Case Notes

Antitrust

• » Tripple Tee Golf, Inc. v. Nike, Inc.
  Nos. 05-10934, 05-11442, 2007 WL 1128138 (5th Cir. (Tex.) Apr. 17, 2007)
  The Fifth Circuit considers an antitrust action involving the alleged misappropriation of trade secrets.
• » Merriman v. Crompton Corp.
  146 P.3d 162 (Kan. 2006)
  Kansas Supreme Court finds Kansas long arm statute gives jurisdiction over out-of-state tortious acts with injury, economic or physical, in Kansas, and adopts the civil conspiracy theory to assert jurisdiction over those whom jurisdiction would otherwise be lacking.
• » In re Canadian Import Antitrust Litigation
  No. 05-3873 (8th Cir. November 30, 2006)
  When sold to pharmacies, Canadian drugs are branded “Pr” not “Rx only” as required under United States law.  Because of this mislabeling, the importation of Canadian drugs is prohibited by the Federal Food, Drug, and Cosmetic Act (FFDCA)

Arbitration

• » Downer v. Siegel
  489 F.3d 623 (5th Cir. (La.) 2007)
  The Fifth Circuit considers arbitration concepts, including whether an arbitrator exceeded his authority.
• » Apache Bohai Corp. LDC v. Texaco China BV
  480 F.3d 397 (5th Cir. (Tex) 2007)
  The Fifth Circuit considers arbitration concepts, including whether an arbitrator exceeded his authority.
• » Fair v. Bakhtiari
  40 Cal. 4th 189, 147 P.3d 653 (2006)
• » Tittle v. Enron Corp., et al.
  463 F.3d 410 (5th Cir. 2006)
  The Fifth Circuit enunciates principles utilized in determining the arbitrability of specific issues.
• » Albert M. Higley Company v. N/S Corporation
  No. 05-3393 (6th Cir. April 17, 2006)
  An arbitration provision allowing a primary contractor sole discretion about whether to arbitrate or litigate a dispute permitted the contractor to select litigation to resolve the contract dispute.
• » Laws v. Morgan Stanley Dean Witter
  452 F.3d 398 (5th Cir. 2006)
  The Fifth Circuit addresses whether an arbitration panel committed misconduct when it denied the appellant’s request for a continuance and articulated applicable criteria.

Civil Conspiracy

• » Borsellino v. Goldman Sachs Group, Inc.
  No. 06-1384 (7th Cir. Feb. 20, 2007)
  The heightened pleading requirements outlined in Rule 9(b), apply to all averments of fraud, not just claims of fraud.
• » Sunbelt Rentals, Inc. v. Head & Engquist Equipment LLC | 
  No. 00-CVS-10358 (Mecklenburg Co. Sup. Ct. May 2, 2003)
  Conspiring to raid competitor’s employees, customer relationships, and trade secrets led to judgment for unfair competition, misappropriation of trade secrets, and civil conspiracy.

Civil Procedure

• » Merriman v. Crompton Corp.
  146 P.3d 162 (Kan. 2006)
  Kansas Supreme Court finds Kansas long arm statute gives jurisdiction over out-of-state tortious acts with injury, economic or physical, in Kansas, and adopts the civil conspiracy theory to assert jurisdiction over those whom jurisdiction would otherwise be lacking.
• » Cox Nuclear Pharmacy, Inc. v. CTI, Inc.
  Case No. 05-14713 (11th Cir. Feb. 13, 2007)
  Eleventh Circuit holds that fraud claim failed to the extent that these claims were dependent on the existence of an agreement that was barred by the statute of frauds; sua sponte summary judgment order appropriate where record sufficiently developed.
• » Pritchett v. Pound
  No. 05-41445, 2006 WL 3704859 (5th Cir. (Tex.) Dec. 18, 2006)
  The Fifth Circuit holds that employer owns copyright to publication written by employee even though it mistakenly designated work as “not for hire” in a copyright registration form.
• » Fiber Systems Int’l, Inc. v. Roehrs
  No. 05-41213, 2006 WL 3378403 (5th Cir. (Tex.) Nov. 22, 2006)
  The Fifth Circuit holds that the Computer Fraud and Abuse Act provides a basis for civil liability.
• » Fair v. Bakhtiari
  40 Cal. 4th 189, 147 P.3d 653 (2006)
• » More Civil Procedure Case Notes

