Appointment Procedure at SEC Unconstitutional
By Erik A. Christiansen – September 6, 2018
Circuit split resolved, impacting all federal agencies.

Careful Pleading Key after Unprecedented Preemption Ruling
By C. Thea Pitzen – August 28, 2018
Express preemption in hybrid device case based on nature of plaintiffs’ alleged injuries.

New Guidance for Privilege Analysis
By Josephine M. Bahn – August 24, 2018
Court orders production of internal corporate emails, articulates rules.

Electronic Data Stored Abroad Now Subject to Federal Seizure
By Kristen L. Burge – August 16, 2018
CLOUD Act intended to balance effective law enforcement and personal data privacy.

Alleged Failure to Monitor Discovery Leads to Malpractice Suit
By Onika K. Williams – August 7, 2018
Law firm unable to shake malpractice claim for not preventing spoliation.

Failure to File Surreply Leads to Waiver on Appeal
By Matthew S. Mulqueen – August 1, 2018
Appellate court cites trial court’s local rules in decision.

Attorney Misrepresentations Result in Revival of Dismissed Claims
By Amy Mattson – July 27, 2018
Hundreds of age bias claims reinstated after court finds lawyers’ letters misled clients.

Joint Representation Requires Pre-Engagement Disclosures
By Candice A. Garcia-Rodrigo – July 20, 2018
Clients must be informed of implications of representation even where no conflict exists.

A “CC” or “BCC” Between Client and Adversary Can Trigger Privilege and Ethics Risks
By Kelso L. Anderson – July 17, 2018
Ethics opinions offer best practices for electronic communications with clients.

Consolidated Cases Treated Individually for Purposes of Appeal
By Stephen Carr – July 11, 2018
A family feud leads to a decision that a final judgment is not required for the appeal of individual cases.

Sexual Orientation Discrimination Claim Actionable Under Title VII
By Catherine M. Chiccine – July 2, 2018
En banc Second Circuit ruling widens circuit split.

New Trigger for Determining Removal Deadline
By Geoff A. Gannaway – June 27, 2018
Fifth Circuit extends deadline in cases where basis for removal arises during deposition.

Social Media May Waive Confidentiality Says ABA
By Benjamin E. Long – June 14, 2018
Former clients may have “generally known” information used against them.

Guidelines Emerge with Rise in E-Discovery of Employee Devices
By Andrew J. Kennedy – June 5, 2018
The Sedona Conference provides principles for companies grappling with BYOD.

Appellate Review Allowed Despite Failure to Preserve Issue Below
By C. Thea Pitzen – May 30, 2018
Appellate court charitably distinguishes inadvertent forfeiture from intentional waiver.

Plaintiff’s Testimony Too Incredible to Defeat Summary Judgment
By Amy Mattson – May 25, 2018
Rare circumstances, irreconcilable contradictions lead to credibility determination.

Court Permits PowerPoint Use During Closing
By Josephine M. Bahn – May 22, 2018
Counsel may close with summary slides, if accurate.

Joint Client May Compel Disclosure of Privileged Documents
By Matthew S. Mulqueen – May 14, 2018
Objection of former joint client does not prevent production.

Joint Defense Rule Shrouds Information Shared in Common Interest
By Martha L. Kohlstrand – May 11, 2018
Common interest doctrine acts as cloak preventing waiver of privilege.

Acts Within Policy Period May Not Be Covered
By Benjamin E. Long – May 3, 2018
Broad reading of prior exclusion clause results in coverage denial.

Court Compels Redacted Information as Non-Responsive
By Catherine M. Chiccine – April 20, 2018
Extensive unilateral redaction of documents is not justified.

Seeking Paths to Lawyer Well-Being
By Joseph P. Beckman – April 17, 2018
The focus on health and resilience for lawyers begins with a look in the mirror.

Cash or Bitcoin? Ethics Board Approves Technology as Fund Source
By Josephine M. Bahn – April 10, 2018
Bitcoin acceptable, but beware of associated requirements.

Mass Filing of Frivolous Lawsuits Leads to Significant Sanction
By Kelso L. Anderson – April 6, 2018
A federal district court imposed a fine of $9.1 million against the Florida firms.

Appearance-of-Impropriety Test Replaced with Objective Analysis Standard
By Amy Mattson – April 3, 2018
The “appearance of impropriety” and its perceived conflict is not sufficient under Model Rule 1.9.

Retract Your Claws! Privilege Waived Despite Clawback Agreement
By Candice A. Garcia-Rodrigo – March 30, 2018
Clawback agreement will not prevent waiver of privilege from careless document production.

Court Order Sent to Spam Folder Costs Client Appeal
By Stephen Carr – March 26, 2018
Setting the filtered emails to delete automatically resulted in a failure to review.

Seventh Circuit Reverses Itself, Resolves Circuit Split
By Katerina E. Milenkovski – March 20, 2018
Proximate cause, not "but-for" test, is required for False Claims Act recovery.

Trend in Medical Marijuana Suits Favors Employees
By C. Thea Pitzen – March 15, 2018
Employers walk a fine line between new laws and existing obligations.

Monetary Offer for Witness Testimony Triggers Suspension
By Onika K. Williams – March 13, 2018
Public reprimand not sufficient for deliberate act.

Court Expands Use of U.S. Discovery for Foreign Proceedings
By Andrew J. Kennedy – March 8, 2018
Discovery is not limited by the type of relief sought or to a particular foreign action.

Civil False Claims Require New Materiality Standard
By Erik A. Christiansen – March 7, 2018
New criteria may limit future cases and recoverable damages.

Knowledge of False Label Does Not Flush Standing for Injunction
By Geoff A. Gannaway – February 6, 2018
Injunctive relief promotes reliance on future advertising.

Foreign Online Sales Extends Personal Jurisdiction Across the Atlantic
By Andrew J. Kennedy – February 6, 2018
Decision opens door to potential deluge of website based personal jurisdiction claims.

Attorney-Client Arbitration Agreement Controlled by Federal Law
By Benjamin E. Long – February 5, 2018
FAA controls in showdown with Rules of Professional Conduct.

Harold and Kumar Don’t Get Fired: Every Employee May Get Stoned
By Adam E. Lyons – February 5, 2018
States may prohibit termination of medical marijuana users despite federal law.

Court Expands Ethical Duties for Handling Inadvertent Disclosures
By Josephine Bahn – January 24, 2018
Duties now extend to information received from the attorney’s own client.

Magistrate May Not Dismiss Without Consent of Unserved Defendant
By Candice A. Garcia-Rodrigo – January 22, 2018
Posner, in one of the last dissents, writes, “A bigger waste of time … is thus hard to imagine.”

Off-Duty Medical Marijuana Use Not Grounds to Rescind Hire
By Josephine Bahn – January 17, 2018
Beware when attempting to change an employment offer due to off-duty medical marijuana use.

Enhanced Ethical Obligations for Virtual Law Practices
By Amy Mattson – January 16, 2018
The trend is to permit virtual legal practices with extra ethical precautions.

Privilege Protects Counsel’s Redacted Coverage Analysis
By Adam E. Lyons – January 12, 2018
Insurer not entitled to compel disclosure of coverage analysis from insured’s counsel.

Court Disqualifies Lawyers Found to be Necessary Witnesses
By Christina M. Jordan – January 11, 2018
Trial counsel were necessary witnesses to determine contract existence.

Client Intake Call Does Not Disqualify Conflicted Counsel
By Matthew S. Mulqueen – January 9, 2018
Attorneys should be familiar with local rules when interacting with potential clients.

SEC Issues Warning on Token and Digital Currency Use
By C. Thea Pitzen – January 4, 2018
Sales of tokens will be subject to heightened scrutiny.

Ninth Circuit Splits from Others in Tolling Deadline for Class Action Appeals
By Anthony R. McClure – January 3, 2018
An appeal filed after the Rule 23 deadline may be timely where the plaintiff “acts diligently.”

2017

Virtual Law Offices Create Ethical Concerns
By Martha L. Kohlstrand – December 27, 2017
Be acutely aware of the ethical issues at play, especially those related to technological competence.

Federal Circuit Sets New Venue Test
By Martha L. Kohlstrand – December 19, 2017
Now a remote employee's place of residence alone is not sufficient to establish patent venue.

Attorney Fees Not Recoverable Costs under FRAP 39
By Catherine M. Chiccine – December 12, 2017
Be sure to request attorney fees and costs separately.

Tort Damages Caps Violate Equal Protection
By Stephen Carr – November 21, 2017
Med-mal caps ignoring the severity of the injury serve no rational purpose.

Cloudy with a Chance of Sanctions
By Geoff A. Gannaway – November 17, 2017
Court troubled by defendant’s delays, threats, and obfuscation of ESI production.

New Test Replaces "First Use" in Trademark Disputes
By Kristen L. Burge – November 7, 2017
Business realities—not first use—will determine the owners of unregistered trademarks.

