Fifth Circuit: Transverse v. IA Wireless Srv

 

Appellate holding that a party is a prevailing party under a statute with a compulsory fee award becomes law of the case; the district court can't then deny an award completely for lack of sufficient segregation, but must rather determine, based on the evidence at hand, the appropriate level of fees attributable to the relevant action.

Plain error for the district court to apply the law of the forum, where the choice of law provision was clear, aside from a single specific instance referencing mediation within the forum -- this instance supplies only a procedural law.  Since the chosen foreign law requires all fee awards to be authorized by statute or contract, and the foreign law has no parallel fee shifting statute, error for the court to have shifted fees under the statute.

Absent a damages award or equitable or injunctive relief, prevailing party status is unavailable for purposes of a fee award, even if the court explicitly recognized the breach of the relevant obligaiton.

Transverse v. IA Wireless Srv

Eighth Circuit: Tom Dunne, Jr. v. Resource Converting, LLC

 

Jury's award of punitive damages without compensatory damages in a suit seeking return of a 400K investment necessarily found that while there had been an injury, no compensatory damages were warranted.  A lack of compensatory damages when awarding punitive damages does not offend the state's law, as establishment of damages is different than award of damages.  Additur in this situation would be unconstitutional.

Criminal fines for correlative conduct cannot be used to establish disproportionality of award.

Court did not abuse discretion in holding that the claim at law precluded equitable redress for the lost funds.

Court's reduction of requested fees was valid under governing state law; similar reduction in costs was valid under governing federal law.

Court erred by applying federal law to claim preclusion; the appropriate law is the law of the forum in which the first decision was made.

Economic loss doctrine, under the law of the state, would not bar claims for fraudulent and negligent misrepresentation. 

Tom Dunne, Jr.  v.  Resource Converting, LLC

Second Circuit: Fund Liquidation Holdings LLC v. Bank of America Corp.

 

The notice of appeal properly identified the party taking the appeal, the orders that were the subject of the appeal, and the court to which the appeal was being taken; the jurisdictional element of the rules of appeal were satisfied, and since notice was given of intent to appeal all orders, the description of the appellant in the caption as successor in interest to an entity that only accounted for some of the claims was excusable.

As assignment of claim doesn't undo an injury, the claim filed by an entity that had already assigned the interest had sufficient Article III standing; assignment of claim is distinct from grant of power of attorney, which would trigger a prudential limitation on standing.

While choice of law for corporations usually looks to the location of the business, choice of law for partnerships looks to the law of the forum.  Questions of state law can be dispositive in the federal standing inquiry.

Although legal capacity of parties isn't a jurisdictional element in standing, existence of the entity is, and since the jurisdiction provided for no wind-up time, the non-existent parties did not have standing at the time the suit was filed.

A suit filed by a non-existent entity is not a nullity; so long as there is a real party in interest willing to join the suit at the time the suit is filed and the real party in interest ratifies, is substituted, or is joined within a reasonable time, there is sufficient subject matter jurisdiction for the action at the time of filing.  Since procedural reforms have allowed for nominal parties, this doesn't offend the Constitution.  Court retains the right under the rules to deny joinder for equitable reasons. Circuit split flagged on the nullity doctrine.

Equitable tolling is available for new plaintiffs joined to existing class actions.

Fund Liquidation Holdings LLC v. Bank of America Corp.

Second Circuit: Kinsey v. New York Times Co.

 

Under the state's conflicts rules, since the defamation plaintiff is domiciled in a state other than the district containing the city in which the speech occurred and in which the employment damages were sustained, the state with the strongest interest in the litigation was instead a third forum, the state in which the national newspaper is domiciled, and from which it emanated.

Since the context and structure of the quoted litigation affidavit established that the language was taken from a judicial proceeding, the state's statutory absolute privilege for reports of judicial proceedings applies.

Kinsey v. New York Times Co.

Fifth Circuit: Six Dimensions, Incorporated v. Perficient, Inc.

 

District court "misapplied" its discretion by recognizing two contracts in its holding, but only reversing its holding as to one on the motion to reconsider due to the fact that the other party had not argued the second contract; the other party was not sufficiently put on notice by one sentence mentioning the agreement in a brief.

Statute's categorical bar on contractual restrictions on subsequent employment, followed by closely defined exceptions, creates a presumption that the statute ratifies the common law antipathy to such restrictions, rather than a rule of reason.

State consumer protection law in the state law elected in the contract doesn't apply, as there is a common law presumption against its extraterritorial exception, and no conduct harming consumers occurred in the state.

Continued possession of potential trade-secret materials from prior employer insufficient to establish acquisition under the law of the state.

Six Dimensions, Incorporated v. Perficient, Inc.

Fifth Circuit: ATOM Instrument Corporation, et al v. Petroleum Analyzer

 

District Court's interpretation of the terms of the arbitral agreement enjoining use of the technology and methods in a patent application is reviewed for plain error, as the reviewing court must make factual determinations as to whether the uses are sufficiently similar.

District court's restatement of the arbitral award did not substantially alter the law of the case.

Fees incurred prior to the filing of claim can be recovered under a fee-shifting statute where they are an attempt to resolve a threatened claim.

