Legal Headlines

News

Case Summaries

Attorney's Fees

[03/05] Howard v. St. Germain
In an appeal from the district court's order assessing attorney's fees against defendants based on their improper removal of the case, the order is affirmed where the district court did not abuse its considerable discretion in taxing costs and attorney's fees to defendants because an objectively reasonable basis for removal did not exist.

[03/04] Keup v. Hopkins
In a 42 U.S.C. section 1983 action by a prisoner claiming defendant prison personnel prevented plaintiff from sending drawings outside the prison in violation of the First Amendment, judgment for plaintiff is affirmed in part where: 1) defendants did not raise their mootness or exhaustion defenses at trial; and 2) because the district court directed a verdict for plaintiff, he was the prevailing party. However, the judgment is reversed in part where, when a prisoner plaintiff only receives nominal damages of $1.00, 42 U.S.C. section 1997e(d)(2) caps attorney fees at $1.50.

[02/25] Donahue v. Donahue
Trial court's order, charging a trust with some $5 million in past and ongoing attorney fees incurred on behalf of a former trustee in defending against the beneficiary's allegations of self-dealing and conflict of interest is reversed as it cannot be determined from the trial court's order whether the fee awards are consistent with applicable legal principles. Long-established principles of trust law impose a double-barreled reasonableness requirement where: 1) the fee award must be reasonable in amount and reasonably necessary to the conduct of litigation; and 2) it also must be reasonable and appropriate for the benefit of the trust.

[02/25] Pellegrino v. Robert Half Int'l
In plaintiffs' action against their former employer, a temporary staffing firm, for hour and wage violations, trial court's award of plaintiffs' attorneys fees' is affirmed in part, reversed in part and remanded where: 1) the court did not err by reducing the lodestar amount by no more than 15 percent to reflect the parties' litigation of the unfair competition claims because the legal and factual issues presented in those claims were interrelated with those issues presented by plaintiffs' wage and hour claims; 2) the record supports the trial court's application of a 1.75 multiplier to the reduced lodestar amount for attorney fees generated up until plaintiffs brought their motion for attorney fees based on the factors set forth in Ketchum; and 3) the record does not support trial court's application of a 1.75 multiplier to fees incurred in bringing the motion for attorney fees.

[02/22] City of Waco v. Kelley
In an action by an assistant chief of police challenging his indefinite suspension for being arrested and charged with drunk-driving in another city, the judgment of the hearing examiner is reversed and remanded where: 1) although the hearing examiner did not exceed his jurisdiction by reducing the indefinite suspension, he exceeded his jurisdiction by ordering a 180-day suspension, as the Civil Service Act does not authorize a hearing examiner to impose a temporary suspension of more than 15 days; 2) the hearing examiner exceeded his jurisdiction by ordering back pay and benefits to the extent they were awarded for any time during which the assistant chief was suspended; 3) the hearing examiner exceeded his jurisdiction by demoting the chief assistant; and 4) the court of appeals erred in affirming assistant chief's award of attorneys' fees.

[02/18] US v. Thouvenot, Wade & Moerschen, Inc.
In a consolidated appeal, requiring interpretation of the Equal Access to Justice Act involving the issue of whether the government's position was substantially justified, district court's judgment is reversed in two cases and affirmed in the last case where: 1) in the case against a project site engineer, the government had a substantial though not winning case, and therefore plaintiff failed to establish its right to an award; 2) in the second case involving social security disability benefits, district court's denial of fees to the prevailing claimant is reversed as government's position was not substantially justified; and 3) district court's reversal of ALJ's denial of plaintiff's disability benefits but denial of his fees is affirmed as the district judge was persuaded that the agency's position had been substantially justified.

[02/18] Rodriguez v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C.
In an appeal from the district court's order awarding attorneys' fees after an infant compromise hearing, the award is affirmed where: 1) the district court did not err in looking beyond the retainer agreement between plaintiffs and their attorneys to the actual work performed by the various attorneys; and 2) the district court did not err in determining that appellant-attorneys did not obtain informed consent from the client for the fee-sharing agreement.

[02/16] McDaniel v. Schenectady
In plaintiffs' appeal from an attorney's fee award in a class action challenging defendant-county's strip search policy, the award is affirmed where the district court did not abuse its discretion by declining to award attorneys' fees using a percentage-of-fund approach, in the extent of its reliance on Arbor Hill Concerned Citizens Neighborhood Ass'n. v. County of Albany, 493 F.3d 110 (2d Cir. 2007), or in its application of the reasonableness factors set forth in Goldberger v. Integrated Resources, Inc., 209 F.3d 43 (2d Cir. 2000).

More...

Banking Law

[03/09] Martinez v. Wells Fargo Home Mortgage, Inc.
In an action under Section 8(b) of the Real Estate Settlement Procedures Act (RESPA), and California's Unfair Competition Law (UCL), claiming that a mortgage lender charged plaintiffs an illegal underwriting fee, dismissal of the complaint is affirmed where: 1) the clear and unambiguous language of RESPA Section 8(b) did not reach the practice of "overcharging"; and 2) the UCL claims alleging "unfair" and "fraudulent" conduct were preempted by the National Bank Act, and the allegations of "illegal" conduct failed to state a claim.

[03/02] Ma v. Merrill Lynch, Pierce, Fenner & Smith, Inc.
In an action against Merrill Lynch based on unauthorized transfers from plaintiff's investment account, summary judgment for defendant is affirmed where New York U.C.C. Section 4-A-505, which imposes a one-year statute of repose on certain claims based on electronic funds transfers, bars plaintiffs' common law claims, which had longer limitations periods.

[02/26] Williams v. Fleming
In plaintiff's suit against a bank, the US, and and an FDIC associate examiner, claiming that the associate examiner's racially motivated bias against plaintiff and other African-Americans was the reason he stopped receiving loans from the bank, dismissal of all claims including the Bivens suit against the associate examiner is affirmed where, because the dismissal of plaintiff's suit against the US was on the merits, and not for lack of subject matter jurisdiction, his remaining Bivens suit was properly barred by section 2676 of the FTCA.

[02/09] US v. Harris
Defendants' sentences for bank fraud and conspiracy to traffic in or use unauthorized access devices are affirmed in part where: 1) the district court did not clearly err in calculating one defendant's intended loss as being equal to the credit limits of the credit cards she compromised; and 2) a defendant's sentence may be enhanced where his crime recklessly jeopardizes property, even if that property survives the crime intact. However, one defendant's sentence is vacated in part where the district court erred by enhancing his sentence four levels based on its finding that his offense had involved fifty or more victims, because only eight of the sixty-three financial institutions identified as victims by the district court suffered an actual loss.

[02/05] Weintraub v. Quicken Loans, Inc.
In plaintiffs' action under the Truth in Lending Act against defendant for refusing to refund a $500 deposit plaintiffs' demanded after they attempted to exercise their right to rescind prior to closing on a loan to refinance their house, summary judgment for defendant is affirmed as a consumer cannot exercise the right to rescind created by 15 U.S.C. section 1635(a) until after consummation of a consumer credit transaction.