New ABA Guidance on Electronic Client Communications
By Onika K. Williams – October 30, 2017
What constitutes reasonable efforts in protecting client information?

Ninth Circuit Applies Heightened Pleading for Securities Fraud
By Erin Louise Palmer – October 24, 2017
Supreme Court’s Omnicare holding extended to Section 10(b) and Rule 10b-5 claims.

Challenge Fails Seeking to Ban Nonlawyer Investment in Law Firms
By Candice A. Garcia-Rodrigo – October 20, 2017
Federal court finds either state bar advisory opinion or state court action “preferable.”

Can Attorneys Solicit Clients Via Text Message?
By Martha L. Kohlstrand – October 19, 2017
Decisions show trend permitting attorney text message advertising.

Where Does Article III Standing Stand Since Spokeo?
By Jamison Barkley – October 18, 2017
Circuit split reconcilable and increase in state court class actions likely.

Confusion over Preliminary Injunction Standard Clarified, but Not Settled
By Kelso L. Anderson – September 26, 2017
Third Circuit reasons only two of four elements dispositive.

No Attorney-Client Privilege for Communications with PR Firm
By Andrew J. Kennedy – September 19, 2017
Some client-PR firm communications may be privileged, however.

Attorney’s Blunder Results in Client’s Detainment for Deportation
By Catherine M. Chiccine – September 12, 2017
Bungling details early in a case can cause irreparable consequences.

Defense Costs May Erode Insurance Policy Limits
By C. Thea Pitzen – September 5, 2017
Careful review of policies and reservations of rights letters is critical.

New York State Bar Committee Updates Social Media Guidelines
By Katerina E. Milenkovski – August 28, 2017
National survey summarizes ethical rulings related to social media use by attorneys.

SEC Entitled to Forfeiture of Lawyer's $5 Million Loan from Client
By Kristen L. Burge – August 23, 2017
Relief defendant must show valid claim to funds to avoid enforcement forfeiture.

Arbitration Clause Waiving Consumer Rights Declared Unenforceable
By Amy Mattson – August 16, 2017
Consumer agreements that prohibit public injunctive relief violate public policy.

Summary Judgment Granted after Expert Is Conflicted Out of Case
By Onika K. Williams – August 10, 2017
Court properly denied continuance preventing replacement of conflicted expert.

Six Years of Litigating Lost for Failing to Confirm LLC's Citizenship
By Stephen Carr – August 4, 2017
Sanction of $500K reversed notwithstanding lack of diligence.

ABA Provides Ethical Advice to Protect Electronic Communication
By Matthew S. Mulqueen – August 1, 2017
Lawyers should engage in fact-based assessments to determine what efforts are reasonable.

New Pro Hac Vice Rule Increases Scrutiny of Non-Resident Lawyers
By Christina M. Jordan – July 25, 2017
Rule limits number of appearances and allows trial court to examine non-resident lawyer.

Crime-Fraud Exception to Privilege Requires Misuse of Advice
By Connor D. Jackson – July 17, 2017
Work-product protection upheld where there was no act in furtherance of a crime.

Administrative Feasibility Rejected in Certifying Class
By Candice A. Garcia-Rodrigo – July 7, 2017
Growing circuit court split confuses appropriate time to address element.

Insight into Opposing Party’s Business Is a Disqualifier
By Lauren M. Gregory – June 28, 2017
Past representation will bar involvement in "substantially related" case.

Pushing the Limits on Cross-Examination
By Joseph P. Beckman – June 21, 2017
Sanctions reversed despite repeated sustained objections regarding mental history.

Boilerplate Discovery Objections May Result in Waiver
By Erin Louise Palmer – June 14, 2017
Be sure your objections comply with specificity required by amended rules.

Court Compels Arbitration Based on Email Exchange Between Counsel
By Onika K. Williams – June 8, 2017
Court finds arbitration agreement from attorneys' emails containing essential terms.

Courts Issue Warning Call on Insurance Claim Limitations Period
By Catherine M. Chiccine – May 31, 2017
Rulings serve as harsh reminder to pay heed to statutes of limitation and contract clauses.

Post-Judgment Tender Cannot Trigger Unaccepted Rule 68 Offer
By Matthew S. Mulqueen – May 19, 2017
Opinion joins growing body of cases interpreting recent Supreme Court decision.

Large, Substantive Results from Small, Procedural Decisions
By Adam E. Lyons – May 12, 2017
Choice of forum to resolve a discovery dispute may preclude effective appeal.

Appeals Court Won’t Abstain in Battle Between Bishops
By Andrew J. Kennedy – May 9, 2017
Abstention does not apply to ecclesiastical dispute.

Lawyers Sanctioned for Unilaterally Terminating Deposition
By Carl A. Aveni – May 5, 2017
Ongoing relevancy objections no basis for halting proceedings, even if questions aimed at separate case.

Reduction in Price for Company Facing Litigation Is Discoverable
By Stephen Carr – April 28, 2017
Arms-length negotiations involving third parties can become subject to discovery.

Proposed ABA Model Rule Changes Address Social Media Advertising
By Amy Mattson – April 18, 2017
Advertising rule revisions aim to reduce ethical risks of online communications.

Court Affirms Parental Rights of Statutory Rapist
By Erin Louise Palmer – April 13, 2017
Statutory rapist can continue to seek visitation with child.

Prosecutor’s Undisclosed Relationship Leads to Ethics Sanctions
By Kelso L. Anderson – April 10, 2017
AUSA’s relationship with FBI agent violates misconduct and conflict of interest rules.

Broad Exclusion Won’t Save Insurer Offering Illusory Coverage
By Stephen Carr – April 5, 2017
Decision refuses to apply prior-knowledge exclusion for claims based on past wrongful acts.

Federal Court Deems CFPB to be “Unconstitutionally Structured”
By Onika K. Williams – March 30, 2017
D.C. Circuit gives president power to fire CFPB director, but says agency can still operate.

Supreme Court Dismisses Bait-and-Switch Between Petition and Brief
By Joseph Laizure – March 29, 2017
Appeals dismissed when merits brief argued different issue than petition of certiorari.

Are You Covered When Multiple Perils Cause the Loss?
By Sara E. Costello – March 22, 2017
Florida Supreme Court resolves insurance coverage split.

Splitting a Referral Fee? Now, You Must Hold It in Trust
By Andrew J. Kennedy – March 17, 2017
New formal opinion enhances protection to referring attorneys.

Dispute Period in Law Firm Retainer Agreements in Doubt
By Christina M. Jordan – March 13, 2017
Clause in retainer agreement providing 15-day billing entry objection found unenforceable.

Court Refuses to Defer to Arbiter Who Exceeded Power
By Candice A. Garcia-Rodrigo – March 7, 2017
Arbitrator exceeds authority interpreting silence as ambiguity.

Attorneys’ Online Comments Can Lead to Positional Conflicts
By Amy Mattson – March 2, 2017
D.C. ethics committee urges caution when expressing views on social media.

Rule 26(b)(1) Proportionality Requirement No Paper Tiger
By Jamison L. Barkley – February 27, 2017
Focus on proportionality and forget “reasonably calculated,” court says.

Court Rejects Black Letter Numerical Limit on Interrogatories
By Theresa A. Vitello – February 21, 2017
Court adopts “related question approach” in requiring party to answer discrete subparts.

Automatic Disbarment: A Sobering Reality for Convicted Attorneys
By Kristen L. Burge – February 17, 2017
DWI felony conviction in another jurisdiction triggers instant disbarment.

Court Threatens Sanctions Against Attorneys for Flimsy MDL Suits
By Andrew J. Kennedy – February 10, 2017
Counsel must advise clients regarding weak cases.

Judging Without Being Sworn In Can Jeopardize Bar License
By Kathy Milenkovski – February 6, 2017
Law clerk cannot act as judge without running afoul of ethical rules.

Attorney-Client Privilege Does Not Apply to Former Employees
By Carl A. Aveni – January 31, 2017
Lawyer's interviews with former employees are fully discoverable under new bright-line ruling.

The Age of Detailed Patent Pleadings
By Adam E. Lyons – January 27, 2017
Federal circuit decision applies Iqbal to patent complaints.

Ascertainability Not Required in 23(b)(2) Class Action, Says Court
By Catherine M. Chiccine – January 20, 2017
Trend continues as Sixth Circuit reaches same conclusion as First, Third, and Tenth.

Trademark Trial and Appeal Board Enters Twenty-First Century
By Connor D. Jackson – January 16, 2017
Rule amendments streamline proceedings, but some needed changes remain unaddressed.

Procedural Violations Cannot Result in Loss of Right to Jury Trial
By Lauren M. Gregory – January 9, 2017
Holding bench trial not appropriate sanction for failing to file pretrial disclosures.

Courts May Consider Foreign Law Declarations on Motions to Dismiss
By Matthew S. Mulqueen – January 5, 2017
Federal court relies on plain language of Rule 44.1 to resolve issue of first impression.

