Texas Supreme Court Restricts Scope of Common-Law Nuisance

New Faulk photoFeatured Expert Column − Toxic Tort and Environmental Litigation

Richard O. Faulk, a Partner with Alexander Dubose Jefferson & Townsend LLP serving clients in Texas and Washington DC.

In a unanimous decision, the Texas Supreme Court recently clarified key points regarding the common-law doctrine of private nuisance.  See Crosstex North Texas Pipeline v. Gardiner.1 Although the doctrine of public nuisance has given rise to a great deal of litigation over the past decades,2 private nuisance cases have been considerably less conspicuous.  The distinction between the two torts is based not upon the defendant’s conduct, but rather on the nature of the interest the conduct affects.  Historically, a public nuisance is “an act or omission ‘which obstructs or causes inconvenience or damage in the exercise of rights common to all,”3 while a private nuisance is a condition that substantially interferes with the use and enjoyment of land causing unreasonable discomfort or annoyance to persons of ordinary sensibilities attempting to enjoy it.”4 Continue reading

Seventh Circuit Rejects Disclosure-Only Settlement in Merger Tax Suit, Embracing Delaware Chancery Court’s “Trulia” Decision

ARickeyK. Whittaker Guest Commentary

By Anthony Rickey, a solo practitioner at Margrave Law LLC in Georgetown, DE, and Keola R. Whittaker, an Associate with McGuireWoods LLP in its Los Angeles, CA office.

U.S. Court of Appeals for the Seventh Circuit Judge Richard Posner’s criticism of meritless settlements in In re Walgreen Co. Stockholder Litigation, (Aug. 10, 2016) will cheer hearts skeptical of the utility of mergers-and-acquisitions (M&A) class actions.  The opinion reversed and remanded a district court’s approval of a disclosure settlement arising out of the merger of Walgreen Co. and Alliance Boot GmbH.   Judge Posner explained why each of the six supplemental disclosures offered to the class as settlement consideration were, variously, “worthless,” “provided no new information,” or “could be derived by simple arithmetic from data in the proxy statement. . . .”   After reversing the trial court, the appellate court suggested that the class counsel who had supported such a settlement, and sought $370,000 in fees, had not adequately represented the class, and advised the district court on remand to seriously consider dismissing the suit or appointing new class counsel.  Continue reading

‘In re Nickelodeon’: Third Circuit’s Post-‘Spokeo’ Standing Analysis Flawed

nickBy Logan Cochran, Judge K.K. Legett Fellow at Washington Legal Foundation and a rising third-year student at Texas Tech University School of Law.

For the second time in less than a year, the U.S. Court of Appeals for the Third Circuit has ruled on minor consumers’ claims that Google and Viacom had “unlawfully collected personal information about them on the Internet, including what webpages they visited and what videos they watched on Viacom’s websites.”  In re Nickelodeon Consumer Privacy Litigation.  Although several issues raised by the plaintiffs substantially overlapped with the Third Circuit’s November 2015 decision In re Google Inc. Cookie Placement Consumer Privacy Litigation, two claims involved questions of first impression for the court: (1) a violation of the federal Video Privacy Protection Act (VPPA), and (2) an alleged invasion of privacy under New Jersey law.  Continue reading

Second Circuit Upholds Decertification of Class Action After Jury Award

Cruz-Alvarez_FFeatured Expert Contributor — Civil Justice/Class Actions

Frank Cruz-Alvarez, a Partner in the Miami, FL office of  Shook, Hardy & Bacon L.L.P. with Rachel Forman, an Associate with the firm.

On July 15, 2016, the U.S. Court of Appeals for the Second Circuit in Mazzei v. Money Store (2016 U.S. App. LEXIS 12994) affirmed a district court’s decision, issued after a jury verdict for the plaintiff, to decertify the underlying class action. Based on its analysis of Federal Rule of Civil Procedure 23’s plain language and the Seventh Amendment, the Second Circuit confirmed that so long as final judgment has not been entered, district courts have the authority to decertify a class post-verdict.  Id. at *3.

The plaintiff had entered into a loan agreement with The Money Store and defaulted on the loan, causing the defendant servicer to accelerate the loan, and commence foreclosure proceedings.  Id. at *4.  Ultimately, the plaintiff paid the balance of the loan and certain fees, including fees incurred after acceleration.  Id. at *4–5.  The plaintiff subsequently sued the defendants, purporting to represent a putative class of borrowers, for breach of contract based on the defendants’ alleged violation of the mortgage agreement by imposing post-acceleration late fees.  Id. at *5.  The district court certified a class that included “all borrowers who signed form loan agreements on loans which were owned or serviced by the defendants and who … were charged … (A) late fees after the borrower’s loan was accelerated, and where the accelerated loan was paid off.”  Id. at *5–6. Continue reading

California Appeals Court Protects Outside Counsel’s Factual Investigation as Privileged

City of Petaluma

City of Petaluma

In early June, a California court of appeal held in City of Petaluma v. Waters that the report resulting from a fact-finding investigation conducted by outside counsel for the City of Petaluma’s (the City) City Attorney was protected by attorney-client privilege and therefore undiscoverable.  The holding is notable because the court refused to read the privilege so narrowly as to only protect legal opinions and would not further encroach upon the outside-counsel relationship. Continue reading

Will Illinois State AG’s Action Put an End to Unabashed Abuse of State’s False Claims Law?

package deliveryThis past May, a Cook County Associate Judge dismissed 201 Illinois False Claims Act (IFCA) cases at the request of Illinois Attorney General Lisa Madigan. The state’s action is an encouraging, albeit overdue, development in a long-running legal saga where one enterprising lawyer has harnessed the state’s enforcement power to pursue personal financial gain that provides little or no benefit to the public.

Much like its federal equivalent, the IFCA allows private citizens (relators) to file fraud claims on behalf of the state. The fraud must be based on a false claim, typically a violation of a law or regulation. If successful, relators can collect up to 30% of the award plus attorneys’ fees. Continue reading

When Expert Testimony “Fits” with Causation

Tager_09181Featured Expert Column: Judicial Gatekeeping of Expert Evidence

By Evan M. Tager, Mayer Brown LLP, with Carl J. Summers, Mayer Brown LLP

When there are multiple cumulative causes of an injury, an expert witness’s testimony attributing specific causation to one of those causes must employ a standard that at least crosses the threshold necessary to establish causation under the law. Otherwise, the testimony is unhelpful to the jurors—indeed, it may affirmatively mislead them. This principle was front and center in a decision released by the Georgia Supreme Court on July 5. In Scapa Dryer Fabrics v. Knight, the court held that an expert witness’s testimony must “fit” the pertinent causation inquiry for asbestos cases under Georgia state law.

In the late 1960s and early 1970s, the plaintiff worked at defendant Scapa Dryer Fabrics’ manufacturing facility as an independent contractor. During that time, the pipes and boilers in the defendant’s manufacturing facility were insulated with material containing asbestos, and the defendant used yarn containing asbestos to make textiles. Continue reading