[01/28] Midwest Title Loans, Inc. v. Mills
In a title loan company's suit under 42 U.S.C. section 1983 to enjoin, as a violation of the Commerce Clause, the application to plaintiff of Indiana's version of the Uniform Consumer Credit Code, district court's entry of permanent injunction is affirmed as the fact that the contract is made and executed in Illinois is enough to show that the territorial-application provision violates the commerce clause.

[01/25] Chaney v. Dreyfus Serv. Corp.
In a tort and civil RICO action against an investment company through which a third party funneled certain insurance companies' funds before moving them to his Swiss bank account, summary judgment for defendant is affirmed in part where there was no evidence that defendant knew or ought to have known that the funds it processed on behalf of the third party's firm were, in fact, fiduciary. However, the order is vacated in part where New York law did impose on defendant a duty -- in this case running only to certain subaccounts -- to ensure that the transactions it processed on behalf of its customers were authorized.

[01/25] In re Morgan Stanley Info. Fund Secs. Litig.
In a securities fraud action alleging that defendant bank failed to make certain disclosures relating to the mutual funds it offered, the dismissal of the complaint is affirmed where: 1) neither the Securities Act nor Form N-1A required defendants to disclose the information that plaintiffs allege was omitted; and 2) a careful review of plaintiffs' allegations revealed that the true object of their claims was the alleged malfeasance of the mutual funds' affiliated broker-dealer entities and not the public offerings conducted by the funds themselves.

More...

Civil Procedure

[03/09] McGuan v. Endovascular Techs., Inc.
In plaintiffs' products liability action against the makers of a device for use by surgeons to treat abdominal aortic aneurysms, for injuries suffered after they were implanted with the device, grant of defendants' motion for a summary judgment is affirmed where: 1) plaintiffs' fraud claims of FDA violations are preempted under Buckman; 2) the trial court did not err in denying plaintiffs' motions to amend their complaints; and 3) the trial court did not abuse its discretion in granting defendants' motion to seal documents.

[03/09] Seltzer v. Barnes
Trial court's denial of defendant's anti-SLAPP motion, arising from an underlying suit involving claims against a property management company and homeowners' association, is reversed where: 1) the trial court erred in concluding plaintiff's two causes of action against defendant do not arise from speech or petitioning activity where his alleged conduct was the negotiation of a settlement in the prior case; and 2) because defendant may not be held liable for the alleged conduct under the litigation privilege, plaintiff has failed to show a probability of prevailing on her causes of action for fraud and intentional infliction of emotional distress.

[03/09] Equal Employment Opportunity Comm'n v. Hosanna-Tabor Evangelical Lutheran Church & Sch.
In an employment discrimination and retaliation action brought by a teacher at a religious school claiming violations of the ADA, the district court's grant of summary judgment in favor of the defendant based on the "ministerial exception" is vacated and remanded as, given the factual findings relating to plaintiff's primary duties as a teacher, the district court erred in its legal conclusion classifying her as a ministerial employee.

[03/09] In re: Omnicom Group, Inc. Secs. Litig.
In a securities class action alleging that defendants fraudulently accounted for a transaction, summary judgment for defendants is affirmed where: 1) plaintiffs failed to prove loss causation because their expert's testimony did not suffice to draw the requisite causal connection between the information in the article at issue and the fraud alleged in the complaint; and 2) the generalized investor reaction of concern causing a temporary share price decline was far too tenuously connected -- indeed, by a metaphoric thread -- to the transaction to support liability.

[03/08] Kane Cty. v. US
In an appeal from the denial of plaintiffs' motion to intervene in an action brought by Kane County, Utah, to quiet title to several purported rights-of-way across federal public lands, the order is affirmed where: 1) even assuming plaintiffs had an interest in the quiet title proceedings at issue, plaintiffs failed to establish that the U.S. could not adequately represent plaintiffs' interest; and 2) the denial of permissive intervention was not arbitrary and capricious.

[03/08] In Re: Ray
District court's judgment affirming the bankruptcy court's dismissal of two Chapter 11 proceedings was correct, but the decision is vacated, as the law firm lacked standing where there is no evidence that one of the law firm's former attorneys ever informed the bankruptcy court that it was appearing on behalf of the firm and the record is devoid of any mention of the firm by the attorney or any other party.

[03/05] Kporlor v. Holder
Petition for review of the BIA's denial of a Liberian citizen's applications for withholding of removal and related relief is denied where: 1) federal appellate courts lack jurisdiction under 8 U.S.C. section 1252(a)(2)(C) to review BIA denials of withholding of removal in cases involving crime of moral turpitude; and 2) the court lacks jurisdiction to review petitioner's CAT claim because he did not appeal the IJ's denial of the claim to the BIA and therefore, did not exhaust his administrative remedies.

More...

Commercial Law

[03/04] New York v. Golden Feather Smoke Shop, Inc.
In defendants' appeal from a preliminary injunction prohibiting the sale of untaxed cigarettes other than to members of the Unkechauge Nation for their personal use, the Second Circuit certifies the following questions to the New York Court of Appeals: 1) Does N.Y. Tax Law section 471-e, either by itself or in combination with the provisions of section 471, impose a tax on cigarettes sold on Native American reservations when some or all of those cigarettes may be sold to persons other than members of the reservation's nation or tribe?; 2) If the answer to Question 1 is "no," does N.Y. Tax Law section 471 alone impose a tax on cigarettes sold on Native American reservations when some or all of those cigarettes may be sold to persons other than members of the reservation's nation or tribe?

[03/02] Mac's Shell Serv., Inc. v. Shell Oil Prods. Co.
In an action under the Petroleum Marketing Practices Act (Act) by service station franchisees, alleging that a petroleum franchisor, Shell, and its assignee had constructively terminated their franchises and constructively failed to renew their franchise relationships by substantially changing the rental terms that the dealers had enjoyed for years, increasing costs for many of them, a circuit court's order partially affirming judgment for plaintiffs is affirmed in part where a franchisee who signs and operates under a renewal agreement with a franchisor may not maintain a constructive nonrenewal claim under the Act. However, the court of appeals' order is reversed in part where a franchisee cannot recover for constructive termination under the Act if the franchisor's allegedly wrongful conduct did not compel the franchisee to abandon its franchise.

[03/02] Pfizer v. Sup. Ct.
In plaintiffs' action against Pfizer, the manufacturer of Listerine mouthwash, pursuant to the Unfair Competition Law (UCL) and False Advertising Law claiming that Pfizer marketed the mouthwash in a misleading manner by representing that the use of it can replace the use of dental floss in reducing plaque and gingivitis, defendant's petition for writ of mandate seeking to overturn an order certifying the class action is granted as the ruling certifying a class consisting of all persons who purchased Listerine in California during a six-month period is overbroad, and In re Tobacco II Cases, 46 Cal.4th 298 (2009), does not require a different disposition in this case.