2016

Court Cannot Decide Arbitrability of Class Claim—Arbitrator Must
By Candice A. Garcia-Rodrigo - December 30, 2016
Arbitration agreement informs court who decides if class arbitration is available.

Medicare Advantage Can Sue Lawyers for Reimbursement
By Caitlin Haney – December 21, 2016
Medicare Secondary Payer Act creates private cause of action against law firms.

Circuit Split Widens on Application of SEC Statute of Limitations
By Erin Louise Palmer – December 15, 2016
Tenth Circuit says injunction and disgorgement are not penalties subject to time bar.

Harassment and Discrimination Now Violate ABA Model Rules
By Amy Mattson – December 6, 2016
Amended rule prohibits lawyer harassment and discrimination.

Class Action Waivers Survive NLRB's Repeat Challenge
By Kristen L. Burge – November 28, 2016
Court continues trend on waiver validity and widens circuit split.

Ethics Board Advises Attorneys to Avoid Medical Marijuana Clients
By Stephen Carr – November 21, 2016
Decision widens jurisdictional split and highlights conflict over marijuana law.

Bad Faith Deletion of Emails Warrants Punitive Sanctions
By Joseph Laizure – November 17, 2016
Decision emphasizes severity of punishment possible when senior managers destroy evidence.

Attorney-Client Privilege Protects Communications with Law Firm GC
By Theresa A. Vitello – November 11, 2016
Client cannot obtain communications between attorneys and law firm's general counsel.

Deletion of Emails Leads to Sanctions
By Matthew S. Mulqueen – November 3, 2016
Terminating sanctions reversed in favor of a prohibition on the presentation of evidence.

Circuit Split Widens on Recovering Attorney Fees as Costs
By Carl A. Aveni – October 25, 2016
Plaintiffs may be required to pay attorneys' fees from prior action when refiling.

Million Dollar Sanction Overturned as Unprecedented, Punitive
By Connor D. Jackson – October 4, 2016
Expert's violation of smoking testimony ban insufficient to sanction counsel.

Expert Allowed to Offer Opinion Based on Undisclosed Sources
By Adam E. Lyons – September 30, 2016
Proffer of expert opinion based on private data raises strategic suggestions.

Circuit Split Widens on Nominative Use of Certification Mark
By Kelso L. Anderson – September 26, 2016
Court remands case to district court to apply elevated standard for trademark infringement.

"Super Lawyers" Beware
By Lauren M. Gregory – September 20, 2016
State ethics committee cracking down on comparative attorney advertising.

Law Firm Disqualified for Retaining and Using Privileged Email
By Daniel P. Elms – September 15, 2016
Failure to follow California procedures for determining privilege causes disqualification.

Circuit Court Adopts Bright-Line Rule for Removal under CAFA
By Kristen L. Burge – September 8, 2016
Decision follows trend and seeks to eliminate ambiguity in clock-triggering event.

High Court OKs Ethics Case Based on Paralegal's Improper Use of Facebook
By Onika K. Williams – August 31, 2016
Court finds that attorneys can be prosecuted for social media investigation tactics.

Federal Court Clarifies Discovery Rights under Revised Rule 26
By Caitlin Haney – August 25, 2016
Rule does not require parties to produce all potentially relevant information, court says.

Hearsay Evidence Should Be Weighed for Preliminary Injunctions
By Theresa A. Vitello – August 18, 2016
Court abused its discretion by not considering declarations, appellate court finds.

E-Filing Ineptitude Results in Suspension and Censure
By Matthew S. Mulqueen – August 11, 2016
Non-compliance with court orders to acquire technological proficiency leads to discipline.

Officer's Residence Decides Corporate Citizenship
By Candice A. Garcia-Rodrigo – August 4, 2016
Circuit court applies Supreme Court's nerve center test for principal place of business.

Supervisors May Be Subject to Personal Liability under FMLA
By Adam E. Lyons – July 28, 2016
Appellate court expands scope of FMLA liability to individual supervisors.

Court Declines to Expand Attorney Duty of Care to Non-Clients
By Kristin L. Jordan – October 13, 2016
Law firm has no duty of care absent intent to benefit a non-client plaintiff.

Million Dollar Sanction Overturned as Unprecedented, Punitive
By Connor D. Jackson – October 4, 2016
Expert's violation of smoking testimony ban insufficient to sanction counsel.

Expert Allowed to Offer Opinion Based on Undisclosed Sources
By Adam E. Lyons – September 30, 2016
Proffer of expert opinion based on private data raises strategic suggestions.

Circuit Split Widens on Nominative Use of Certification Mark
By Kelso L. Anderson – September 26, 2016
Court remands case to district court to apply elevated standard for trademark infringement.

"Super Lawyers" Beware
By Lauren M. Gregory – September 20, 2016
State ethics committee cracking down on comparative attorney advertising.

Law Firm Disqualified for Retaining and Using Privileged Email
By Daniel P. Elms – September 15, 2016
Failure to follow California procedures for determining privilege causes disqualification.

Circuit Court Adopts Bright-Line Rule for Removal under CAFA
By Kristen L. Burge – September 8, 2016
Decision follows trend and seeks to eliminate ambiguity in clock-triggering event.

High Court OKs Ethics Case Based on Paralegal's Improper Use of Facebook
By Onika K. Williams – August 31, 2016
Court finds that attorneys can be prosecuted for social media investigation tactics.

Federal Court Clarifies Discovery Rights under Revised Rule 26
By Caitlin Haney – August 25, 2016
Rule does not require parties to produce all potentially relevant information, court says.

Hearsay Evidence Should Be Weighed for Preliminary Injunctions
By Theresa A. Vitello – August 18, 2016
Court abused its discretion by not considering declarations, appellate court finds.

E-Filing Ineptitude Results in Suspension and Censure
By Matthew S. Mulqueen – August 11, 2016
Non-compliance with court orders to acquire technological proficiency leads to discipline.

Officer's Residence Decides Corporate Citizenship
By Candice A. Garcia-Rodrigo – August 4, 2016
Circuit court applies Supreme Court's nerve center test for principal place of business.

Supervisors May Be Subject to Personal Liability under FMLA
By Adam E. Lyons – July 28, 2016
Appellate court expands scope of FMLA liability to individual supervisors.

Judge Restricts Lawyers from Researching Jurors Online
By Carl A. Aveni – July 21, 2016
Disclose extent of research to venire or don't do it at all, judge says.

Evidence Lacking in False Claims Act Suit
By Sara E. Costello – July 12, 2016
A difference of opinion among physicians does not establish fraud.

Jury to Consider Classification of Distributors for Overtime Pay
By Erin Louise Palmer – July 5, 2016
Ruling on release of overtime is one of first impression.

Lawyer Sanctioned for Pursuing Baseless Case to Summary Judgment
By Andrew J. Kennedy – June 30, 2016
Court awards sanctions of higher attorney fees than charged.

Employer Not Required to Accommodate Medical Marijuana UseNew
By Candice A. Garcia-Rodrigo – June 24, 2016
Employer may terminate employee for use of medical marijuana though legal in the state.

Ethics Board Explains Proper Conduct under Flat-Fee Arrangements
By Katerina E. Milenkovski – June 16, 2016
Advisory opinion addresses where to keep flat fees and related issues.

No Mistrial over Juror's Facebook Connection with Victim's Sister
By Onika K. Williams – June 7, 2016
Juror's relationship with Facebook friend too attenuated to be misconduct.

Actual Innocence Unnecessary for Legal Malpractice Claim
By Caitlin Haney – May 26, 2016
Malpractice involving illegal sentence only requires post-judgment relief.

Ethics Opinion Draws Line on When Social Media Is Considered Advertising
By Catherine McLeod Chiccine – May 20, 2016
Bar association says LinkedIn pages are attorney advertising only if certain criteria met.

"Organic" Mislabeling Suit Moves Forward
By Sara E. Costello – May 13, 2016
Intentional mislabeling claim not preempted by federal statute.

Warrantless Search of Cell Phone Violates Fourth AmendmentNew
By Robert T. Denny – May 5, 2016
Police may replicate private search of phone but can go no further without a warrant.

Representation in Marijuana Industry Chilled by Ethics Rules
By Ian S. Clement – May 2, 2016
State Bar recommends amending rules to permit representation in marijuana industry.

Federal Preemption Precludes Challenge to FDA-Approved Drug
By Adam E. Lyons – April 27, 2016
Impossibility preemption precludes drug manufacturer from changing FDA-approved formulation.

New Practice Considerations under Amendments to Federal Rule 26
By Matthew S. Mulqueen – April 19, 2016
Amended federal rules now mandate that discovery be proportional to case needs.

Court Approves Firm's Representation of Competing Patent Clients
By Andrew J. Kennedy – April 11, 2016
Economically adverse interests relating to similar inventions is not unethical.

Amended Federal Rules Emphasize Early Case Assessment
By Lauren M. Gregory – April 4, 2016
Rules 4, 16, 26, and 34 accelerate discovery and may promote earlier settlement.

