News

Case Summaries

Consumer Protection

[07/02] Cavin v. Home Loan Ctr., Inc.
In a suit involving a mailer sent by defendant announcing its mortgage program and claiming that defendant violated the Fair Credit Reporting Act by failing to present plaintiffs' with a firm offer of credit, summary judgment for defendant is affirmed where: 1) the letter at issue presented a firm offer of credit, despite the absence of some material terms and the minimal number of consumers who obtained the loan; and 2) thus, defendant did not violate the FCRA.

[06/30] In Re: New Motor Vehicles Canadian Export Antitrust Litig.
In a putative class action lawsuit brought under section 1 of the Sherman Act claiming that defendants-manufacturers conspired in a price collusion to restrict free automobile trade, dismissal of plaintiffs' complaint is affirmed where, as indirect purchasers, plaintiffs lacked standing to sue under section 4 of the Clayton Act.

[06/30] Rodi v. S. New England Sch. of Law
In a lawsuit filed against plaintiff's alma mater legal institution claiming that the school's deans fraudulently misrepresented the school's prospects for ABA accreditation upon which he detrimentally relied upon, summary judgment for law school is affirmed where no rational jury could find plaintiff's reliance upon weak predictions of accreditation to be reasonable.

[06/30] Strawn v. AT&T Mobility LLC
In a class action suit brought under the West Virginia Consumer Credit and Protection Act challenging defendant-AT&T's practice of enrolling new subscribers to a "roadside assistance" program for an additional charge without the customer's knowledge, an order remanding the case to state court is reversed and the case remanded where: 1) a party seeking to invoke federal jurisdiction must allege it in its notice of removal and, when challenged, must demonstrate the basis for federal jurisdiction; 2) defendant correctly defined the class as any customer who was charged after being automatically enrolled in the program without ever requesting or enrolling for the service; and 3) defendant demonstrated that the jurisdiction amount under the Class Action Fairness Act's (CAFA) was satisfied.

[06/26] Absher v. Autozone, Inc.
Civil Code section 1747.08, which prohibits merchants from obtaining personal identification information from credit card users, does not apply to a refund for the return of merchandise purchased by credit card.

[06/24] Nat'l Union Fire Ins. Co. of Pittsburgh v. Puget Plastics Corp.
In a suit seeking declaratory judgment with regard to indemnification sought from plaintiff-insurer after a jury found that defendants knowingly violated the Texas Deceptive Trade Practices Act, partial summary judgment for defendants and denial of plaintiff's motion for summary judgment is affirmed where: 1) although defendant's actions were deliberate, the jury made no finding that defendant intended or expected the harm or whether the harm was highly probable; 2) plaintiff had the burden to establish that an impaired property exclusion applied; and 3) defendants could present evidence at trial regarding facts necessary to determine coverage that were not adjudicated in the underlying case.

[06/24] Dicarlo v. St. Mary Hosp.
In a class action suit asserting numerous claims against several medical care defendants for their billing practices to uninsured patients, grant of defendants' motion for judgment on the pleadings is affirmed where the district court's analysis correctly stated the law with respect to each of plaintiff's claims on unjust enrichment, breach of contract, defendant's alleged violation of state consumer protection law and breach of fiduciary duties.

[06/20] Muir v. Navy Fed. Credit Union
In a suit against a credit union and a debt collection agency for tortious conversion, tortious interference with a business expectancy, breach of fiduciary duty, and violation of the Fair Debt Collection Practices Act, dismissal of the claims against the credit union for breach of fiduciary duty and denial of a request for punitive damages for tortious conversion are affirmed. However, rulings that plaintiff lacked standing to bring his statutory claims against the collection agency, that plaintiff failed to state a claim against the credit union for tortious interference, and that plaintiff was not entitled to interests or lost profits are reversed.

[06/19] Clemens v. DaimlerChrysler Corp.
In a class action against DaimlerChrysler alleging that it breached express and implied warranties and committed fraud in the sale of certain Dodge Neon cars containing defective head gaskets, dismissal and summary judgment rulings for defendant are affirmed where: 1) plaintiff failed to allege that his Dodge Neon failed to perform as expressly warranted; 2) an implied warranty claim failed as plaintiff was not in vertical privity with DaimlerChrysler as required by state law; 3) thus, state law and the Magnuson-Moss Act claims were properly dismissed; 4) the statute of limitations barred a fraud claim; and 5) an Unfair Competition Law claim failed as defendant's conduct was not unfair within the meaning of the statute, and there was insufficient evidence that the gasket's failure rate was material to a reasonable consumer.

[06/19] Poehl v. Countrywide Home Loans, Inc.
In an action alleging defendants' access to credit reports violated Fair Credit Reporting Act (FCRA), judgment in favor of defendants is affirmed where: 1) pre-screened mails offering recipients home or auto loans qualified as firm offers of credit under FCRA; and 2) thus, plaintiffs' rights were not violated under the Act by defendants' access of their credit information prior to extending the offers to them.

More...