[03/02] Ad Hoc Shrimp Trade Action Comm. v. US
In plaintiff's action with the Court of International Trade challenging a determination that the multinational corporation provision, 19 U.S.C. section 1677b(d) (MNC Provision) did not apply to a company with affiliates in China and Vietnam, the court's decision is affirmed as the Department of Commerce acted in accordance with law in concluding that the MNC provision is not applicable when the non-exporting country is a nonmarket economy and normal value is based on a factors-of-production methodology.

[03/01] Powershare, Inc. v. Syntel, Inc.
In parties' action for breach of a business agreement, a district court's denial of defendant's motion to stay litigation pending arbitration is reversed where: 1) the agreement contains a mandatory arbitration provision; and 2) the standard of review to be employed by a district judge when reviewing a magistrate judge's order on a motion to stay litigation pending the resolution of a parallel arbitration proceeding is under the "clearly erroneous or contrary to law" standard elucidated in Rule 72(a).

[02/26] Resolute Natural Resources Co. v. FERC
In a petition for review of certain orders of the Federal Energy Regulatory Commission (FERC) declining to investigate allegedly anticompetitive conduct by a refining company involving oil pipelines in New Mexico, the petition is dismissed where FERC decisions not to investigate were not subject to review.

More...

Construction

[02/26] Clear Lake Riviera Cmty. Ass'n. v. Cramer
In an action against defendants to abate their violation of an approved height for their home, trial court's judgment is affirmed where: 1) the association's height guideline was validly adopted; 2) mere participation of a non-appointed person in the business of the committee, under these circumstances, would not invalidate the committee's official actions; and 3) trial court did not abuse its discretion in ordering defendants to tear down their house in order to comply with the guidelines rather than award money damages.

[02/23] Forsgren Assocs., Inc. v. Pac. Golf Cmty. Dev., LLC.
In a general contractor's suit for breach of contract and foreclosure against defendant, judgment of the trial court in favor of the plaintiff is reversed where: 1) plaintiff's mechanic's lien did not attach to the entirety of the homeowner's property adjacent to the golf course property because not all of the adjacent property was required for the convenient use and occupation of the golf course; and 2) trial court erred in awarding pre- and postjudgment interest on the foreclosure claim.

[02/22] Interstate Fire & Cas. Ins. Co. v. Cleveland Wrecking Co.
In plaintiff's claim for subrogation against defendant, alleging that defendant had breached its contract with a general contractor by failing to defend and indemnify the general contractor in an underlying suit, trial court's judgment in favor of the defendant pursuant to a demurrer is reversed as the allegations of plaintiff's amended complaint establish each of the elements for subrogation.

[02/19] Universal Concrete Prod. Corp. v. Turner Constr. Co.
In plaintiff-subcontractor's breach of contract suit against a general contractor for refusing to pay $885,507 to the plaintiff for substantial work performed, judgment of the district court in favor of defendant is affirmed as, under Virginia law, the contract unambiguously reflects both parties' understanding that plaintiff would only be paid for its work after defendant was paid by the owner. Therefore, the pay-when-paid clause contained in the parties' subcontract is enforceable and prevents plaintiff from demanding payment from defendant unless and until defendant is first paid by the owner.

[02/12] Forecast Homes, Inc. v. Steadfast Ins. Co.
In plaintiff's declaratory relief action arising from insurer's refusal to tender defense in underlying lawsuits against plaintiff for home construction defects allegedly caused by subcontractors who were required to add plaintiff to their general liability insurance polices as an additional insured, judgment in favor of the defendant is affirmed where: 1) defendant's policy plainly provides only a named insured may satisfy the self-insured retention; and 2) the policy is not illusory.

[02/12] Fortney & Weygandt, Inc. v. Am. Mfrs. Mut. Ins. Co.
In a general contractor's suit against its insurers claiming that they had a duty to defend it in third-party litigation arising out of a construction dispute, judgment in favor of defendants is reversed as the exclusion provision at issue applies only to the cost of repairing or replacing distinct component parts on which the insured performed defective work.

[02/11] Gallagher v. N.Y. Post
In a personal injury action based on a fall at a construction site, the appellate division's affirmance of the trial court's denial of summary judgment for plaintiff is reversed where plaintiffs made a prima facie showing that defendant violated Labor Law section 240(1) by failing to furnish adequate safety devices to plaintiff and defendant did not rebut that showing.

[11/04] Reserves Dev., LLC v. Crystal Properties, LLC
Trial court's reduction in damages awarded to plaintiffs for breach of contract and misrepresentation is affirmed in part and reversed in part where: 1) with the exception of the offset of $5,461.37 for landscaping and street lighting costs, which is not reversed, the record reflects plaintiff overpaid for incomplete work on the development; and 2) because the trial court's decision to reduce the damages award by the amounts overpaid was the product of a logical deductive process, the remaining offsets are affirmed.

More...

Contracts

[03/09] George's Inc. v. Allianz Global Risks US Ins. Co.
In an action against an insurer claiming that defendant failed to indemnify plaintiff for business expenses and personal property losses as required under the terms of its insurance policy, partial summary judgment for defendant on the personal property claim is affirmed, but a partial denial of summary judgment on the business expenses claim is reversed where the policy unambiguously excludes coverage for plaintiff's claimed losses.

[03/09] HealthEast Bethesda Hosp. v. United Commercial Travelers of Am.
In an action for breach of an insurance settlement contract, summary judgment for plaintiff is affirmed where: 1) defendant was not an unsophisticated party because it had significant experience in handling and negotiating claims with healthcare providers; 2) because defendant bore the risk of mistake, the district court properly denied rescission based on unilateral mistake; and 3) the record of inaction by defendant strongly supported the denial of relief under both unilateral and mutual mistake.

[03/09] San Francisco Hous. Auth. v. SEIU Local 790
Superior court's order vacating an arbitration award in its entirety on the ground that the the award is contrary to layoff provisions of the memorandum of understanding (MOU) between the parties is reversed as the remedy imposed by the arbitrator did not conflict with clear and explicit language of the MOU and it was rationally related to the breach identified.

[03/09] Hoopa Valley Tribe v. US
In an action against the United States for breach of fiduciary duty brought by the Hoopa Valley Tribe, arising from the distribution of the remainder in a Settlement Fund established under the Hoopa-Yurok Settlement Act only to the Yurok Tribe, summary judgment in favor of the government is vacated and remanded where: 1) the Hoopa Valley Tribe lacks standing because it cannot show an injury in fact; but 2) the matter should have been dismissed without prejudice

[03/04] Pac. Bell Tel. Co. v. Cal. Pub. Utils. Comm.
In a telecommunications company's appeal from (1) the district court's confirmation of an arbitral order affirming the California Public Utilities Commission's (CPUC) requirement that plaintiff lease entrance facilities to competitor local exchange carriers (LECs) at Total Element Long Run Incremental Cost (TELRIC) rates for the purpose of interconnection; and (2) the district court's order vacating the arbitrator's affirmance of CPUC's conclusion that 47 C.F.R. section 51.319(e)(2)(ii)(B) applied only on routes where competitive LECs were not "impaired" as to DS3 transport circuits, the orders are affirmed where: 1) FCC regulations authorized state public utilities commissions to order incumbent LECs to lease entrance facilities to competitive LECs at regulated rates for the purpose of interconnection; and 2) the plain language of the governing regulation, 47 C.F.R. section 51.319(e (2)(ii)(B), limited a competitive LEC to a maximum of ten DS1 circuits along any route regardless of whether the competitive LEC was impaired as to DS3 lines.