Attorney-Client Privilege Trumps Advice-of-Counsel Defense
By Theresa A. Vitello – March 31, 2016
Waiver of privilege is prerequisite to employee's assertion of advice-of-counsel defense.

EU and United States to Quell Uncertainty after Safe Harbor Invalidation
By Onika K. Williams – March 24, 2016
Swift action required by affected companies to comply with EU privacy laws.

Mediation Communications Inadmissible in Attorney Malpractice Suit
By Pamela Sakowicz Menaker – March 16, 2016
Privileged mediation discussions cannot be used to defend malpractice claim absent waiver.

Copyright Ruling Expands Fair Use on Social Media
By Carl A. Aveni – March 7, 2016
Copyright holders must consider fair use prior to takedown notice for online videos.

Failure to Prepare Deponent Adequately Leads to Sanctions
By Adam E. Lyons – March 2, 2016
Limiting scope of deponent's relevant knowledge is no defense for an unprepared witness.

State Bar's Advertising Rules Unconstitutional
By Candice A. Garcia-Rodrigo – February 26, 2016
Bar cannot prohibit lawyers from truthfully advertising expertise.

Independent Counsel Required for Insurers to Avoid Conflicts
By Matthew S. Mulqueen – February 22, 2016
Insurer's reservation of rights may create conflict.

New Federal Framework for ESI Spoliation Claims
By Kristen L. Burge – February 16, 2016
Amended FRCP Rule 37(e) provides a uniform standard for analyzing ESI discovery violations.

Doing Business with Clients Could Result in No Legal Fees
By Kelso L. Anderson – February 8, 2016
Agreement with client for interest in patent in lieu of legal fees violates ethics rule.

Circuit Split on Dodd-Frank's Whistleblower Protections
By Sara E. Costello – February 4, 2016
Second Circuit breaks with Fifth Circuit and concludes reporting to SEC not necessary.

Co-Employers Both Liable under the ADA
By Caitlin Haney – January 29, 2016
Staffing agencies and clients have independent obligations to disabled employees.

Attorney Fees Becoming More Common in Patent Cases
By Cynthia Ford – January 26, 2016
Court follows trend to apply "holistic" approach to award $4.1 million in attorney fees.

"Severe" Lawyer Referral Rules Needed
By Catherine McLeod Chiccine – January 20, 2016
Florida high court rejects referrals from non-lawyer-owned agencies.

Data Breach Plaintiffs Alleging Future Harm Clear Standing Hurdle
By Robert T. Denny – January 11, 2016
Increased risk of future harm and harm mitigation expenses establish Article III standing.

Discovery "Ineptitude" Costs Delta Airlines Another $3 Million
By Katerina E. Milenkovski – January 5, 2016
Court increases special master's award recommendation and rejects partner fee discount.

2015

Documents from Internal Investigation Protected by Privilege
By Daniel P. Elms - December 30, 2015
Privilege not compromised by referencing investigation in deposition or pleadings.

World's Largest Law Firm Disqualified from Case after Merger
By Ian S. Clement – December 21, 2015
The International Trade Commission found Denton's "Swiss verein" is one firm.

Appellate Court Says False Ads Must Be "Literally False"
By Pamela Sakowicz Menaker – December 11, 2015
Substantial pleading burdens imposed for asserting a false advertising claim.

Court Rejects Department of Labor Intern Test
By Theresa A. Vitello – December 3, 2015
Court adopts new primary beneficiary test.

Attorney's Minimal Deportation Warning Sufficient
By Candice A. Garcia-Rodrigo – November 25, 2015
Court approves attorney's warning that criminal plea could result in deportation.

Airplane Suits Removable under Admiralty Jurisdiction
By Onika K. Williams – November 17, 2015
Federal court equates airplane to a ship because the plane, prior to crashing, flew over the sea.

Circuit Split Creates Data Protection Uncertainty
By Kristen L. Burge – November 11, 2015
Interpreting "electronic storage" proves difficult in the face of evolving technology.

Ethics Opinion Provides Guidance for Local Counsel Representation
By Cynthia Ford – November 5, 2015
Limited local counsel representation agreements may not also curtail ethical obligations.

ABA House of Delegates Urges Change to Diversity Statute
By Carl A. Aveni – October 30, 2015
First change in 57 years would affect citizenship of unincorporated entities, such as LLCs.

Enforceable Arbitration Requirement May Not Be Worth the Fare
By Adam E. Lyons – October 27, 2015
Uber decision will likely force rethinking of arbitration agreements.

Getting a New Trial May Be Easier under One Rule Than Another
By Caitlin Haney – October 23, 2015
Discovery misconduct warrants new trial under Rule 60 but not Rule 59.

Trend of Cutting Class Action Attorney Fees Continues
By Sara E. Costello – October 19, 2015
Court strikes redacted hours and time spent on media communications and clerical tasks.

Significant Changes to Discovery and Case Management Practices
By Andrew J. Kennedy – October 14, 2015
ABA Section of Litigation's Rules Amendments Roadshow explains changes.

Courts Disagree on Federal Preemption of "Organic" Labeling
By Erin Louise Palmer – October 5, 2015
District court concludes that state consumer protection laws advance federal scheme.

Fees Incurred in Defending Fee Application Not Recoverable
By Catherine R. McLeod – September 30, 2015
SCOTUS says Bankruptcy Code does not exempt costs of fee-litigation from American Rule.

Document Retention Policy Is No Excuse for Discovery Noncompliance
By Angela Foster – September 25, 2015
"Death penalty" discovery sanctions issued for repeated contempt of discovery orders.

Red Bull Class Settlement Flies Despite Dilution of Class Recovery
By Onika K. Williams – September 18, 2015
Court approves a class action settlement with payout cap and ascertainability issues.

When Following One's Convictions Means Failing to Convict
By Katerina E. Milenkovski – September 14, 2015
Is it a problem when jurors introduce their own theories into a case?

Borrowers May Collect Attorney Fees after Preliminary Injunction
By Pamela Sakowicz Menaker – September 9, 2015
Permanent injunction not required for prevailing plaintiff to collect under California law.

Court Confirms Vicarious Liability Pleading Requirements
By Catherine R. McLeod – August 31, 2015
Employee names not mandatory as purpose of pleadings to provide defendants notice.

Cell Phone Location Records Not Protected by Fourth Amendment
By Daniel P. Elms – August 24, 2015
Defendant has no privacy right over cell phone records that do not reveal communications.

Appearance of Impropriety Insufficient For Disqualification
By Lisa R. Hasday – August 17, 2015
State supreme court holds actual conflict is necessary for attorney disqualification.

Free Speech or License to Offend?
By Lauren M. Gregory – August 11, 2015
Battle over constitutional right to trademark "disparaging" terms heats up.

"Generalized Interest" Sufficient to Intervene to Unseal Records
By Andrew J. Kennedy – August 4, 2015
Public's interest in court records is enough to allow intervention.

Court Puts In-House Counsel in Deposition Hot Seat
By Renee Choy Ohlendorf – July 30, 2015
In-house attorney ordered to disclose source of information for breach of contract claim.

Ethical Breaches Result in Firm Disqualification
By Ian S. Clement – July 27, 2015
Law firms' merger causes incurable simultaneous representation of adversaries.

Affirmative Defense Available in Hostile Environment Claims
By Caitlin Haney – July 20, 2015
Vicarious liability limited where employer has effective anti-harassment policy.

Copyright Does Not Bar Resale of Gray Market Goods
By Lauren M. Gregory – July 14, 2015
Attempt to prevent domestic resale of foreign-made goods deemed "copyright misuse."

Court Enforces Limits on Duty to Preserve Evidence
By Angela Foster – July 8, 2015
No sanctions for a nonparty that did not retain nine-year-old documents.

No Results? No Fees in Civil Rights Case
By Sara E. Costello – June 30, 2015
Fee award for post-judgment work reversed by the Sixth Circuit.

Agreement to Arbitrate Upheld after LLC Converted to Corporation
By Pamela Sakowicz Menaker – June 19, 2015
Corporate charter does not supersede prior LLC agreemen''s arbitration requirement.

Law Firm's "Dishonest" Conduct Merits Sanctions
By Onika K. Williams – June 15, 2015
Federal court sanctions firm for prosecuting baseless and time-barred claims.

Attorney-Client Privilege Does Not Apply to Risk Managers
By Daniel P. Elms – June 9, 2015
Company's discussions with risk management are unprotected by the attorney-client privilege.

To Enforce a Settlement, Jurisdiction Must Be Expressly Retained
By Theresa A. Vitello – June 3, 2015
Court resolves conflict over trial court's authority in dismissed, settled cases.

Severe Attorney Sanction Imposed For Asking Wrong Question
By Robert Denny – May 19, 2015
Court cites attorney lack of credibility justifying $1 million sanction for causing mistrial.