Contracts & Contract Breach

• » Cedyco Corp. v. Petroquest Energy, LLC
  Nos. 05-20493, 05-20891, 2007 WL 2333192 (5th Cir. (Tex.) Aug. 17, 2007)
  The Fifth Circuit addressed conditions precedent in a breach of contract matter.
• » Rawe v. Liberty Mutual Fire Insurance
  No. 05-5485 (6th Cir. September 1, 2006)
  Accident victim who was injured in one-car accident brought first and third-party bad faith claims against automobile insurer for its conduct regarding settlement of her bodily injury liability and underinsured motorist (UIM) claims.
• » Johnson Controls, Inc. v. Jay Industries, Inc.
  Nos. 05-1826, 05-1879 (6th Circuit August 18, 2006)
  Seller brought action against buyer to recover for breach of contract and unjust enrichment for failing to eliminate charge for expendable packaging and charge for returnable packaging.
• » Park v. Hyatt Corp.
  436 F. Supp. 2d 60 (D.D.C. 2006)
  The District Court of D.C. denies a motion to dismiss a claim for tortious interference with contract, finding that the complaint stated a tortious interference claim where it alleged that a hotel forced organizers of a party to breach their contracts with the party’s attendees by failing to provide the promised accommodations for the party.
• » Texas v. American Tobacco Co., et al.
  No. 05-40671, 2006 WL 2522411 (5th Cir. (Tex.) Sept. 1, 2006)
  The Fifth Circuit holds that a court interpreting an ambiguous contract may consider parol evidence when the ambiguity is latent rather than patent.
• » More Contract Breach Case Notes

Damages

• » Philip Morris v. Williams
  05-1256 (U.S. Feb. 20, 2007)
  U.S. Supreme Court further defines the constitutional limits on punitive damages.
• » Dunkin’ Donuts, Inc. v. Arkay Donuts, LLC
  2006 U.S. Dist. LEXIS 58490 (D.N.J. August 21, 2006)
  The District Court of New Jersey sides with the majority of circuit courts holding that a district court has authority to amend a damages award sua sponte under Federal Rule of Civil Procedure 60(b).
• » Blase Industries Corp. v. Anorad Corporation, et al.
  442 F.3d 235 (5th Cir. 2006)
  Employer may not recover lost profit damages arising from loss of potential earnings of an at-will employee.
• » More Damages Case Notes

Defamation

• » Kirch v. Liberty Media Corp.
  449 F.3d 388 (2d Cir. June 5, 2006)
  This case involved claims by the founder of a prominent group of German media entities and its exclusive North American agent based on an alleged conspiracy to destroy the KirchGroup.
• » Shrout v. The TFE Group | 
  Case No. 2004-CA-000834-MR (Ky. App. April 1, 2005)
  Shrout, a commercial truck driver, was fired by his employer, The TFE Group, for failing a mandatory drug test. However, the drug test result was inaccurate – Shrout’s use of legal over-the-counter medications and the laboratory’s improperly handling of his sample resulted in a false positive finding. Shrout then sued TFE for wrongful discharge and for defamation.

Discovery

• » May v. Pilot
  2006 WL 3827511 (S.D. Ohio Dec. 2006)
  Spoliation sanctions appropriate against Defendant where it failed to produce and preserve relevant evidence in Plaintiff’s wrongful termination suit.

Economic Loss Rule

• » Alejandre v. Bull
  159 Wn.2d 674, 153 P.3d 864
  The Washington State Supreme Court recently reaffirmed the Economic Loss Doctrine as a bar to misrepresentation claims where the plaintiff’s loss is purely financial. The case arose from a residential real estate dispute in which the seller allegedly failed to disclose defects in a septic system.

Evidence

• » Cottman Transmission Systems v. McEneany
  Civil Action No. 05-6768, 2007 WL 210094 (E.D. Pa. Jan. 19, 2007)
  Applying the gist of the action doctrine and the parol evidence rule, the court granted summary judgment on counterclaims asserted by defendant/franchisee against plaintiff/franchisor.

Fiduciary Duty

• » DiCarolo v. St. Mary Hospital | NEW
  2008 U.S. App. LEXIS 13313 (3rd Cir. June 24, 2008)
  The Third Circuit holds that, under New Jersey law, a hospital does not owe a fiduciary duty to patients with respect to its billing practices.
• » Fraud/Breach of Fiduciary Duty Claim Against Loan Broker | 
  Ellipso, Inc. v. Mann, 541 F. Supp. 2d 365 (D.D.C. 2008)
  The D.C. district court denies summary judgment on a fraud claim, finding that the defendant’s execution of a loan without disclosing that the broker responsible for arranging the deal owned a share in the defendant was a false representation, but grants summary judgment on a fiduciary duty claim, holding that a creditor ordinarily has no fiduciary obligation to a debtor.
  [See also: Court Opinion | PDF]
• » N. Am. Catholic Educ. Programming Found., Inc. v. Gheewalla
  No. 521,2006, 2007 WL 1453705 (Del. May 18, 2007)
  Creditors of an insolvent corporation or a corporation operating in the zone of insolvency cannot bring a direct breach of fiduciary duty action against that corporation’s directors.
• » Krahmer v. Christie’s Incorporated
  903 A.2d 773 (Del. Ch. 2006), affirmed by 2007 Del. LEXIS 177 (Apr. 25, 2007)
  In Delaware, the inherently unknowable injury rule does not toll the statute of limitations for claims of fraud or mistake where an auction house unknowingly sells a fake work of art.
• » More Fiduciary Duty Case Notes