[03/04] Smith v. Adventist Health Sys.
In plaintiff's action against defendant-hospital group seeking a preliminary injunction for rejecting his application for hospital privileges and medical staff membership at defendant's hospital, judgment granting the injunction and restoring his privileges is affirmed and the court did not err when it: 1) impliedly found that a statutorily required injunction bond had been waived or forfeited; 2) expressly found that plaintiff was likely to prevail on the merits; and 3) balanced the likely interim harm to the parties of granting or denying the preliminary injunction.

[03/04] Nickey Gregory Co., LLC v. AgriCap, LLC
In plaintiffs' action under the Perishable Agricultural Commodities Act (PACA), to recover from the defendant's finance company $106,696 owed them for the sale of produce to the defendant, judgment of the district court is affirmed in part, vacated in part and remanded where: 1) the district court correctly concluded that defendant's accounts receivable were held by the finance company as collateral for a loan and therefore were subject to a PACA trust; 2) district court properly rejected the finance company's BFP defense; and 3) district court's damage award is vacated and remanded to award commodities sellers the full amount of their unpaid balance.

More...

Copyright

[03/02] Reed Elsevier, Inc. v. Muchnick
In a class action alleging copyright infringement, a circuit court's ruling vacating a settlement class certification order for lack of subject matter jurisdiction is reversed where 17 U.S.C. section 411(a)'s registration requirement is a precondition to filing a copyright infringement claim, but a copyright holder's failure to comply with that requirement does not restrict a federal court's subject matter jurisdiction over infringement claims involving unregistered works.

[02/25] Maverick Recording Co. v. Harper
In a copyright infringement action based on unlawful file sharing, partial summary judgment for plaintiffs is affirmed where: 1) the uncontroverted evidence was more than sufficient to compel a finding that defendant had downloaded the files; and 2) defendant infringed plaintiffs' exclusive right to reproduce their copyrighted works by downloading the 37 audio files to her computer without authorization. Moreover, the partial denial of summary judgment for plaintiffs is reversed where lack of legal sophistication could not overcome a properly asserted 17 U.S.C. 402(d) limitation to the innocent infringer defense.

[02/25] Gaylord v. US
In plaintiff's suit against the United States for copyright infringement involving stamps issued by the US Postal Service that made use of plaintiff's copyrighted work, depicting part of the Korean War Veterans Memorial, judgment of the United States Court of Federal Claims is affirmed in part, reversed in part, and remanded where: 1) weighing the factors, the government's use of plaintiff's copyrighted work in the stamp was not a fair use; and 2) the Court of Federal Claims did not clearly err in determining that authorship of the art rested solely with plaintiff.

[02/19] Utopia Provider Sys., Inc. v. Pro-Med Clinical Sys., L.L.C.
In a copyright infringement action based on defendant's alleged misappropriation of plaintiff's paper templates designed to capture a physician-patient encounter, summary judgment for defendant is affirmed where the selection and arrangement of the terms in the template did not convey information and was not sufficiently original.

[01/29] Latin American Music Co. v. American Soc'y of Composers Authors & Publishers
In parties' dispute over the rights to a song, jury verdict in favor of the defendants is affirmed where: 1) district court did not err in instructing the jury with respect to a 1982 contract; 2) district court did not err in refusing to give a missing witness instruction; and 3) plaintiff's remaining claims are rejected.

[01/27] Massachusetts Museum of Contemporary Art Found., Inc. v. Buchel
In a dispute between an artist and a museum over the implementation and installation of a football-field sized artwork, judgment of the district court in favor of the museum is affirmed in part, vacated in part and remanded where: 1) the Visual Artists Rights Act (VARA) applies to unfinished works, and as such, genuine issues of material fact forecloses summary judgment on one of the artist's VARA claims - that the museum violated his right of artistic integrity by modifying the installation; and 2) the artist asserted a viable claim under the Copyright Act that the museum violated his exclusive right to display his work publicly.

[12/01] Guessous v. Chrome Hearts, LLC
In plaintiff's suit against defendant for infringement of jewelry designs, trademarks and copyrights, trial court's decision denying plaintiff's motion to strike defendant's complaint under the anti-SLAPP statute is affirmed as the filing of a lawsuit in a foreign country is not protected activity under the United States or California Constitutions as to implicate the statute.

[11/05] Schrock v. Learning Curve Int'l, Inc.
In plaintiff's copyright infringement action against defendant who had hired him to take photos of the "Thomas & Friends" toy train characters for use in promotions, district court's dismissal of his complaint is reversed where: 1) the photos qualify for the limited derivative-work copyright provided by section 103(b) as plaintiff's artistic and technical choices combine to create a two-dimensional image that is subtly but nonetheless sufficiently his own; and 2) district court erred in concluding that plaintiff needed defendant's permission to copyright the photos, as there is nothing in the Copyright Act requiring the author of a derivative work to obtain permission to copyright his work from the owner of the copyright in the underlying work.

More...

Criminal Law & Procedure

[03/09] Zia Trust Co. v. Montoya
In an action for excessive force brought by family members of a man defendant-officer shot and killed while responding to a domestic disturbance, denial of summary judgment based on qualified immunity is affirmed where the court could not say that a van fifteen feet away, which according to the plaintiffs was clearly stuck on a pile of rocks, gave defendant probable cause to believe that there was a threat of serious physical harm to himself or others that would justify his use of force.

[03/09] US v. Wise
Defendant's firearm possession sentence is affirmed where: 1) defendant's prior conviction under Utah law for failure to stop at the command of a police officer was a "crime of violence" under the Sentencing Guidelines; and 2) the district court erred in not assigning criminal history points for one of defendant's prior convictions, but that error did not invalidate defendant's sentence.

[03/09] US v. Cha
In a prosecution for conspiracy, sex trafficking and coercion, and enticement to travel for the purpose of prostitution, a grant of defendants' motion to suppress evidence is affirmed where the warrantless seizure of defendants' residence, which lasted a minimum of 26.5 hours, was constitutionally unreasonable.

[03/09] Espinosa v. City & County of San Francisco
In a 42 U.S.C. section 1983 action claiming excessive force by defendants-officers, denial of summary judgment based on qualified immunity is affirmed where: 1) defendants failed to show as a matter of law that plaintiff's decedent did not have a reasonable expectation of privacy; 2) the district court properly found that defendants failed to show as a matter of law that the emergency and exigency exceptions to the Fourth Amendment warrant requirement applied; 3) defendants failed to show that there were no questions of fact regarding whether a security guard had apparent authority to consent and implied consent; and 4) the district court did not err in finding that there were genuine issues of fact regarding whether the officers intentionally or recklessly provoked a confrontation.