Energy Markets Exempted from Price Manipulation Claims
By Catherine R. McLeod – May 19, 2015
District court dismisses Commodity Exchange Act claim, citing CFTC order.

Plaintiff Must Prove Service on Motion to Vacate Default Judgment
By Erin Louise Palmer – May 12, 2015
Despite receipts, million-dollar judgment vacated after defendants deny knowledge of suit.

Delaware Rapid Arbitration Act Promises Speedy Arbitrations
By Henry R. Chalmers – May 6, 2015
If awards are not issued within 120 days, arbitrators face fee reductions.

Law Firm Mistakenly Wipes Out Security for $1.5 Billion Loan
By Andrew J. Kennedy – April 30, 2015
Court finds intent to release security interest is not required under the UCC.

Prejudicial PowerPoint Slides Lead to Verdict Reversal
By Renee Choy Ohlendorf – April 27, 2015
Superimposed text renders previously admitted photos inadmissible.

Attorney's Lien Extends to E-Discovery Database
By Lisa R. Hasday – April 22, 2015
State appellate court finds law firm had possession because it directed work.

Widely Shared Antitrust Compliance Policy Ordered Disclosed
By Joseph Callanan – April 15, 2015
Internal distribution is insufficient to protect privilege.

Court Strikes Florida Rule Preventing Advertising of Past Results
By Pamela Sakowicz Menaker – April 6, 2015
District court decision follows trend allowing attorneys to advertise past results.

Lawyers—Not Judges—May Select Their Own Juries for Trial
By Kelso L. Anderson – March 26, 2015
Standing order allows attorneys or self-represented parties to conduct voir dire.

Firm Can Prevent Discovery of In-House Advice in Malpractice Suit
By Sara E. Costello – March 19, 2015
California court finds attorney-client privilege applies to intra-firm communications.

Swindled Foreign Investors Not Protected by U.S. Fraud Law
By Teresa Rider Bult – March 9, 2015
Second Circuit dismisses foreign fraud claims under CEA; U.S. transaction is required.

HIPAA Permits State Law Actions for Breach of Confidentiality
By Robert Denny – March 2, 2015
In a negligence action against a health-care provider, HIPAA may provide standard of care.

Shareholder Loses Discrimination Claim and Ordered to Pay Fees
By Douglas E. Motzenbecker – February 20, 2015
Attorney fee award for frivolous legal arguments questioned.

Discovery Responsibilities: Separate but Not Equal
By Angela Foster – February 17, 2015
Defendant must produce archived email even if plaintiff cannot do the same.

Insurance Policy's Litigation Exclusion Bars Coverage for Sealed Litigation
By Pamela Sakowicz Menaker – February 11, 2015
Insurance coverage barred despite three year delay in serving complaint on defendants.

Growing Divide over Class Action Tolling under American Pipe
By Renee Choy Ohlendorf – February 4, 2015
Class members who opt out prior to class certification decision do not forfeit tolling.

Email Notification Insufficient under FMLA, Says District Court
By Erin Louise Palmer – January 28, 2015
Employers face uncertainty in seeking to satisfy FMLA notice provisions.

"Astronomically High" Expert Fees Stricken
By Lauren M. Gregory – January 22, 2015
Proactive measures are essential to avoid costly expert fee disputes.

Employee's Arbitration Agreement Void Due to Lack of Consideration
By Joseph Callanan – January 15, 2015
Continued at-will employment and revocable promise to arbitrate insufficient consideration.

Court Eases Requirements to Plead Securities Fraud Claims
By Andrew J. Kennedy – January 7, 2015
Fifth Circuit holds that partial company disclosures can cumulatively show causation.

2014

Shifting the Collectibility Burden for Legal Malpractice
By Lisa R. Hasday - December 31, 2014
Court places burden on defendant-attorneys to show uncollectibility of underlying judgment.

Proportionality Limits Scope of Permissible E-Discovery
By Katerina E. Milenkovski - December 24, 2014
Costs of search and production exceed benefits, court finds.

Statutory Cap on Punitive Damages Deemed Unconstitutional
By Onika K. Williams – December 19, 2014
Punitive damages cap invalidated on state constitutional grounds.

Service via Facebook Permitted as "Best Chance" of Actual Notice
By Brian Zemil – December 16, 2014
Court OKs substitute service via social media profile.

Constructive Discharge Claim Accrues When Employer Retaliates
By Daniel Elms – December 9, 2014
Employer retaliation—not employee resignation—triggers constructive discharge claim.

Court Compels Production of Privileged Documents to Shareholders
By Caitlin Haney – December 1, 2014
Allegations of wrongdoing abrogate attorney-client privilege and work product protection.

Arbiter Does Not Decide Class Arbitration Status
By Catherine R. McLeod – November 24, 2014
Third Circuit is latest to rule class arbitration is for the court to decide.

Attorney Sanctioned for Misconduct During Trial
By Angela Foster – November 19, 2014
Counsel's misrepresentation to court causes case dismissal and possible attorney fees.

Self-Service Kiosks Can Require Consumers' Zip Codes
By Teresa Rider Bult - November 13, 2014
Ninth Circuit finds collection does not violate California consumer privacy law.

Lawyer Travel for Work Enough for Personal Jurisdiction
By Robert T. Denny – November 7, 2014
Employer retaliation—not employee resignation—triggers constructive discharge claim.

Iqbal/Twombly Plausibility Pleading Spreads
By Lisa R. Hasday – November 4, 2014
State Supreme Court adopts higher pleading standard in fiduciary duty case.

Increase in Attorney Fee Awards on the Horizon
By Angela Foster – October 28, 2014
Losing parties may pay attorney fees in patent infringement cases more often.

Factual Misrepresentations Result in Claim Dismissal
By Catherine McLeod – October 24, 2014
Dismissal is proper sanction when closely fitted to objectionable conduct.

No Failure-to-Warn When Drug Label Is FDA Compliant
By Pamela Sakowicz Menaker – October 21, 2014
Failure-to-warn claim against drug company unsuccessful for post-label change injury.

Associate Suspended for Double-Crossing His Firm
By Ian S. Clement – October 16, 2014
Discipline for unethically threatening to provide and destroy evidence against firm.

Supreme Court Reaffirms Fraud-on-the-Market Theory of Reliance
By Douglas E. Motzenbecker – October 7, 2014
Defendants may challenge market efficiency to defeat class certification.

Website's Hyperlinked Forum Selection Clause Valid
By Oran F. Whiting – October 3, 2014
Evidence of notice and acceptance of terms of use are crucial to enforcement.

Lodestar Multiplier Rejected in "Routine" Divorce Case
By Theresa A. Vitello – September 30, 2014
Lack of a written agreement led to multi-million dollar fee dispute.

Website Not Liable for Anonymous Postings
By Onika K. Williams – September 24, 2014
Decision sets high bar for operator liability.

Opinion Says No to Nonlawyer Firm CEOs
By Katerina E. Milenkovski – September 15, 2014
Debate intensifies over ethics of non-lawyer professionals in law firms.

Seventh Circuit Rejects "Scandalous" Settlement
By Bethany Leigh Rabe - September 8, 2014
Judge Posner rebukes counsel for "selling out the class."

Third Time Is Not a Charm for Party Seeking Removal
By Sara E. Costello – September 4, 2014
Eighth Circuit lacked jurisdiction to review untimely removal attempt.

False Evidence Forces Law Firm Exit after $24 Million Verdict
By Caitlin Haney – August 28, 2014
Client's false testimony raises questions about appropriate remedial measures.

Rare Supreme Court Reversal for Error Correction
By Joseph Callanan – August 21, 2014
Court criticizes lower courts' resolving fact questions to grant summary judgment.

Online Privacy at Risk under Federal Statute
By Robert T. Denny – August 13, 2014
Disclosure of name and web history does not violate the Electronic Communications Privacy Act.

Internet Technology Infringes Exclusive Intellectual Property Right
By Kelso L. Anderson – August 6, 2014
Supreme Court implies Internet provider is a cable company under the Copyright Act.

Advice of Counsel Defense Leads to Waiver of Privilege
By Lauren M. Gregory – July 30, 2014
Tread carefully when agreeing to selective privilege waiver.

New York Bar Issues Social Media Guidelines
By Erin Louise Palmer – July 25, 2014
Rules seek to balance business and ethical concerns.

Misleading Discovery Response Results in New Trial
By Natasha Saggar Sheth – July 17, 2014
Extraordinary retrial motion granted two years after jury verdict.

Webpage Held Not Self-Authenticating
By Ian S. Clement – July 11, 2014
Employer retaliation—not employee resignation—triggers constructive discharge claim.

Adverse Rulings Insufficient to Show Judicial Bias
By Jannis E. Goodnow – July 8, 2014
Standard for recusal remains a high hurdle to overcome.

Widening Permissible Warrantless Home Searches
By Teresa Rider Bult – June 30, 2014
U.S. Supreme Court gives police more leeway.