Fraud

• » Krahmer v. Christie’s Incorporated
  903 A.2d 773 (Del. Ch. 2006), affirmed by 2007 Del. LEXIS 177 (Apr. 25, 2007)
  In Delaware, the inherently unknowable injury rule does not toll the statute of limitations for claims of fraud or mistake where an auction house unknowingly sells a fake work of art.
• » Cox Nuclear Pharmacy, Inc. v. CTI, Inc.
  Case No. 05-14713 (11th Cir. Feb. 13, 2007)
  Eleventh Circuit holds that fraud claim failed to the extent that these claims were dependent on the existence of an agreement that was barred by the statute of frauds; sua sponte summary judgment order appropriate where record sufficiently developed.
• » Union Planters Bank, N.A. n/k/a Regions Bank v. Continental Casualty Co., et al.
  No. 05-6094/6095 (6th Cir. February 27, 2007)
  Bank that suffered multi-million dollar loss arising from mortgage lender’s fraudulent acts filed declaratory judgment against its primary insurance carrier and its three excess coverage carriers for a declaration of rights and obligations under the policies.
• » Rawe v. Liberty Mutual Fire Insurance
  No. 05-5485 (6th Cir. September 1, 2006)
  Accident victim who was injured in one-car accident brought first and third-party bad faith claims against automobile insurer for its conduct regarding settlement of her bodily injury liability and underinsured motorist (UIM) claims.
• » Moross Ltd. Partnership v. Fleckenstein Capital, Inc.
  Nos. 05-2280/2312 (6th Cir. October 24, 2006)
  Investor must demonstrate that manager engaged in “cherry-picking”to support investor’s claim of violation of Michigan’s Uniform Securities Act, fraud, and breach of fiduciary duty.
• » More Fraud Case Notes

Insurance Coverage

• » American Economy Ins. Co. v. Jackson
  No. 06-2728 (8th Cir. February 14, 2007)
  The Eighth Circuit conducts a de novo review and affirms district court’s grant of summary judgment to insurer finding that skilled nursing administrator exercised her professional judgment in determining whether to turn on the facility’s air conditioning and, therefore, policy exclusion for indemnity applied.

Jurisdiction

• » The Board of Regents of the University of Texas System v. Nippon Telephone & Telegraph Corp.
  478 F.3d 274 (5th Cir. (Tex.) 2007)
  The Fifth Circuit addresses subject matter jurisdiction and foreign-sovereign immunity matters.
• » Moncrief Oil Int’l, Inc. v. OAO Gazprom
  481 F.3d 309 (5th Cir. (Tex.) 2007)
  The Fifth Circuit addressed allegations of lack of personal jurisdiction in a breach of contract matter.

Law of the Case

• » Hall v. White, Getgey, Meyer Co.
  465 F.3d 587 (5th Cir. 2006)
  The Fifth Circuit addresses the law of the case doctrine coupled with the concepts of pre- and post-judgment interest.

Remedies

• » Dunkin’ Donuts, Inc. v. Arkay Donuts, LLC
  2006 U.S. Dist. LEXIS 58490 (D.N.J. August 21, 2006)
  The District Court of New Jersey sides with the majority of circuit courts holding that a district court has authority to amend a damages award sua sponte under Federal Rule of Civil Procedure 60(b).
• » LJL Transportation, Inc. v. Pilot Air Freight Corp.
  905 A.2d 991 (Pa. Super. Ct. 2006)
  A party to a franchise contract has no absolute right to avail itself of a cure provision in the contract if the was conduct dishonest and the breach egregious.
• » Albert M. Higley Company v. N/S Corporation
  No. 05-3393 (6th Cir. April 17, 2006)
  An arbitration provision allowing a primary contractor sole discretion about whether to arbitrate or litigate a dispute permitted the contractor to select litigation to resolve the contract dispute.
• » Touloumes, Touloumes, and 31 S. Baltimore Inc. d/b/a Holly Inn v. E.S.C. Inc.
  899 A.2d 343 (Pa. 2006)
  Pennsylvania Supreme Court clarifies that Rule 238 delay damages are not available in breach of contract actions involving damage to property.
• » P & O Nedlloyd, Ltd. v. Sanderson Farms, et al.
  2006 WL 2483520 (8th Cir. 2006)
  In a split decision, the Eighth Circuit allowed a seller’s insurer to avoid coverage for loss cargo because of C.I.F. shipping terms in the sales contract.