[03/09] US v. Stearn
Following a grand jury indictment of defendants for federal narcotics and weapons offenses, district court's order granting in part motions to suppress evidence in favor of defendants is, with one irrelevant exception, reversed in its entirety where: 1) the magistrate judge had a substantial basis for determining that probable cause existed to search the apparent residence of a confirmed drug dealer; 2) although closer probable cause questions are presented by the searches of other residences, each search is upheld under the Leon good faith exception as each warrant was sufficiently colored in probable cause to justify the executing officers' good faith reliance; and 3) the suppression of a defendant's saliva sample as "fruit of poisonous tree" is reversed as the defendant failed to prove a primary invasion of his own Fourth Amendment rights.

[03/09] In re Victor L.
In a conviction of a minor for possession of specified illegal weapons, juvenile court's order placing the defendant on probation with various conditions is affirmed for the most part with the exception of: 1) the restrictions on defendant's right to associate with individuals disapproved of by his probation officer or his parents is unconstitutionally vague and will be modified to include a personal knowledge requirement; 2) restrictions on defendant's presence "where dangerous or deadly weapons or firearms or ammunitions exist" is unconstitutional as due process requires that the probationer be informed in advance whether his conduct comports with or violates a condition of probation; and 3) to the extent the second Internet condition prohibits any "use of" or "access to" an Internet-enabled computer, it conflicts with the other two conditions, thereby making the combination of conditions unconstitutionally vague.

[03/09] US v. Salem
In a prosecution of defendants for wire fraud and receiving stolen funds, district court's sentences based on relevant conduct findings are remanded as the district court made findings as to the reasonableness of the co-schemers' acts only, but it made no finding as to the scope of the jointly undertaken criminal activity under U.S.S.G. section 1B1.3(a)(1)(B).

[03/09] Redd v. Wright
In a 42 U.S.C. section 1983 action arising out of plaintiff inmate's confinement in tuberculosis hold following his refusal to submit to tuberculosis testing, summary judgment for defendants is affirmed where: 1) prior precedent did not "clearly foreshadow" a holding that the testing policy, as applied in this case, violated plaintiff's Free Exercise rights; 2) it could not reasonably be said that defendants acted in violation of clearly established Eighth Amendment law by implementing the policy; and 3) it was not clearly established that plaintiff was entitled to some kind of notice that religious objectors could be exempt from the policy.

More...

Ethics & Disciplinary

[02/26] Florida Bar v. Bitterman
A referee's report and recommendations pertaining to the misconduct of an attorney while under a rehabilitative suspension, as a result of the her inappropriate behavior in dealing with an unrepresented person and conduct involving dishonesty, are approved but the recommended sanction is disapproved and the attorney is disbarred and taxed with costs.

[02/18] In re: Saghir
The Second Circuit removes an attorney from the bar of the court of appeals, pursuant to the court's reciprocal discipline rule, on the ground that the attorney was previously disbarred by the Southern District of New York.

[02/17] Gebhart v. SEC
In a petition for review of the SEC's order sustaining a National Association of Securities Dealers disciplinary sanction against petitioners-securities salespersons for making false statements to clients in connection with the sale of promissory notes used to finance the conversion of mobile home parks to resident ownership, the petition is denied where the SEC considered all of the evidence bearing on petitioners' actual state of mind, including their extreme departure from ordinary standards of care, and found that they were consciously aware of the risk that their statements were false.

[01/28] Keach v. Cty. of Schenectady
In an appeal from a district court's order denying plaintiff's motion to recuse the district judge, the appeal is dismissed where the district court merely engaged in routine judicial commentary and criticism of plaintiff's counsel, while declining to impose sanctions and making no findings of professional misconduct.

[01/15] US Commodity Futures Trading Comm. v. Dizona
In an action by the Commodity Futures Trading Corporation claiming that defendant-trader attempted to manipulate the market price of natural gas in interstate commerce, judgment as a matter of law for defendant is affirmed where: 1) a summary witness for plaintiff was not a qualified witness who could explain defendant's employer's record keeping system; and 2) a plaintiff expert's general finding of biased reporting at defendant's employer and defendant's incriminating statements on an audiotape were not sufficient to demonstrate that defendant made false entries into the spreadsheets that were sent to the publications.

[01/13] Siegel v. SEC
In a petition for review of the SEC's affirmance of the National Association of Securities Dealers' award of restitution against petitioner-securities representative, the petition is granted where the SEC completely failed to articulate any meaningful standards governing the level of causation required under Principle 5 of the Financial Industry Regulatory Authority Sanction Guidelines.

[01/07] Florida Bar v. Head
In the Florida Bar's complaint against a lawyer for ethical breaches, a referee's findings are affirmed in part and reversed in part where: 1) defendant-lawyer failed to meet his burden of proving that the referee's findings of fact are not supported by the record; and 2) referee's recommendation of a sixty-day suspension is rejected and instead, defendant is suspended from the practice of law for one year and thereafter until he proves rehabilitation.

More...

Evidence

[03/09] Thu v. Holder
In a petition for review of the BIA's order dismissing his appeal from a denial of petitioner's asylum application and related relief, the petition is denied where: 1) the Immigration Judge's credibility finding was supported by specific, cogent reasons for disbelief; and 2) the evidence in the record was not so compelling that no reasonable factfinder could fail to find the requisite fear of persecution.

[03/05] Smith v. Mahoney
In a capital habeas matter, the denial of the petition is affirmed where: 1) although defense counsel inadequately investigated the facts of the case before allowing petitioner to plead guilty, petitioner did not establish that he was prejudiced by his lawyer's representation; 2) non-character, non-circumstance evidence need not factor into the constitutionality of a death sentence; and 3) petitioner failed to develop his claim of judicial bias sufficiently to warrant an evidentiary hearing.

[03/05] People v. Memory
Conviction of defendants for murder arising from a fight in a parking lot outside a bar between two groups of men, the trial court erred in admitting evidence of the Jus Brothers Motorcycle Club as a gang, as there was no foundation that the Jus Brothers were a gang or a criminal enterprise, the evidence was not probative but was used as inadmissible character evidence.

[03/05] US v. Brown
Defendant's bank fraud conviction is affirmed where: 1) the extrinsic evidence of defendant's other uses of fictitious financial documents was substantively and temporally tied to the charged offenses, and those other uses were distinct enough not to be the "needless presentation of cumulative evidence" under Fed. R. Evid. 403; and 2) the extrinsic evidence that defendant had failed to pay for a house inspection was not probative of his intent to defraud the victim and therefore inadmissible under Rule 404(b), but this evidence was quite limited in length, not inflammatory, and was not mentioned during the government's closing arguments.

More...

Injury & Tort Law

[03/05] Bustos v. Martini Club Inc.
In a 42 U.S.C. section 1983 action based on a late-night confrontation with several off-duty police officers, dismissal of the action is affirmed where: 1) the election of remedies provisions in Tex. Civ. Prac. & Rem. Code 101.106 applied to state law intentional tort claims against a governmental unit and its employees; 2) plaintiff did not allege facts to suggest that the officers who assaulted him misused or abused their official power; and 3) bystander officers had no constitutional duty to prevent the alleged assault.