Anti-SLAPP Statute Does Not Protect Law Firm Advertisements
By Sara E. Costello – June 20, 2014
Marketing falls within commercial speech exception to state anti-SLAPP law.

Arbitration Survives Contract's Expiration
By Lisa R. Hasday – June 16, 2014
Ruling reflects continued federal policy favoring arbitration.

Securities Law Does Not Shield Ponzi Schemer's Associates
By Joseph Callanan – June 10, 2014
Class actions can proceed even though only the fraudster bought a "covered security."

Caps on Non-Economic Damages Held Unconstitutional
By Pamela Sakowicz Menaker – June 2, 2014
State supreme court finds caps violate equal protection.

Unfinished Business Tips for Attorneys Exiting Firms
By Angela Foster – May 28, 2014
Firm can recover unfinished business profits from partners who left firm prior to dissolution.

Eavesdropping on Jury Panel Leads to New Trial
By Caitlin Haney – May 22, 2014
Counsel's secretive actions raise ethical concerns.

FTC Gets Green Light to Sue Merchants over Data Breaches
By Henry R. Chalmers – May 16, 2014
Motion to dismiss denied in benchmark FTC v. Wyndham Worldwide Corp. case.

A Deal is a Deal!
By Katerina Eftimoff Milenkovski – May 7, 2014
Courts reject BP's claimed interpretation of settlement agreement.

Abuse Hotline Does Not Create a Duty to Victim
By Robert T. Denny – May 1, 2014
Ruling leaves door open to suits alleging negligent aid.

Party Held Liable for Unauthorized Email Access
By Jannis E. Goodnow – April 25, 2014
Courts struggle to apply Stored Communications Act to modern email systems.

Discovery Abuse Warrants Informing Jury of Misconduct
By Ian S. Clement – April 18, 2014
Courts explore alternatives to monetary sanctions.

Securities Fraud Plaintiff Need Not Show Reliance
By Natasha Saggar Sheth – April 11, 2014
Recovery available despite agreeing to merger prior to issuance of misleading reports.

Court Abused Discretion by Not Considering Sanctions Request
By Oran F. Whiting – April 8, 2014
Even absent a formal motion, courts must address claims of vexatious conduct.

Court Weighs Procedural Safeguards for Audio Playbacks to Jury
By Renee Choy Ohlendorf – April 4, 2014
Circuits split on whether audio tapes may be replayed to jury in defendants' absence.

Limits on the Attorney-Client Privilege for Lobbyist Communications
By Bethany Leigh Rabe – March 31, 2014
Employer retaliation—not employee resignation—triggers constructive discharge claim.

Sins of a Subsidiary Corporation Visited Upon Parent
By Andrew J. Kennedy – March 21, 2014
Corporate parent's executives may not interfere with subsidiary's contract.

Beware of Conflicts in Joint Representation
By Teresa Rider Bult – March 17, 2014
In-house attorney's assurance to "protect" employee at deposition leads to malpractice claim.

Attorney-Client Privilege Passes to Acquiring Company in Merger
By Pamela Sakowicz Menaker – March 11, 2014
Parties can contract around default rule or segregate communications to avoid waiver.

District Court Remand Orders Are Difficult to Appeal
By Ian S. Clement – March 3, 2014
Circuit court reaffirms high standard for appealing a district court's remand decision.

Failure to Authenticate Email Leads to Dismissal of Case
By

 

Angela Foster – February 25, 2014
Decision highlights direct and circumstantial options for email authentication.

Admission of GPS Evidence Signals Brave New World
By Kelso L. Anderson – February 20, 2014
Eighth Circuit affirms ruling taking judicial notice of GPS technology.

Supreme Court Narrowly Defines Younger Abstention Doctrine
By Sara E. Costello – February 14, 2014
Abstention by federal courts appropriate only in exceptional circumstances.

Motion to Reconsider Remand Order Is Not Appealable
By Katerina Eftimoff Milenkovski – February 10, 2014
Ruling protects state jurisdiction over remanded cases.

Employees Can Be Liable for Data Theft Regardless of Use
By Robert T. Denny – February 5, 2014
Wrongful download is enough to state claim for misappropriating trade secrets.

No Bad Faith When Insurer Fails to Initiate Settlement
By Caitlin Haney – January 30, 2014
Absent a settlement offer within policy limits, insurers have no duty to settle.

Former Counsel Violated Ethics Rules by Informing on Client
By Joseph Callanan – January 24, 2014
Duty of confidentiality trumps whistleblower rights.

Tougher Scrutiny of Employer Payroll Cards
By Oran F. Whiting – January 17, 2014
Employers warned of stricter enforcement of laws governing payroll cards.

No Mercy for Pro Se Litigant
By Lisa R. Hasday – January 13, 2014
Court affirms $1 million default judgment for discovery abuses in defamation case.

Timely Payment of Filing Fee Required to Commence Action
By John W. Joyce – January 8, 2014
Complaint filed with insufficient filing fee does not toll statute of limitations.

Law Firms Must Monitor Emails Sent to Departed Lawyers
By Daniel Elms – December 9, 2014
Duty to protect clients' interests necessitates firms' review of emails.

2013

Civil Rights Attorneys May Be Awarded More than Their Clients
By Sara E. Costello – December 18, 2013
Case highlights the importance of preparing a clear and well-supported fee petition.

Lawyer's Duty of Loyalty to Client Trumps Loyalty to Spouse
By M. Derek Harris – December 10, 2013
Attorneys must not assist others, including spouses, if actions are adverse to a client.

Class Settlement Rejected Due to "Worthless Injunctive Relief"
By Joseph Callanan – December 2, 2013
Appeals court says Pampers' class action settlement stinks.

Text Message Sender May Face Liability for Driver's Accident
By Pamela Sakowicz Menaker – November 27, 2013
Texter who knows recipient is driving and driver's texting habits has duty not to distract.

Circuits Split on Indispensable Parties
By Angela Foster – November 21, 2013
Flexible nature of Rule 19 analysis allows abuse of discretion or de novo review.

Third-Party Documents Admissible as Business Records
By Kelso L. Anderson – November 15, 2013
Ruling reflects trend in favor of allowing third-party evidence.

Facebook Communication Leads Court to Vacate Murder Conviction
By Bethany Leigh Rabe – November 11, 2013
Court should have allowed inquiry into juror-witness Facebook contact.

Spoliation of Electronic Data Results in Severe Sanctions
By Caitlin Haney – November 5, 2013
Deletion of laptop files leads to monetary sanctions and inference of bad faith.

Class Certification's Predominance Standard Alive and Well
By Robert T. Denny – October 25, 2013
Sixth Circuit clarifies scope of recent U.S. Supreme Court ruling on class certification.

Under Dodd-Frank Act, a Whistleblower Is a Whistleblower
By John W. Joyce – October 21, 2013
Whistleblower requirements are the same under anti-retaliation and bounty provisions.

Recovering Trial Technology Costs
By Natasha Saggar Sheth – October 15, 2013
Trial presentation technology can help make a case, but the expense is a drawback.

Merchants May Have Recourse on Data Breach Liability Assessments
By Henry R. Chalmers – October 10, 2013
Payment networks may face hurdles in charging banks when merchants are hacked.

Employer Violates Labor Laws by Failing to Pay Interns
By Daniel Elms – December 9, 2014
NY District Court ignores other circuits; holds unpaid interns are employees under FLSA.

Unsigned Conflict Waiver Letter Found Enforceable
By Joseph Callanan – October 1, 2013
Client waived advance conflicts despite never signing letter.

Demonstratives Allowed in Jury Room during Deliberations
By Sean T. Carnathan – September 24, 2013
Are demonstrative exhibits helpful to the jury or misleading and unfair?

Maryland Declines to Do Away with Contributory Negligence
By Sara E. Costello – September 18, 2013
High court leaves negligence standard for the legislature to decide.

Two U.S. Supreme Court Opinions Enforce Arbitration Agreements
By M. Derek Harris – September 13, 2013
Court finds terms of parties' arbitration agreements and class action waivers binding.

Lawyers' Duty to Disclose False Evidence May Extend Indefinitely
By Angela Foster – September 10, 2013
Even after the conclusion of a proceeding, lawyers must take action.

Tort Reform Dealt a Blow in Oklahoma
By Andrew J. Kennedy – September 5, 2013
Other states watch closely as tort reform struck on constitutional grounds.

Contingent Fee Permissible When State Hires Private Counsel
By Robert T. Denny – August 30, 2013
No conflict of interest to pursue consumer protection claims for the state.

Motions in Limine Held Not Dispositive
By Jonathan B. Stepanian – August 27, 2013
Motions for summary judgment–not motions in limine–terminate claims.

Need a Lawyer? Check Your Text Messages
By Natasha Saggar Sheth – August 22, 2013
Ohio high court finds text messaging an acceptable form of attorney advertising.