Tortious Interference

• » Ali v. Shaw
  No. 06-1384 (7th Cir. Feb. 20, 2007)
  The heightened pleading requirements outlined in Rule 9(b), apply to all averments of fraud, not just claims of fraud.
• » Borsellino v. Goldman Sachs Group, Inc.
  No. 06-1800 (7th Cir. Mar. 23, 2007)
  An at-will employee who is terminated may have a tort action against a third-party who intentionally interferes with the employment relationship, but not against the employer or its agents.
• » Park v. Hyatt Corp.
  436 F. Supp. 2d 60 (D.D.C. 2006)
  The District Court of D.C. denies a motion to dismiss a claim for tortious interference with contract, finding that the complaint stated a tortious interference claim where it alleged that a hotel forced organizers of a party to breach their contracts with the party’s attendees by failing to provide the promised accommodations for the party.
• » Hawaii Medical Association v. Hawaii Medical Service Assoc., Inc.
  2006 Haw. LEXIS 464 (Hawaii 2006)
  HMA alleged that HMSA tortiously interfered with the physicians’ prospective economic advantage.
• » More Tortious Interference Case Notes

Trade Secrets, Non-Compete Agreements

• » Misappropriation of Trade Secrets; Statute of Limitations |  
  New Media Strategies, Inc. v. Pulpfree, Inc., 941 A.2d 420 (D.C. 2008)
  The D.C. Court of Appeals reverses a grant of summary judgment on statute of limitations grounds in a misappropriation of trade secrets action, finding the record unclear as to whether the plaintiff knew at the time of misappropriation that the defendant planned to use the plaintiff’s trade secrets.
  [See also: Court Opinion | PDF]
• » General Reinsurance Corp. v. Arch Capital Group et al
  No. X05-FST-CV-4011668-S (Superior Court, October 17, 2007)
  In the recent Connecticut state trial court case, the court considered claims for misappropriation of trade secrets, breach of fiduciary duty and tortious interference with business relations brought against four former top executives of the plaintiff and their new employer.
• » Tripple Tee Golf, Inc. v. Nike, Inc.
  Nos. 05-10934, 05-11442, 2007 WL 1128138 (5th Cir. (Tex.) Apr. 17, 2007)
  The Fifth Circuit considers an antitrust action involving the alleged misappropriation of trade secrets.
• » Fiber Systems Int’l, Inc. v. Roehrs
  No. 05-41213, 2006 WL 3378403 (5th Cir. (Tex.) Nov. 22, 2006)
  The Fifth Circuit holds that the Computer Fraud and Abuse Act provides a basis for civil liability.
• » Canadian Commercial Corp. v. Dep’t of the Air Force
  2006 U.S. Dist. LEXIS 53506 (D.D.C. Aug. 3, 2006)
  The D.C. Circuit prevents the Air Force from releasing pricing information in a “reverse FOIA” action because of trade secrets and confidential information under FOIA Exemption 4; however, the court allowed disclosure of the plaintiffs’ hourly labor rates.
• » Action Tapes, Inc. v. Kelly Mattson dba Kelly J's New Home Servicing Center
  2006 WL 2483217 (8th Cir. 2006)
  In Action Tapes, the Eighth Circuit addresses the unique control provided to properly registered, computer program copyright owners under the Computer Software Rental Amendment Act of 1990, 17 U.S.C. § 109(a)
• » More Trade Secrets Case Notes

Unfair Trade Practices

• » Harvey v. Great Seneca Financial Corporation
  No. 05-3870 (6th Cir. July 6, 2006)
  Consumer sued debt collector and collector's law firm, alleging filing of debt-collection suit without the means of proving the existence, amount, or ownership of debt, in violation of Fair Debt Collection Practices Act (FDCPA).
• » Rawe v. Liberty Mutual Fire Insurance
  No. 05-5485 (6th Cir. September 1, 2006)
  Accident victim who was injured in one-car accident brought first and third-party bad faith claims against automobile insurer for its conduct regarding settlement of her bodily injury liability and underinsured motorist (UIM) claims.
• » McGlawn v. Pennsylvania Human Relations Commission
  891 A.2d 757 (Pa. Commw. 2006)
  The fiduciary duties of mortgage brokers include ensuring that potential borrowers are not completely unable to pay back debt. Pennsylvania Human Relations Act (“PHRA”) prohibits reverse redlining by mortgage brokers.
• » More Unfair Trade Practices Case Notes