[03/05] Doe v. S. Carolina Dep't of Soc. Servs.
In a 42 U.S.C. section 1983 action brought by a minor child and her adoptive parents against defendant, an Adoption Specialist with the South Carolina Department of Social Services (SCDSS), alleging violations of their substantive due process rights under the Fourteenth Amendment and state law claims against SCDSS under the South Carolina Tort Claims Act (SCTCA), judgment is affirmed in part, vacated in part, and remanded where: 1) when a state involuntarily removes a child from her home, thereby taking the child into its custody and care, the state has taken an affirmative act to restrain the child's liberty, triggering the protections of the Due Process Clause and imposing "some responsibility for the child's safety and general well being"; 2) because it would not have been apparent to a reasonable social worker in defendant's position that her actions violated the Fourteenth Amendment, she is entitled to qualified immunity; 3) prospective adoptive parents have no substantive due process right to the disclosure of a child's history of sexual abuse; and 4) district court's grant of defendants' motion for summary judgment on the state law claims for gross negligence against SCDSS is vacated and remanded for consideration of the applicability of section 15-78-60(25).

[03/04] Aills v. Boemi
In plaintiff's medical malpractice suit against defendant plastic surgeon arising out of negligence in connection with an elective surgical procedure for breast reconstruction, the judgment of the Second District Court of Appeal is quashed and remanded as the district court erred in reversing for a new trial on the basis of an improper argument by plaintiff's counsel during closing argument.

More...

Intellectual Property

[03/09] Richardson v. Stanley Works, Inc.
In an action for patent infringement relating to a design patent for a multi-function carpentry tool that combines a hammer with a stud climbing tool and a crowbar, a district court's finding of noninfringement is affirmed as the district court correctly construed the claim at issue and correctly determined that the patent was not infringed.

[03/08] Ajinomoto Co., Inc. v. Int'l Trade Comm'n
In plaintiffs' suit alleging violation of section 337 of the Tariff Act in the importation and sale of certain lysine feed products made by the methods claimed in their patents relating to improved methods of producing L-lysine with genetically engineered E-Coli bacteria, the International Trade Commission's determination of no section 337 violation is affirmed where: 1) the asserted claims of plaintiffs' '698 patent and '160 patents are invalid under 35 U.S.C. section 112 for failure to comply with the best mode requirement; and 2) plaintiffs' argument that the Commissioner erred in finding '698 patent is unenforceable due to inequitable conduct is waived.

[03/04] US v. Xu
Defendant's conviction for trafficking in counterfeit pharmaceutical drugs is vacated as to one count where a rational juror could not have found beyond a reasonable doubt that the Zyprexa mark, allegedly misappropriated by defendant, was registered on the USPTO's principal register.

[03/04] Tivo Inc. v. Echostar Corp.
In a patent infringement action against EchoStar, relating to the software component of plaintiff's patent that allows television users to simultaneously record and play broadcasts using what is commonly known as a digital video recorder (DVR), district court's decision finding defendants in contempt of a permanent injunction is affirmed where: 1) the district court did not abuse its discretion in its decision to hold contempt proceedings; 2) there was clear and convincing evidence before the district court to find that both types of EchoStar receivers continue to infringe and that it was not an abuse of discretion for the ocurt to find EchoStar in contempt of the infringement provision; and 3) given defendant's refusal to disable the DVR functionality in its existing devices and the fact that its original attempts to design around TiVo's patent were wholly unsuccessful, the district court had ample justification for its determination that court pre-approval of any new design-around effort was necessary to prevent future infringing activity.

[03/03] In re: Whirlpool Corp.
In a trademark infringement suit brought by LG Electronics against Whirlpool, relating to a dryer that uses steam to reduce wrinkles, Whirlpool's petition for a writ of mandate challenging the district court's order to disclose communications between its attorneys and its outside advertising agencies is denied as it failed to show both that the order will be effectively unreviewable if Whirlpool is forced to wait until the end of the case and also that the order is patently erroneous or usurpative in character. Furthermore, the Supreme Court held in Mohawk Indus., Inc. v. Carpenter, 130 S. Ct. 599 (2009), that rulings that allegedly infringe upon the attorney-client privilege are not appealable as collateral orders, and as such, the appeal must be dismissed for lack of jurisdiction.

[03/02] Davis v. Brouse McDowell, LPA
In plaintiff's legal malpractice suit claiming that defendants failed to timely file three patent applications related to a website-search engine, summary judgment in favor of the defendants is affirmed where: 1) the district court exercised proper jurisdiction over plaintiff's malpractice cause of action; 2) the court did not abuse its discretion in striking portions of the supplemental affidavit of plaintiff's patent law expert; and 3) plaintiff failed to introduce evidence sufficient to establish a genuine issue of material fact as to the patentability of her inventions.

[03/01] Comaper Corp. v. Antec, Inc.
In a patent infringement suit involving a patent directed to a cooling device designed to mount within the drive bay of a computer, district court's finding that defendant willfully infringed certain claims of plaintiff's patent, that certain independent claims were not invalid as obvious, and that certain dependent claims were obvious is affirmed in part, vacated in part and remanded where: 1) defendant's contention that a new trial is required because the district court's claim constructions were in error is rejected as the court's claim constructions were correct; but 2) the district court was required to grant a new trial because the jury's verdicts on obviousness were irreconcilably inconsistent.

More...

Legal Malpractice

[03/03] Willis v. Bender
In an action for lack of informed consent and medical malpractice, judgment for defendant is affirmed in part where there was no evidence, specifically expert testimony, that another physician was negligent and therefore no basis to hold defendant liable for his negligence. However, the judgment is reversed in part where defendant's alleged misrepresentations to plaintiff in response to her direct questions allegedly induced her to consent to the surgery and its risks, and under those circumstances, if proved, her consent could hardly be considered "informed".

[03/03] Oasis W. Realty, LLC v. Goldman
In an appeal involving defendants' anti-SLAPP special motion to strike (Code of Civil Procedure section 425.16) plaintiff-former client's suit for various causes of action including breach of fiduciary duty, arising from defendants' prior representation in connection with plaintiff's efforts to redevelop real estate it owned in Beverly Hills, trial court's conclusion that section 425.16 did not apply because the gravamen of the action was breach of an attorney's duties of loyalty and confidentiality is reversed as all causes of action in the complaint arose from acts in furtherance of protected activity, and plaintiff could not show a probability of prevailing at trial.

[02/26] Aills v. Boemi
In plaintiff's medical malpractice suit against a plastic surgeon for negligence in connection with a procedure of breast reconstruction, the decision of the second district court of appeal reversing a judgment in favor of plaintiff is quashed and remanded as the court erred in reversing for a new trial on the basis of an improper argument by plaintiff's counsel during closing argument.