Injury & Tort Law

[07/03] Sherman v. Winco Fireworks, Inc.
In an action arising from an accident with fireworks, order granting defendant-fireworks manufacturer leave to amend and remand for a new trial on the plaintiffs' failure-to-warn claim in addition to plaintiff husband's pendent consortium claim is reversed in part where: 1) the district court did not apply the good-cause standard in ruling on motion to amend; 2) and the district court abused its discretion in allowing the amendment; 3) and the error was not harmless as it significantly affected plaintiffs' claims.

[07/02] Anderson v. Commerce Construction Services, Inc.
In an action for negligence arising out of a Nebraska subcontractor's employee's injuries while performing demolition work in Kansas, summary judgment for defendant is affirmed where: 1) Kansas courts would have applied the lex loci delicti choice of law rule whereby the state where the tort occurred governs the merits of the litigation; 2) Kansas courts have only applied section 185 of the Restatement (Second) of Conflict of Laws to cases dealing with subrogation; and 3) application of section 184's most significant relationship test would result in defendant prevailing.

[07/02] Allen v. Brown Clinic, P.L.L.P
In a medical malpractice suit, jury verdict for defendant-doctor is affirmed over claims that the district court erred when it denied his motion to exclude for cause: 1) all jurors who had ever received medical treatment at a particular clinic or with a particular doctor; 2) all jurors who had family members who had been treated at the clinic or by the doctor; and 3) two jurors who had relatives with connections to the defendants. A claim that the district court erred in denying a motion to exclude defendants' medical expert is also rejected.

[07/02] Rodriguez-Rivera v. Federico Trilla Reg'l Hosp. of Carolina
In a medical malpractice case against defendant-hospital presenting the issue of whether an Asset Purchase Agreement entered between past and present owners of the hospital absolved the current owner's liability for acts or omissions by the hospital's previous owners and/or operators, the circuit court finds that the terms of the asset purchase agreement not only could, but did, absolve the present owners from liability.

[07/02] Ellison v. US
In an action brought against the government under the Federal Tort Claims Act (FTCA) arising from a motorcycle accident with a vehicle driven by a United States Postal Service employee, dismissal of the complaint on timeliness grounds is affirmed where: 1) the FTCA requires claimants to file their claims within six months of an agency's written denial of a claim; 2) plaintiff filed this lawsuit almost seven months after the Postal Service denied her claim; and 3) plaintiff's alternative readings of the FTCA were unconvincing.

[07/02] S.S. v. E. Kentucky Univ.
In a suit raising Americans with Disabilities Act, Rehabilitation Act, 42 U.S.C. section 1983, and state law claims alleging discrimination while plaintiff attended a middle school run by defendants, summary judgment for defendants is affirmed where: 1) there was no abuse of discretion in denying both an overbroad discovery request and a request for an increase in the page limit for a pleading; 2) plaintiff's ADA and section 504 claims failed because the alleged disparate treatment originated from the fact that defendant investigated every incident plaintiff complained about and determined a different response depending on the circumstances; 3) dismissal of procedural due process claims was proper; 4) a substantive due process claim failed; 5) section 1983 equal protection claims failed because any difference in treatment was due to defendant's attempts to protect plaintiff from harassment or to discipline him when he was responsible for incidents with other classmates; and 6) state law claims failed as they did not raise a genuine issue of material fact.

[07/01] Donell v. Kowell
In a suit arising to recover gains made by defendant, an innocent investor, from a Ponzi scheme, a judgment requiring him to disgorge his profits as fraudulent transfers under the Uniform Fraudulent Transfer Act is affirmed where the circuit court: 1) adopted the largely uniform analysis used for applying the UFTA to allow recovery from investors in a Ponzi scheme, and describes a two-step process for determining the existence and amount of liability; 2) found there was no error in the district court's application of such analysis; 3) rejected arguments that courts should not be allowed to require innocent investors to disgorge net profits; and 4) declined to permit good faith investors to claim offsets for taxes or other expenses paid in connection with receipt and management of income from a Ponzi scheme.

[07/01] Mangano v. US
In a suit under the Federal Tort Claims Act (FTCA) for emotional distress and other injuries allegedly suffered in connection with plaintiff's termination from the San Francisco Veterans Administration Medical Center, dismissal of the suit is affirmed where plaintiff's tort claims are preempted by the Civil Service Reform Act (CSRA) since Congress amended the CSRA to apply selectively to part-time physicians employed by the VA.

[07/01] Pesnell v. Arsenault
In a matter arising from a dispute with the government over ownership of two million acres of land in California, raising RICO and other constitutional claims, Rule 12(b)(6) dismissal of plaintiff's action against federal employees as procedurally barred is reversed where: 1) district court erred in dismissing all of plaintiff's claims on the basis of the judgment bar rule; and 2) the circuit court's opinion in a prior Arizona action did not resolve the issue of timeliness. However, denial of a motion to recuse the district judge is affirmed. (Superseding opinion)

[07/01] G.K. Alan Assoc., Inc. v. Lazzari
In a civil lawsuit involving defendant's alleged acts of fraud and embezzlement, a ruling finding that summary judgment for either party was precluded is affirmed where inquiries as to defendant's actual intent for the wrongdoings charged, and plaintiff's knowledge of defendant's ongoing fraud or embezzlement practices, were factual issues properly resolved at trial.

More...