In Hardt v. Reliance Standard Life Ins. Co. (.pdf), the Supreme Court resolved a Circuit split on the issue of whether an ERISA attorney’s fees claimant must be a prevailing party to obtain a fee award — in short, the answer is “no.” Instead, an ERISA fee claimant must only show “some degree of success … Continue Reading
In Martinez, the unanimous California Supreme Court affirmed the rulings of the lower courts by rejecting an attempt by agricultural workers to collect unpaid wages from food distributors who bought produce from that farm. In doing so, the court reviewed the history and jurisdiction of the Industrial Welfare Commission (IWC) and its work orders from … Continue Reading
In March 2009, the California Supreme Court granted review in Hertz to address the issue of whether a worker’s inability to participate in vocational rehabilitation due to nonindustrial causes should be apportioned under Labor Code sections 4663 and 4664, as they were amended in 2004 by SB 899. The Court of Appeal had ruled … Continue Reading
During this morning’s special session at the American Law Institute’s Annual Meeting, Director Lance Liebman has announced that work is resuming on the Restatement (Third) of Torts: Economic Torts and Related Wrongs with Reporter Professor Ward Farnsworth. A few more details about the Institute’s new project on insurance law have also become available. Principles of … Continue Reading
Last night, former Solicitor General Seth Waxman addressed the American Law Institute. He strongly endorsed the nomination of current Solicitor General Elena Kagan to the Supreme Court, stating that "It is and should be a foregone conclusion that she will be confirmed." Waxman told the members of having worked with Kagan in the weeks leading up to … Continue Reading
The Florida Supreme Court recently decided, in a case of first impression, that a cause of action for third-party bad faith against an indemnity insurer cannot be maintained when the insurer’s actions were not a cause of the damages to the insured or when the insurer’s actions never resulted in exposure to liability in excess … Continue Reading
In Simpson Strong-Tie Company, Inc., a manufacturer brought suit against an attorney who ran an advertisement regarding possible claims against the manufacturer’s products and the trial court granted counsel’s anti-SLAPP motion to strike. The California Supreme Court has now affirmed the judgment, holding that: 1) the plaintiff has the burden of proof in demonstrating the application … Continue Reading
Justice Stephen Breyer of the Supreme Court spoke this afternoon before a standing-room-only crowd at the Annual Meeting of the ALI. At Justice Breyer’s suggestion, rather than making an address, he responded to questions from several ALI members. ALI Director Lance Liebman asked how the Court’s role as the final arbiter of so many crucial questions … Continue Reading
In its weekly conference, see list of actions, the California Supreme Court granted review in: Jankey v. Lee, in which the Court of Appeal held that the Americans with Disabilities Act does not preempt Civil Code § 55, which entitles the prevailing defendant to attorney’s fees upon defeating a claim for injunctive relief under the … Continue Reading
The California Supreme Court has scheduled oral argument in seven civil cases, five at the end of May and two in Los Angeles at the beginning of June. These hearings should address a wide variety of issues, including: Do employees have a private right of action against employers who take some of the tips? See … Continue Reading
This morning, President Obama announced that Solicitor General Elena Kagan is his nominee to succeed retiring Justice John Paul Stevens on the Supreme Court. The President had this to say about his nominee: Elena is widely regarded as one of the nation’s foremost legal minds. She’s an acclaimed legal scholar with a rich understanding of constitutional law. She is … Continue Reading
An appellate court in Florida granted certiorari and quashed a lower court’s order requiring the Plaintiff to submit to a compulsory medical examination in the presence of a videographer hired by the Defendant. In Prince v. Mallari (.pdf), Defendant served a notice of compulsory medical examination to be performed by a defense-retained physician. The notice … Continue Reading
In Runyon, the unanimous California Supreme Court ruled that whistleblowers employed with California State University do not have to exhaust their judicial remedies (i.e., petition for a writ of mandate) to bring a suit for damages, so long as they first exhaust their administrative remedies. While this ruling is consistent with previous whistleblower rulings by … Continue Reading
CBS News is reporting that President Obama will announce his nominee to replace retiring Supreme Court Justice John Paul Stevens on Monday morning. In the weeks since Justice Stevens announced his retirement, the Appellate Strategist has profiled each of the short list candidates: Solicitor General Elena Kagan Judge Diane Wood of the U.S. Circuit Court of … Continue Reading
Our series of profiles of potential nominees to replace retiring Supreme Court Justice John Paul Stevens continues with Judge Merrick Garland of the U.S. Court of Appeals for the District of Columbia Circuit. Judge Garland’s credentials are impeccable. An honors graduate of Harvard University and Harvard Law School, he clerked for Judge Henry Friendly of … Continue Reading
In the days following Justice John Paul Stevens’ announcement in April that he would step down from the Supreme Court, the speculative “short list” of candidates to replace him steadily lengthened. But one name that was mentioned almost immediately was Judge Diane Wood of the U.S. Court of Appeals for the Seventh Circuit. At age 59, … Continue Reading
Our series of profiles of possible Supreme Court nominees to replace the retiring Justice John Paul Stevens continues with the Secretary of Homeland Security, Janet Napolitano. After finishing at the top of her class at Santa Clara University — earning a Truman Scholarship and graduating summa cum laude with Phi Beta Kappa honors — Napolitano … Continue Reading
The California Supreme Court, in O’Neil v. Crane Co., No. S177401, is considering the liability of an equipment manufacturer under these circumstances: The manufacturer sells a product pursuant to the buyer’s specifications (say, a valve or pump) that is accompanied by an allegedly defective part (say, an asbestos-containing gasket) made by another, which is incorporated … Continue Reading
An April 21 decision of the US. Supreme Court is must reading for attorneys who collect debts. Making a legal mistake can subject the attorney and the firm to liability under the Fair Debt Collection Practices Act. In Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA (.pdf), the law firm filed a complaint in … Continue Reading
We continue our profiles of short-listed potential nominees with Leah Ward Sears, former Chief Justice of the Georgia Supreme Court. Justice Sears was born in 1955 in Heidelberg, Germany, where her father served as a colonel in the Army. Her family later settled in Savannah, Georgia, and she attended high school there. She received her … Continue Reading
Appellate Strategist’s continuing series of profiles of “short list” candidates to replace the retiring Justice John Paul Stevens continues with Judge Sidney Thomas of the 9th Circuit Court of Appeals. Judge Thomas is notable for his relatively conventional professional path, and his geographic and educational roots. Where many of the current Justices arrived at the … Continue Reading
In Pearson Dental Supplies, Inc. v. Sup. Ct., the court considered an arbitrator’s decision, pursuant to a mandatory arbitration agreement, that an employee’s discrimination claim was time barred. Since by failing to apply the tolling statute CCP § 1281.12, the arbitrator had committed “a clear error of law” which would deprive the employee of any … Continue Reading
Since the days of Robert Bork, it has happened, sooner or later, to every Supreme Court nominee: the uncomfortable moment when a Senator quotes one of the nominee’s writings back to him or her, smiles across the Committee table, and says: “Explain that.” If Solicitor General Elena Kagan is nominated to replace Justice John Paul Stevens … Continue Reading
In conference Wednesday (see list of actions), the Court granted review in Save the Plastic Bag Coalition v. City of Manhattan Beach, in which the Court of Appeal upheld vacating a city ordinance banning the use of plastic bags because an environmental impact report was not prepared. See the Environmental update page. In addition, … Continue Reading