[02/26] Deen v. Egleston
In a medical malpractice action, the denial of partial summary judgment for defendant is reversed where the district court, in striking down, under the Equal Protection Clause, a state statute that did not exempt the "legally incompetent" from the general two-year statute of limitations, overlooked the essential principle that matters of social and economic policy, particularly when they came to bear on the health and welfare of a state's citizens, were quintessentially legislative in nature.

[02/18] Medical Protective Co. v. Bubenik
In an action by an insurer seeking a declaration that it had no duty to pay a malpractice judgment, summary judgment for plaintiff is affirmed where the district court did not err in concluding that the malpractice defendant materially breached the cooperation clause in his insurance policy.

[02/11] Anderson v. Chikovani
In a medial malpractice action, defendant's motion to dismiss the appeal is denied as, where a party files a valid motion for new trial, and the trial court issues a timely order denying that motion but no one serves the order or notice of entry of that order, then the applicable deadline for filing the notice of appeal from the judgment is 180 days after entry of judgment.

More...

Patent

[03/01] Media Techs. Licensing, LLC. v. Upper Deck Co.
In a patent infringement suit involving patents related to memorabilia cards, district court's conclusion that the patents are invalid for obviousness is affirmed where: 1) defendants have met the burden of showing that it would have been obvious to one skilled in the art to attach a sports-related item instead of those items attached in the prior art references; and 2) secondary objective evidence also fails to establish non-obviousness.

[02/25] Trading Techs. Int'l, Inc. v. eSpeed, Inc.
In plaintiff's action for patent infringement for patents relating to software for displaying the market for a commodity traded in an electronic exchange, judgment of district court is affirmed where: 1) defendant's infringed the asserted claims of one patent with one accused service product, but not willfully; 2) the two other accused products did not literally infringe, and as such, plaintiff is precluded from asserting infringement under the doctrine of equivalents; 3) the on-sale bar of 35 U.S.C. section 102(b) does not apply; 4) there are no indefiniteness problems in the asserted claims; and 5) there is no finding of inequitable conduct during the prosecution of the patents-in-suit.

[02/24] In re Chapman
Decision of the US Patent and Trademark Office, Board of Patent Appeals and Inferences, finding that certain claims of an application directed at technology involving divalent antibody fragments were unpatentable as obvious, is vacated and remanded as the Board's opinion includes erroneous statements that are not harmless because they increase the likelihood that plaintiff was erroneously denied a patent on grounds of obviousness.

More...

Trade Dress

[09/16] Art Attacks Ink, LLC v. MGA Ent'mt. Inc.
In a copyright, trademark, and trade dress infringement action, judgment as a matter of law for defendant on copyright and trade dress infringement claims is affirmed where: 1) defendant did not timely move for judgment as a matter of law, but the time limit under Fed. R. Civ. P. 50(b) is not jurisdictional; and 2) plaintiff failed to demonstrate that defendant had access to plaintiff's copyrighted works or that plaintiff's trade dress had acquired secondary meaning.

[06/11] Philip Morris USA, Inc. v. King Mtn. Tobacco Co.
In a trademark infringement action based on allegedly infringing cigarette packaging being sold on the Internet, an Indian reservation and elsewhere, the District Court's order staying the action in favor of proceedings before a tribal court is reversed where the tribal court did not have colorable jurisdiction over a nonmember's claims for trademark infringement on the Internet and beyond the Indian reservation. (Amended opinion)

[11/25] Bd. of Supervisors for La. State Univ. Agric. & Mech. Coll. v. Smack Apparel Co.
In a trademark dispute alleging that defendant infringed trademarks by selling t-shirts with several universities' color schemes and other identifying indicia referencing the games of the schools' football teams, summary judgment for plaintiffs is affirmed where: 1) the color schemes had secondary meaning and, although unregistered, were protectible marks; 2) there was a likelihood of confusion connecting the marks and the universities themselves; 3) the marks at issue were nonfunctional and thus subject to Lanham Act protection; 4) defendants' use of the marks was not a nominative fair use; 5) the defense of laches did not apply; 6) actual confusion was not a prerequisite to an award of money damages; and 7) plaintiffs were not entitled to attorneys' fees. (Revised opinion)

[11/05] E.S.S. Entm't 2000, Inc. v. Rock Star Videos, Inc.
In an action brought by the operator of a strip club in Los Angeles against the producer of a video game in the "Grand Theft Auto" series claiming, inter alia, that the game's depiction of a strip club called the "Pig Pen" infringed its trademark and trade dress associated with the "Play Pen", summary judgment for defendant-game producer is affirmed where: 1) modification of plaintiff's trademark was not explicitly misleading and was thus protected by the First Amendment; and 2) the First Amendment defense applies equally to plaintiff's state law claims as to its Lanham Act claim.

[05/29] UT Lighthouse Ministry v. Found. for Apologetic Info. and Research
In an action claiming trademark infringement, unfair competition, and cybersquatting, summary judgment for defendant is affirmed where: 1) trademark infringement and unfair competition claims failed as plaintiff did not show that "Utah Lighthouse" was protectable, that defendant's use was in connection with any goods or services, and that defendant was likely to cause confusion among consumers as to the source of goods sold on its online bookstore; 2) defendant lacked a bad faith intent to profit from the use of plaintiff's trademark in several domain names under the Anti-Cybersquatting Protection Act (ACPA); and 3) defendant's website met safe harbor conditions of the ACPA since it was a parody.

[12/26] McNeil Nutritionals, Inc. v. Heartland Sweeteners, LLC
In a trade dress infringement action brought by the marketer of the artificial sweetener Splenda against defendants, who package and distribute sucralose as store brands to a number of retail grocery chains, alleging their product packaging is confusingly similar to Splenda's, denial of plaintiff's motion for a preliminary injunction is affirmed in part, but reversed in part as to certain boxes and bags where plaintiff demonstrated a likelihood of success on the merits with respect to the third element of trade dress infringement, as there was a likelihood of confusion between those products' trade dresses and the analogous Splenda trade dress.

More...

Trade Secrets

[02/12] Ansys, Inc. v. Computational Dynamics N. Am., Ltd.
In plaintiff's suit against its former employee and his new employer (a competitor) claiming breach of noncompetition and confidentiality clauses in the employee's employment contract, interference with contractual relations, misappropriation of trade secrets, and unfair trade practices, denial of plaintiff's request for preliminary injunction to enforce the provisions of a one-year noncompetition clause in the employment agreement is affirmed as the district court did not abuse its discretion by finding that plaintiff has failed to make a showing of likelihood of success on the breach of contract claim, or a likelihood of irreparable injury.

[12/29] Jasmine Networks, Inc. v. Sup. Ct.
In plaintiff's action under the California Uniform Trade Secrets Act claiming that the defendants misappropriated certain trade secrets belonging to plaintiff, trial court's dismissal of the complaint on the ground that plaintiff had forfeited its standing to maintain an action for misappropriation when it had gone through bankruptcy proceedings shortly after filing the complaint is reversed where: 1) a current ownership requirement is not supported by general principles of property or tort law; 2) existing authority imposes no "current ownership requirement" on trade secret plaintiffs; 3) adoption of a current ownership requirement in trade secrets cases is not warranted by analogy to trademark, patent, or copyright law; and 4) no policy concern preponderates in favor of current ownership requirement.