Court reasonably found fees to be nonsegregable as they generally advanced the litigation position.

State rules requiring party to seek contingent appellate fee award in the trial court are procedural, so the federal rule allowing award of fees by the reviewing court prevails.

ATOM Instrument Corporation, et al v. Petroleum Analyzer

First Circuit: Waithaka v. Amazon.com, Inc.

Intra-state delivery drivers routinely carrying interstate parcels for a company engaged in interstate commerce are sufficiently engaged in interstate commerce to qualify for the exception to the Arbitration Act, given the interpretation of a parallel statute -- the narrow reading of arbitration exceptions and legislative history to the contrary are both answered within the precedent.

Where the express choice of a certain law for the arbitration provisions in a contract is severed in judicial review according to the severability provisions of the contract, the law identified in he general choice of law provision of the contract instead controls the arbitration provisions.

Although class claim waivers in agreements covered by the Arbitration Act cannot be waived due to the state's public policy, where, as here, the agreement is within an exception to the Act, state public policy can make the waiver of class claims unenforceable.

As the conflicts rules of the forum state would oust the foreign law where it contradicted state public policy, the conflicts rules of the forum state that has identified the policy interest control.

Waithaka v. Amazon.com, Inc.

Third Circuit: Christina Williams v. Medley Opportunity Fund II, LP

Reference to delegation clause in challenge to validity of an arbitration agreement is sufficient to merit review of the validity of the clause, even where the agreement elsewhere specifies that the enforceability of the agreement is a matter for arbitration.

Where parties do not provide court with the substance of the Tribal law selected by the agreement's choice of law provision, the law of the forum is used to assess which statutory claims might be raised against the agreement.

Choice of law terms in an arbitration agreement do not necessarily expand the range of claims that can be raised under the arbitrability sections of the agreement.

Where an arbitration agreement clearly waives federal rights, it need not explicitly do so to be an impermissible prospective waiver for reasons of public policy.

Waiver sufficiently central to the arbitration process to strike the entire agreement.

Christina Williams v. Medley Opportunity Fund II, LP

Seventh Circuit: Brian Reynolds v. Henderson & Lyman

Existence of a duty of care, although dispositive, is a question of law that, in the federal forum, is decided by the judge.  As the division of responsibilities for finding facts and law at the trial stage is a procedural one, the procedures of the federal forum control.

Under state law, attorneys for LLC owed no third-party duty of care to LLC owner and manager.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D09-12/C:17-1999:J:Wood:aut:T:fnOp:N:2217358:S:0

Fifth Circuit: Norman Bloom v. Aftermath Pub Adjusters, Inc., et

Absent state precedent to the contrary, in a federal forum, state procedural rules on tolling of claim are limited to the class of persons explicitly identified in the state precedent or statute.  Federal forum cannot equitably modify, as it is a question of law.

http://www.ca5.uscourts.gov/opinions/pub/17/17-41087-CV0.pdf

Federal Circuit: Raytheon v. Indigo

When an employee who leaves employment where he oversaw processes involving trade secrets oversees a substantially similar process at the second company but denies that any proprietary information was used at the second company, a finder of fact can reasonably determine that the second company did not misappropriate trade secrets.

Testimony at trial established that the trade secret encompassed not just the generic process, but also the specific recipe for it.

Court might have reasonably found that party's decision to, in the end, opt for one state's statute over another was a strategic choice of law decision, and not an attempt to avoid an adverse decision on the merits, which would have mandated an award of fees.

http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/16-1945.Opinion.7-12-2018.pdf

Fifth Circuit: Firefighters' Retirement Sys, et al v. Consulting

Prior assertion that the court did not have personal jurisdiction over them does not judicially estop the deft from invoking the protection in the state statute, as the court ultimately did not accept the challenge to jurisdiction.

Where there is a clear prerequisite for suit in the state statute that can only be waived by written agreement of the parties, a federal court can enforce the prerequisite requirement despite state precedent to the contrary, as the question becomes one of procedure, not of substantive law.

Under state law, contra non valentum does not apply to peremption periods.

Waiver of the peremption period for fraud requires specific intent to deceive.

Under state law, filing of suit does not toll the peremptive period for the prerequisite accounting review.

http://www.ca5.uscourts.gov/opinions/pub/17/17-30274-CV0.pdf

Second Circuit: AEI Life v. Lincoln Benefit Life

A conformity statement in a contract, when captioned as a conformity clause and not naming a particular jurisdiction, does not sufficiently manifest the intention of the parties to be bound by the law of a particular jurisdiction to operate as a choice of law clause.

Under center of gravity analysis, New York law governs the transaction.

State public policy interests against wagering insurance contracts establish voidability, not ab initio nullity, and the risk can therefore be incorporated in the drafting.