Facebook Messages Admissible under Traditional Evidence Rules
By Lisa R. Hasday – August 19, 2013
State appellate court finds that messages are authentic and not hearsay.

Discovery Processing Costs Not Recoverable
By Ian S. Clement – August 14, 2013
Non-taxability of discovery expenses costs winning litigant more than $100,000.

Litigation Privilege Immunizes Lawyers from Fraud Actions
By Oran F. Whiting – August 8, 2013
Doctrine promotes zealous client advocacy.

"Private" Postings Nevertheless Discoverable
By Katerina Milenkovski – August 2, 2013
Judge orders forensic expert to review Facebook posts.

Ethical Breach by Class Counsel Does Not Defeat Certification
By John W. Joyce – July 29, 2013
Court focuses on prejudice to class members or compromising integrity of the lawsuit.

Court Finds CAFA Ambiguous, but Clear, on Attorney Fees
By Kelso L. Anderson – July 23, 2013
Divided Ninth Circuit limits attorney fees to a percentage of value of redeemed coupons.

Investigating a Juror's Claim of Racial Bias
By Jannis E. Goodnow – July 18, 2013
In rare cases, a trial court may investigate whether racial bias affected a verdict.

Supreme Court Closes Class Action Loophole
By Jonathan B. Stepanian – July 15, 2013
Stipulation limiting damages inadequate to defeat federal class action jurisdiction.

Attorneys Suspended Nine Months for Influencing Client's Story
By Bethany Leigh Rabe – July 12, 2013
Stipulation limiting damages inadequate to defeat federal class action jurisdiction.

Patent Complaint Does Not Have to Identify Infringing Activity
By Christina M. Jordan – July 3, 2013
Sample form satisfies the pleading standards of notice and plausibility.

Florida's Economic Loss Rule Limited to Products Liability Cases
By Oran F. Whiting – July 1, 2013
Expansion of the rule beyond its products liability origins proves unworkable in practice.

Unfulfilled Discovery Promises Lead to Rule 16(f) Sanctions
By Angela Foster – June 25, 2013
District court imposes sanctions for delaying case without a finding of bad faith.

Ninth Circuit Allows Intervention to Preserve Deposition
By Caitlin Haney – June 21, 2013
Lawyers must take steps to fully enforce protective orders after a case settles.

Class Certification Denied in Data Breach Case
By Henry R. Chalmers – June 18, 2013
Lack of expert testimony prevents plaintiffs from satisfying predominance requirement.

Fraud-on-the-Market Theory Questioned
By Sean T. Carnathan – June 12, 2013
Securities fraud plaintiffs win, but is the victory pyrrhic?

Law Firm's Advance Conflict Waiver Upheld
By Lisa R. Hasday – June 6, 2013
Sophisticated company gave informed consent for lawyer to represent future adverse client.

Oil and Gas Regulation Sole Domain of State
By Katerina Milenkovski – June 4, 2013
Ohio court rules municipality's home rule preempted by state regulatory scheme.

Attorney Blogger Runs Afoul of Ethics Rules on Advertising
By Renee Choy Ohlendorf – May 30, 2013
Virginia high court finds blog is not protected political speech.

Zip Codes Are Private
By Andrew J. Kennedy – May 28, 2013
Ruling fuels class actions against retailers following similar California suits.

Courts Remain Reluctant to Expand Interlocutory Appeals
By Caitlin Haney – May 22, 2013
Private parties cannot seek interlocutory appeal for issues reserved for state actors.

Lawyers May Face Liability for Ex-Parte Defamatory Remarks
By M. Derek Harris – May 16, 2013
Potential defamatory statements may be subject only to a qualified privilege.

Counterclaim May Be Avoided by Covenant Not to Sue
By Christina M. Jordan – May 13, 2013
Plaintiff may exit trademark lawsuit by filing broadly worded covenant.

Asking for Friendly Advice Can Create a Conflict
By Jannis E. Goodnow – April 29, 2013
Plaintiff's choice of counsel stymied by defense counsel's casual consultation.

Co-Client Relationship Between Insurer and Insured Not Automatic
By Ian S. Clement – April 23, 2013
Insured's assertion of attorney-client privilege upheld against insurer.

Co-Client Relationship Between Insurer and Insured Not Automatic
By Ian S. Clement – April 23, 2013
Insured's assertion of attorney-client privilege upheld against insurer.

"Golden Rule" Arguments Not Okay on Liability Issues
By Bethany Leigh Rabe – April 17, 2013
D.C. Circuit orders retrial over "golden rule" statements, furthering split among circuits.

Contribution and Indemnification for ERISA Fiduciaries
By Douglas E. Motzenbecker – April 11, 2013
Federal courts divided on implied right, and the Supreme Court remains silent.

Attorney's ECF Error Forfeits Client's Right to Appeal
By Kelso L. Anderson – April 5, 2013
Second Circuit limits district court's discretion to grant relief from untimely appeal.

Establishing That Text Messages Are Admissible
By Sara E. Costello – April 1, 2013
Employer retaliation—not employee resignation—triggers constructive discharge claim.

"Reckless Disregard" May Suffice for Spoliation Sanction
By Sean T. Carnathan – March 26, 2013
Court imposes adverse inference instruction despite lack of actual malice.

Rambus's Prejudicial, Bad Faith Spoliation Warrants Harsh Sanction
By Joseph Callanan – March 18, 2013
District court "fully explains" spoliation sanction that rendered patents unenforceable.

Circuits Split on Computer-Based Personal Jurisdiction
By Henry R. Chalmers – March 11, 2013
Nature of claims and language in long-arm statutes may explain different outcomes.

Lawyers Are Ethically Bound to Civility and Professionalism
By Oran F. Whiting – March 6, 2013
Duty to advocate zealously is not license for uncivil conduct, says Indiana high court.

Attorney's Failure to Join Essential Party May Be Malpractice
By Angela Foster – February 27, 2013
Unsettled issue of law is not a silver bullet against attorney's inaction.

Informal Agreement Does Not Mean Done Deal
By Katerina E. Milenkovski – February 22, 2013
Requirements of Copyright Act not satisfied by informal email agreement between attorneys.

Truthful Off-Label Marketing is Protected Speech
By Jonathan B. Stepanian – February 20, 2013
Second Circuit deals blow to FDA attempts to restrict off-label marketing.

Ethical Limits on Rebutting Client's Disparaging Internet Comments
By Renee Choy Ohlendorf – February 14, 2013
Ethics Commission balances protection of former client against attorney defending his reputation.

Securities Class Action Resolutions Slow Down
By Lisa R. Hasday – February 11, 2013
Report points to a pending Supreme Court decision and fewer available cases.

Former Cocounsel Must Share the Fruits of Their Labor
By Ian S. Clement – January 23, 2013
Contingency fee firm's quantum meruit claim may proceed against former cocounsel.

Simple Negligence Sufficient for Ethics Violation
By Kelso L. Anderson – January 23, 2013
Attorney's failure to inform secondary court of withdrawal violates ethics requirement.

Malpractice Insurer Must Defend Lawyer Who Admits Mistake
By Jannis E. Goodnow – January 16, 2013
Ethical duty trumps policy that prohibits admission of liability.

Can Judges "Friend" Attorneys on Social Media?
By Bethany Leigh Rabe – January 14, 2013
The Tennessee Judicial Ethics Committee says judges must proceed with caution on social media.

Surprise Order Forces Parties to Identify Bloggers on Payroll
By Jannis E. Goodnow – January 3, 2013
Court orders disclosure of paid commentators making statements on issues in case.

2012

Court Orders Cloning of a Nonparty Attorney's Computer
By Angela Foster – December 26, 2012
ESI of a nonparty attorney is discoverable if it does not unreasonably burden the attorney.

Overtime Recoverable in FMLA Claim
By Jonathan B. Stepanian – December 21, 2012
Establishing a right to recovery is simple, but calculating the award is more difficult.

Litigation Privilege Is No Defense to Malpractice Claim
By Joseph Callanan – December 18, 2012
Reporting an insured's illegal conduct, which voided coverage, negated the litigation privilege.

Contract Attorney's Conflict Not Grounds for Disqualification
By Natasha Saggar Sheth – December 13, 2012
Conflict not imputed to firm that outsourced work to contact attorney.

Court Imports E-Discovery Best Practices to the FOIA Realm
By Ian S. Clement – December 5, 2012
Federal agencies are required to cooperate on search protocols.

Georgia Judges Must Cure Harm of Improper Arguments
By Oran F. Whiting – November 30, 2012
Objecting party need not request remediation; courts' curative responsibility is mandatory.

Boundaries of Computer Fraud Insurance Coverage
By Renee Choy Ohlendorf – November 26, 2012
Commercial coverage policy extends to cyber claim.

Circuits Split on Valuing Offset Against Criminal Restitution
By Sean T. Carnathan – November 19, 2012
Timing of valuation makes a huge difference under federal act.

Discovery of Facebook Posts No Longer A Given
By Andrew J. Kennedy – November 14, 2012
A district court bucks the trend of allowing broad discovery of social media.

