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.

*The views and opinions expressed in this article are those of the author and do necessarily represent or reflect the views of Alexander Dubose Jefferson & Townsend LLP.

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

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

October Term 2015 Administrative-Law Rulings Heighten Significance of Next Supreme Court Appointment

 

New Faulk photoFeatured Expert Column − Toxic Tort and Environmental Litigation

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

*The views and opinions expressed in this article are those of the author and do necessarily represent or reflect the views of Alexander Dubose Jefferson & Townsend LLP.

Since the United States Supreme Court’s Skidmore v. Swift & Co., and Bowles v. Seminole Rock & Sand Co. rulings, the role of judicial deference in administrative law has expanded exponentially.  For example, agencies now receive deference, under the Court’s Auer v. Robins decision, even if their own drafting creates the very vagaries and ambiguities that require interpretation.  Courts also defer to agencies’ interpretations of statutes they are charged to administer (Chevron U.S.A. Inc. v. NRDC) and to scientific conclusions reached in the course of the regulatory process (Baltimore Gas & Electric Co. v. NRDC).  By indulging these perspectives, the courts necessarily surrender their constitutional authority to “say what the law is,”1 and contribute to an arrogation of administrative power that threatens not only our constitutional separation of powers, but also their balance.2

Regulatory agencies have grown into what some call a “fourth branch” of our federal government.3 The threat posed by this de facto branch, also known as the “Administrative State”4 or, more colorfully, our “Junior Varsity Congress,”5 has attracted the growing attention of a number of Supreme Court justices.  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

Data-Breach Class Actions Feel the Effects of “Spokeo v. Robins”

supreme courtBy Jeryn Crabb, Judge K.K. Legett Fellow at Washington Legal Foundation and a rising third-year student at Texas Tech University School of Law

With Spokeo v. Robins the US Supreme Court clarified the requirements necessary for plaintiffs to establish standing in federal court.  Federal district courts are only beginning to explore those parameters, but the early applications are generally encouraging in one key area: data-breach class-action litigation.

In Spokeo, Mr. Robins alleged that Spokeo, a “people search engine,” violated the Fair Credit Reporting Act by inaccurately reporting that he was married, employed, and in good financial standing.  The Court held that a plaintiff bringing suit under a federal law that defines a statutory violation as harm must allege the existence of a concrete and particularized injury in order to have standing to sue. Continue reading

North Carolina Supreme Court Grudgingly Adopts “Daubert” Standard for Expert Evidence Review

Tager_09181Featured Expert Column: Judicial Gatekeeping of Expert Evidence

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

Five years ago, the North Carolina General Assembly amended the North Carolina Rules of Evidence to mirror the Federal Rules of Evidence’s approach to expert testimony. In North Carolina v. McGrady, __ S.E.2d __, 2016 WL 3221096 (June 10, 2016), the Supreme Court of North Carolina finally confirmed that, as a result of the General Assembly’s adoption of language that mirrors that of the federal rules, the Daubert standard now governs the admission of expert testimony under state law.

The US Supreme Court first adopted the Daubert standard in 1993, interpreting Federal Rule of Evidence 702 to bestow a “gatekeeping role” on district courts. Shortly after Daubert, the Court elaborated on this standard in General Electric Co. v. Joiner and Kumho Tire Co. v. Carmichael. And in 2000, the Supreme Court adopted amendments to Rule 702 that, while not expressly mentioning Daubert in their text, were clearly intended to formally embed the Daubert standard in the Federal Rules of Evidence. Continue reading