[12/03] Ultimax Cement Mfg. Corp. v. CTS Cement Mfg. Corp.
In a patent infringement action involving patents related to rapid-hardening, high-strength cement, summary judgments finding noninfringement and that no trade secret was violated is affirmed in part, dismissed in part, vacated in part, reversed in part, and remanded where: 1) district court's finding of noninfringement is vacated and remanded as the court erred in claim construction of the the term "soluble CaSo4 anhydride"; 2) district court's grant of summary judgment of laches is reversed and remanded relating to one patent as it was not clear that plaintiff knew or should have known of defendant's alleged infringement before it conducted discovery on another patent in 2002; 3) district court erred in granting summary judgment finding that one patent claim was indefinite; 4) plaintiffs' appeal with respect to one patent is dismissed as it waived the argument of its invalidity; 5) denial of plaintiffs' motion to amend their complaint is affirmed; 6) summary judgment finding no trade secret violations is affirmed; 7) the district court did not abuse its discretion in denying plaintiffs' motion to disqualify defendants' attorneys; and 8) the district court's decision on exceptional case status is vacated for further proceedings on remand.

[11/24] Standard Microsystems Corp. v. Winbond Elec. Corp.
In plaintiff's suit against a Taiwanese corporation and an Israeli corporation claiming that they misappropriated the design of a microchip used in manufacturing personal computers, trial court's entry of default judgment against defendants is reversed where: 1) undisputed facts plainly establish defendants' attorney's fault necessary to trigger a right to mandatory relief; 2) plaintiff's argument that relief was barred by Code of Civ. Proc. section 1008, which restricts motions for reconsideration and renewals of previously denied motions, is rejected; and 3) to the extent a literal application of section 1008 might conflict with the provisions of section 473(b), the latter must prevail.

[11/05] Perlan Therapeutics, Inc. v. Sup. Ct.
In plaintiff's case against the defendant for misappropriation of its trade secrets of an anti-viral protein based therapeutic used as a daily nasal spray for the prevention and treatment of the common cold, plaintiff's petition for a writ of mandate to compel the trial court to accept plaintiff's trade secret identification statement as sufficient and to allow it to commence discovery is denied where: 1) the trial court applied the correct legal standard to plaintiff's trade secret identification statement; and 2) there was a basis in the record to support the court's conclusion that the statement was not reasonably particular under the circumstances presented.

[10/27] Awuah v. Coverall N. Am, Inc.
In a class action lawsuit against defendants brought by their franchisees, defendants' interlocutory appeal seeking review of a discovery-related order by the district court is dismissed for want of a final judgment.

[10/05] Premium Mortgage Corp. v. Equifax, Inc.
In an action for misappropriation of trade secrets against credit reporting agencies engaged in the practice of permitting lenders competing with plaintiff to purchase pre-screened consumer reports containing "trigger leads" compiled by plaintiff, dismissal of the action is affirmed where: 1) the Fair Credit Reporting Act preempted state law claims based on pre-screened reports; and 2) plaintiff failed to identify the legal basis for defendants' alleged duty and obligation to maintain the confidentiality of trigger leads.

[09/21] Southwest Stainless, LP v. Sappington
In an action for breach of a noncompetition agreement restricting defendants' ability to work with competitors, judgment for plaintiff is affirmed in part where the district court properly distinguished in its findings of fact between plaintiff's general lost profits and profits lost on specific orders. However, judgment for plaintiff is reversed in part where certain information used by defendants did not qualify as a trade secret because plaintiff disclosed this information to its customers without reservation.

More...

Trademark

[01/05] Great Clips, Inc. v. Hair Cuttery of Greater Boston, LLC
In a trademark dispute between companies in the hair care industry involving a settlement agreement entered into nineteen years ago in which their predecessors stipulated to the withdrawal of the parties' respective claims and to not object further to the registration of the others' trademark, district court's grant of plaintiff's request for declaratory judgment is affirmed as, notwithstanding possible arguments on each side about potential confusion between their respective phrases, "Great Cuts" and "Great Clips", no evidence is offered that the parties sought only to allow each to register its mark but to reserve for future litigation the practical consequences of registration.

[12/23] In Re Sones
Decision of the Trademark Trial and Appeal Board, denying petitioner's registration application for the mark "One Nation Under God" for charity bracelets, is vacated and remanded as a picture is not a mandatory requirement for a website-based specimen of use, and the test for an acceptable website-based specimen, just as any other specimen, is simply that it must in some way evince that the mark is "associated" with the goods and services as an indicator of source.

[12/03] Starbucks Corp. v. Wolfe's Borough Coffee, Inc.
In a trademark infringement action by Starbucks Corp. regarding a competitor's use of the name "Charbucks," judgment for defendant is affirmed in part where: 1) the district court did not clearly err in finding that the Charbucks Marks were minimally similar to the Starbucks Marks; 2) the Charbucks line of coffee was marketed as a product of very high quality ? as Starbucks also purported its coffee to be ? which was inconsistent with the concept of tarnishment. However, the judgment is vacated in part where the district court needed to conduct further proceedings on the issue of whether Starbucks demonstrated a likelihood of dilution by "blurring" under federal trademark law.

[11/16] Lahoti v. VeriCheck, Inc.
In an action seeking a declaratory judgment that plaintiff's acquisition of the vericheck.com domain name did not constitute trademark infringement or cybersquatting, judgment against plaintiff is vacated and remanded where the district court's factual decision that the "VeriCheck" mark was a distinctive, legally protectable mark under the ACPA and federal trademark law was based in part on reasoning contrary to federal trademark law and based in part on reasoning that could support the district court's conclusion.

[11/13] Kim Seng Co. v. Great Am. Ins. Co. of New York
In a dispute over whether plaintiff's insurer had a duty to defend and indemnify plaintiff in a trademark infringement action under an "advertising injury" policy, summary judgment for insurance company is affirmed as the prior publication exclusion in the policy bars coverage for trademark infringement in this case.

More...

Associated Press text, photo, graphic, audio and/or video material shall not be published, broadcast, rewritten for broadcast or publication or redistributed directly or indirectly in any medium. Neither these AP materials nor any portion thereof may be stored in a computer except for personal and non-commercial use. Users may not download or reproduce a substantial portion of the AP material found on this web site. AP will not be held liable for any delays, inaccuracies, errors or omissions therefrom or in the transmission or delivery of all or any part thereof or for any damages arising from any of the foregoing.

News

Litigation

Personal Injury

Real Estate

Securities Litigation

White Collar Crime

Case Summaries

Attorney's Fees

Banking Law

Civil Procedure

Commercial Law

Construction

Contracts

Copyright

Criminal Law & Procedure

Ethics & Disciplinary

Evidence

Injury & Tort Law

Intellectual Property

Legal Malpractice

Patent

Trade Dress

Trade Secrets

Trademark