News

Case Summaries

Injury & Tort Law

[03/10] Primiano v. Cook
In an action against the manufacturer of an artificial elbow, summary judgment for defendant is reversed where the exclusion of plaintiff's expert's evidence was error as plaintiff's expert, with a sufficient basis in education and experience, testified that the artificial joint "failed to perform in the manner reasonably to be expected in light of its nature and intended function," which was enough to assist a trier of fact.

[03/10] Cameron v. N.Y.
In an action for false arrest and malicious prosecution, judgment for defendant-officers is reversed where: 1) prosecutors' opinions as to probable cause and complaining officers' credibility are irrelevant in virtually all cases involving claims of malicious prosecution; and 2) the introduction of such evidence was not harmless because it provided strong external validation for propositions that otherwise would have come in only from the defendants' mouths.

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Consumer Protection

[03/09] Martinez v. Wells Fargo Home Mortgage, Inc.
In an action under Section 8(b) of the Real Estate Settlement Procedures Act (RESPA), and California's Unfair Competition Law (UCL), claiming that a mortgage lender charged plaintiffs an illegal underwriting fee, dismissal of the complaint is affirmed where: 1) the clear and unambiguous language of RESPA Section 8(b) did not reach the practice of "overcharging"; and 2) the UCL claims alleging "unfair" and "fraudulent" conduct were preempted by the National Bank Act, and the allegations of "illegal" conduct failed to state a claim.

[03/08] Milavetz, Gallop & Milavetz, P.A. v. US
In an action by a law firm seeking declaratory relief, arguing that plaintiff was not bound by the Bankruptcy Abuse Prevention and Consumer Protection Act's (BAPCPA) debt relief agency provisions and therefore could freely advise clients to incur additional debt and need not make the requisite disclosures in its advertisements, the Eighth Circuit's order rejecting the district court's conclusion that attorneys are not "debt relief agencies" under BAPCPA, upholding application of BAPCPA's disclosure requirements to attorneys, and finding BAPCPA section 526(a)(4) unconstitutional, is affirmed in part where: 1) attorneys who provided bankruptcy assistance to assisted persons were debt relief agencies under the BAPCPA; and 2) BAPCPA section 528's requirements were reasonably related to the government's interest in preventing consumer deception. However, the court of appeals' order is reversed in part where BAPCPA section 526(a)(4) prohibited a debt relief agency only from advising a debtor to incur more debt because the debtor was filing for bankruptcy, rather than for a valid purpose.

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Health Law

[03/11] Schaar v. Lehigh Valley Health Servs., Inc.
In plaintiff's suit against her former employer for violation of the FMLA, summary judgment in favor employer is vacated and remanded as an employee may satisfy her burden of proving three days of incapacitation through a combination of expert medical and lay testimony. Here, when expert medical opinion of a doctor that plaintiff was incapacitated for two days because of her illness is combined with plaintiff's lay testimony that she was incapacitated for two additional days, it necessarily follows that a material issue of fact exists as to whether plaintiff suffered from a serious health condition.

[03/10] Primiano v. Cook
In an action against the manufacturer of an artificial elbow, summary judgment for defendant is reversed where the exclusion of plaintiff's expert's evidence was error as plaintiff's expert, with a sufficient basis in education and experience, testified that the artificial joint "failed to perform in the manner reasonably to be expected in light of its nature and intended function," which was enough to assist a trier of fact.

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Consumer Products

[03/03] Byers v. Intuit, Inc.
In plaintiff's putative class action on behalf of U.S. taxpayers against the IRS and a consortium of companies in the electronic tax preparation and filing industry (FFA) claiming violations of the Independent Offices Appropriations Act (IOAA) in the charging of fees in exchange for providing e-filing services, as well as a violation of section 1 of the Sherman Antitrust Act, dismissal of both claims is affirmed where: 1) the district court was correct in holding that the IOAA does not apply to the FFA members, as it only applies to a government agency and none of the exceptions in Thomas v. Network Solutions, Inc., 176 F.3d 500 (D.C. Cir. 1999) apply; and 2) the district court did not err in dismissing the Sherman Act claim as the FFA members are entitled to conduct-based implied antitrust immunity with respect to the anti-competitive action taken pursuant to the Ceiling Provisions of the 2005 Agreement with the IRS.

[03/02] Pfizer v. Sup. Ct.
In plaintiffs' action against Pfizer, the manufacturer of Listerine mouthwash, pursuant to the Unfair Competition Law (UCL) and False Advertising Law claiming that Pfizer marketed the mouthwash in a misleading manner by representing that the use of it can replace the use of dental floss in reducing plaque and gingivitis, defendant's petition for writ of mandate seeking to overturn an order certifying the class action is granted as the ruling certifying a class consisting of all persons who purchased Listerine in California during a six-month period is overbroad, and In re Tobacco II Cases, 46 Cal.4th 298 (2009), does not require a different disposition in this case.

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Class Actions

[03/10] Hesse v. Sprint Corp.
In a class action alleging that defendant Sprint Corp. unlawfully collected a Washington state tax from Washington customers, summary judgment for defendant is vacated and remanded where a prior class action settlement challenged Sprint's billing of customers for certain federal regulatory fees, and the Washington plaintiffs' interests were not adequately represented in that litigation.

[03/03] Byers v. Intuit, Inc.
In plaintiff's putative class action on behalf of U.S. taxpayers against the IRS and a consortium of companies in the electronic tax preparation and filing industry (FFA) claiming violations of the Independent Offices Appropriations Act (IOAA) in the charging of fees in exchange for providing e-filing services, as well as a violation of section 1 of the Sherman Antitrust Act, dismissal of both claims is affirmed where: 1) the district court was correct in holding that the IOAA does not apply to the FFA members, as it only applies to a government agency and none of the exceptions in Thomas v. Network Solutions, Inc., 176 F.3d 500 (D.C. Cir. 1999) apply; and 2) the district court did not err in dismissing the Sherman Act claim as the FFA members are entitled to conduct-based implied antitrust immunity with respect to the anti-competitive action taken pursuant to the Ceiling Provisions of the 2005 Agreement with the IRS.

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