Notary verification on the instrument of trust formation created a presumption of validity that was not overcome by a challenge by a handwriting expert.

http://www.ca2.uscourts.gov/decisions/isysquery/1a213a40-982b-4547-95ac-62b636db872e/2/doc/17-224_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/1a213a40-982b-4547-95ac-62b636db872e/2/hilite/

First Circuit: Cornwell Entertainment, Inc. v. Anchin, Block & Anchin, LLP

FRCP, Statute of Limitations, Choice of Law, Fees, Legal Ethics


Motion for directed verdict arguing lack of fiduciary duty did not adequately preserve argument of qualified privilege related to statements to the government for post-trial motion for judgment notwithstanding the verdict.

Where the state law holds the statute of limitations to be three years for actions seeking damages and six years in an action seeking a remedy in equity, court did not abuse discretion in assigning a three year limit to an action seeking damages for a breach of fiduciary duty.

Doctrine of continuous representation equitably tolls the limit during the transactions at issue, not for the duration of the contractual relationship between the parties.

Reasonable minds could differ as to whether the negotiation for private airplane rental was damaged by the conduct.

Remand, as general verdict makes it impossible to discern theory of initial verdict.

Plaintiff's post-trial motion for fees under law of their state is precluded by the trial's choice of deft's substantive law.

Partner's lateraling to counsel's firm from prosecutor's office investigating parties to the case who was not timely screened does not require counsel to withdraw where the new partner had no actual knowledge of the investigation.

No abuse of discretion in unsealing post-trial testimony of jurors relating to process of verdict, as the public access interest outweighs the interest of confidential deliberations.



Cornwell Entertainment, Inc. v. Anchin, Block & Anchin, LLP

Eighth Circuit: Blake Marine Group v. CarVal Investors LLC

Choice of Law, Admiralty, FRCP


Although application of the (Erie) forum's law would allow greater recovery in the forum state, as the forum state borrows the statute of limitations from the state providing the relevant substantive law, the forum state's choice of law rules minimize the importance of recoveries other than those involved in the case, and the law of the plaintiff's state should therefore control.

Insufficient basis for claim of laches under Admiralty jurisdiction, as there's no showing of navigable waters.

Claims of fraud pleaded with insufficient particularity to justify an equitable toll to the statute of limitations.


Blake Marine Group  v.  CarVal Investors LLC

Second Circuit: Alphonse Hotel Corporation v. Tran

FRCP, Corporations, Contracts, Choice of Law, Certified Question


No abuse of discretion in denial of discovery that was seeking to determine valuation of the property at issue where the lease was peppercorn.

Under state law, lease to family member is not accorded deference as business judgment where the corporation has been run for the benefit of the family.

Sweat equity consideration was prior to the lease,and therefore could not be consideration for the deal.

 Under second state's law, which binds by consent of parties due to primary state law's choice of law rules, a contract void for lack of consideration may nonetheless under the parol evidence rule preclude the court from recognizing an earlier agreement between the parties.

Question is one of first impression in the second state, but not important enough to certify, given the certification rules of the second state.



Alphonse Hotel Corporation v. Tran 

Sixth Circuit: Brandon Hefferan v. Ethicon Endo-Surgery

Conflict of Laws, Federal Jurisdiction, Subject Matter Jurisdiction, Torts


No abuse of discretion in court's refusal to hear claim under forum non conveniens, despite Germany's lack of adversarial process and lack of remedy for loss of consortium -- US courts would likely apply the law of the place of the delict  (Germany), and the medical manufacturer has consented to service there.

&c, &c...



Brandon Hefferan v. Ethicon Endo-Surgery

Fifth Circuit: Linda Singletary v. Prudential Ins Co. of America

ERISA, Insurance, Choice of Law, Preemption


As the cause of action is a statutory one, courts should not construe a challenge to the denial of benefits into an equitable challenge to the adequacy of disclosure of limitations.

General concerns of public policy insufficient to invalidate choice of law provision in pendent cause of action.

ERISA preempts state statute, as it has nothing whatsoever to do with risk pooling.


Linda Singletary v. Prudential Ins Co. of America

Second Circuit: Atlantica Holdings, Inc. v. Sovereign Wealth Fund Samruk-Kazyna JSC

FISA, Securities

FISA provides a cause of action under commercial exception for extraterritorial misrepresentations where the losses were directly and (usually to some degree foreseeably) sustained within the USA.

Direct effects on nonparties would qualify.

Locus delicti is where the harm is sustained.

Court declines to exercise pendent jurisdiction over interlocutory appeal on personal jurisdiction.

http://www.ca2.uscourts.gov/decisions/isysquery/2041fd8d-3326-4eba-b744-bb57b252fa78/1/doc/14-917_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/2041fd8d-3326-4eba-b744-bb57b252fa78/1/hilite/

First Circuit: Harrison v. Granite Bay Care, Inc.

FRCP, Principal Place of Business

Despite the fact that the out-of-state corporate headquarters adopts a hands-off approach to the day to day running of the company, the nerve center test designates it as the principal place of business when the overall goals of the corporation are set there and the upper management personnel decisions are made from there.

The relevant exception in the state whistleblower statute derives from the motivations of the employee, and not from his or her duties.  An employee whose duties include raising concerns is not precluded from seeking relief under the statute so long as his or her intent was to raise the concern, and not just to follow a direct instruction by a superior in the corporation.

http://media.ca1.uscourts.gov/pdf.opinions/14-1988P-01A.pdf