When an Expert Becomes a Judge-Elect, Testimony May Proceed
By Lisa R. Hasday – November 9, 2012
Florida allows judge-elect to finish testimony before taking the bench.

Attorney Gambles Chasing Fees and Loses Big
By Lisa R. Hasday – November 9, 2012
In fee disputes, recognize, evaluate, and know the risks before gambling on litigation.

Judicial Deliberative Privilege Trumps Subpoena Power
By Kelso L. Anderson – October 24, 2012
Massachusetts' high court announces rule protecting judges' deliberations in cases.

Privilege Depends on Conflicts and Nature of In-House Position
By Henry R. Chalmers – October 15, 2012
Law firms cannot assume communications with their own in-house counsel are privileged.

State Bar's Threat of Sanctions Violates Right to Free Speech
By Katerina E. Milenkovski – October 5, 2012
Rule of professional conduct is unconstitutional as applied to attorney's comments.

Class Counsel Denied $8.5 Million in Fees
By Bethany Leigh Rabe – October 3, 2012
"Egregious" conflict of interest leads to forfeiture of attorney fees in class action.

Cautionary Tale: Attorneys Must Guard Confidential Information
By Sara E. Costello – September 24, 2012
Attorneys can be subject to sanctions even for inadvertent violation of protective orders.

Death of a Salesman Exemption
By Teresa Rider Bult – September 18, 2012
Supreme Court finds salesmen are exempt under FLSA even when they don't "sell."

California Affirms Work Product Protection for Witness Statements
By Natasha A. Saggar – September 14, 2012
Witness statements afforded qualified protection; no protection for identity of witnesses.

Insurer Has Duty to Settle Even in Absence of Settlement Demand
By Caitlin Haney – September 10, 2012
The Ninth Circuit decision extends California law but leaves extent of duty largely undefined.

Pennsylvania Charts Its Own Path on Electronic Discovery
By Jonathan B. Stepanian – September 4, 2012
The state and federal rules are similar, but federal jurisprudence is rejected.

Treating Physicians Can Serve as Defense Experts
By Oran F. Whiting – August 29, 2012
New Jersey court broadens pool of available qualified medical experts.

Colorado's Different Ethics Approach to Litigation Expenses
By Angela Foster – August 27, 2012
Permissible versus impermissible financial advances depends on its purpose.

New Trend in Navigating the Minefield of Civil Rule 13(a)
By Andrew J. Kennedy – August 20, 2012
Test for compulsory counterclaims opens the door to balancing of the equities.

Angry Birds Will Not Violate Bar Rules; Abusive Tactics Will
By Sean T. Carnathan – August 10, 2012
Abusive tactics and juvenile antics get attorney and firm disqualified.

Attorney's Settlement "Mistake" Raises Ethical Questions
By Renee Choy Ohlendorf – August 6, 2012
Plaintiff's lawyer disavows last-minute settlement after learning jury would have awarded $9 million.

Ethics Commission Recommends Updates to Model Rules
By Sara E. Costello – July 23, 2012
Proposals target technology, lawyer mobility, and outsourcing.

Predictive Coding Portends Change in Discovery Practice
By Swati S. Desai – July 12, 2012
The courts' acceptance of computer-aided search could reduce review costs.

Courts Address Preservation of Personal Electronic Device Data
By Christina Michelle Jordan – July 5, 2012
Preservation orders differ over scope of relief granted.

Bright-Line Rule Adopted for Citizenship of Defunct Corporation
By Joseph Callanan – June 28, 2012
Dissolved corporation has no principal place of business under diversity jurisdiction test.

Flat-Fee Arrangements May Carry Sharp Consequences
By Jonathan B. Stepanian – June 20, 2012
Attorneys should exercise care in preparing flat-fee agreements.

SC Bar Ethics Committee Advises Against JustAnswer.com
By Bethany Leigh Rabe – June 14, 2012
Lawyers must be cautious of ethical pitfalls in question-and-answer websites.

Think Settlement Negotiations Are Confidential? Think Again.
By Jannis E. Goodnow – June 8, 2012
Federal Circuit allows discovery of settlement negotiations in patent dispute.

Prometheus's Patent Ruled a Myth
By Katerina E. Milenkovski – May 29, 2012
Supreme Court finds diagnostic test an unpatentable law of nature.

Forensic Expert Permitted to Identify Keyboard User
By John W. Joyce – May 23, 2012
Limited access to multiple computers with similar file structures is an acceptable ultimate issue opinion.

Supreme Court Limits FMLA Claims Against States
By Lisa R. Hasday – May 14, 2012
Sovereign immunity bars relief under the self-care provision.

Federal Procedural Rules Trump Hague Convention
By Douglas E. Motzenbecker – May 7, 2012
French-blocking statute did not excuse foreign corporation from U.S. discovery obligations.

Fiduciary Duty Exception to Privilege Inapplicable in Illinois
By Oran F. Whiting – April 30, 2012
Legal advice to law firm is protected from disclosure to firm's client.

Prison Is Not a Custodial Environment for Miranda Purposes
By Swati S. Desai – April 25, 2012
Supreme Court upholds interrogation about other crimes in "normal" prison environment.

Managers of Delaware LLCs Owe Fiduciary Duty Except by Agreement
By Joseph Callanan – April 16, 2012
Chancery court rules that duty owed unless modified by parties, but Supreme Court may rule otherwise.

Court Misses Chance to Tackle Unpatentable Abstract Ideas
By Christina Michelle Jordan – April 13, 2012
Federal Circuit holds claims are not patent-eligible, but definition of "abstract ideas" remains murky.

Congress Guts Bill of Rights
By Mark A. Drummond – April 1, 2012
Repeal contained in footnote to Omnibus Health-Care Bill.

Feds Give Corporations Vote; Chancery Court Abolished
By Avril Poisson – April 1, 2012
After Citizens United, state and federal lawmakers take action.

Bonds and Environmental Blunders in Engagement Letters
By Kent A. Lambert – March 30, 2012
Louisiana case against bond counsel underscores value of proper limits on scope of representation.

Interpreter Must Take Oath to Make True Translation
By Katerina E. Milenkovski – March 12, 2012
Failure to swear translator not necessarily a reversible error.

First Circuit Limits Sarbanes-Oxley's Whistleblower Protection
By Sara E. Costello – March 28, 2012
Court holds 2–1 that statute only protects employees of public companies over sharp dissent.

Intervenors Still in Limbo on Standing Requirements
By Renee Choy Ohlendorf – March 26, 2012
Courts consider whether intervenors must establish Article III standing under FRCP 24.

Expansive Reading of Rule 30(e) Adopted in Massachusetts
By Natasha A. Saggar – March 12, 2012
Majority view allowing all changes to depo erratas is adopted by state high court.

Pre-Eligibility Protection under FMLA
By Jannis E. Goodnow – March 2, 2012
Employee's advance notice of potential maternity leave triggered FMLA rights.

Nevada Offers Pharmacists Bitter Pill
By Teresa Rider Bult – February 29, 2012
Court adopts "learned intermediary" defense, but refuses to apply it.

California High Court Limits Product Liability in Unusual Asbestos Case
By Bethany Leigh Rabe – February 24, 2012
Strict liability is not necessarily extended to manufacturer for incorporated component products.

Judge Rejects SEC's Position on Citigroup Consent Judgment
By Sean T. Carnathan – February 21, 2012
The $95 million penalty is "pocket change," the judge says.

Attempted Release of Sanctions Liability Spells Trouble
By Oran F. Whiting – February 13, 2012
Lawyer should not commingle release of claims against firm with settlement of client's underlying lawsuit.

Circuits Split on Materiality in Securities Class Actions
By Swati S. Desai – February 6, 2012
Courts debate proof versus plausibility at pleadings stage.

Second Circuit Lifts Sanction on Ghostwriting Petition
By Lisa R. Hasday – February 3, 2012
Should a court sanction an attorney for helping pro se litigants draft and file petitions for review?

Party Relieved from Estimated 95-Million-Page Review
By Brian A. Zemil – January 27, 2012
Court overrides parties' agreement requiring broad retrieval of data in unallocated space.

Accounting for Damages for Dummies: Expert Opinion or Not?
By  Renee Choy Ohlendorf – January 20, 2012
Accountants' testimony on preparation of proofs of loss is lay opinion.

Seventh Circuit Affirms Federal Preemption in Food-Labeling Case
By Natasha A. Saggar – January 12, 2012
The Food and Drug Act trumps non-conforming state laws.

Counsel Enjoined From Contacting Non-Party Witnesses
By Sara E. Costello – January 6, 2012
Court concludes discouraging witnesses from speaking with opposing counsel is improper.

2011

Pro Se Bankruptcy Filings Growing Faster than Other Debtor Relief
By Joseph Callanan – December 29, 2011

Two-to-one growth rate may be due to federal reforms increasing potential liability.