Blogs & Social Media Sites
A Divided Supreme Court Navigates CAFA To Hold That Amount-In-Controversy Evidence Need Not Be Submitted With A Defendant’s Notice Of Removal, And That There Is No “Presumption” Against Removal
By a 5-4 vote, the United States Supreme Court this week reversed and remanded Dart Cherokee Basin Operating Co. v. Owens to the Tenth Circuit. The decision is favorable for defendants seeking to remove class actions to federal court because the Court clarifies that a defendant’s notice of removal under CAFA need not provide evidence of an alleged amount in controversy. Moreover, the Court states that there is no “presumption” against removal under CAFA. The Court reached the merits despite the belief of many that the appeal would be dismissed. The majority stated, among other things, that a circuit court’s exercise of its discretion to review a remand order cannot be “rudderless.” Read More ›
Sirius XM satellite radio last week settled claims attacking its business practices. Sirius XM is a satellite radio provider with over 26 million subscribers according to its website. It provides over 3.7M square miles of “seamless coast to coast” radio coverage. Read More ›
Eastern District of Michigan holds that Rule 68 Offer of Judgment moots proposed class representative's claims.
The Eastern District of Michigan recently issued a decision recognizing the power of class action defendants to “pick off” class representatives, and thus prevent class certification, with an Offer of Judgment under Fed. R. Civ. P. 68. In an April 2, 2014 entry, this blog discussed the unclear status of the law in the Sixth Circuit as to whether defendants can preclude class certification with a Rule 68 offer. The court’s decision, here, suggests defendants have the right to pick off class representatives early in the litigation when a motion for class certification is not pending. But it stops short of stating when this right expires. Read More ›
The Construction Law News Blog is a resource for today's construction industry professionals. The blog discusses a variety of legal issues. Some of these issues include risk management, contract preparation, payment disputes and dispute resolution.
On July 31, 2014, President Obama issued the latest in a series of executive orders impacting government contractors. This order, titled “Fair Pay and Safe Workplaces”, mandates contractors self-report any issues they may have had in complying with various labor laws. While the specifics of this new self-reporting requirement will be set out in forthcoming regulations, contractors can expect that their regulatory burdens have taken a substantial step up. In addition, the order impacts the enforceability of arbitration agreements contained in certain employment contracts. Each of these major changes is addressed below. Read More ›
On July 17, 2014, the Ohio Supreme Court continued its literal interpretation and application of construction contracts. In the case, Transtar Elec., Inc. v. A.E.M. Elec. Servs. Corp., Slip Opinion No. 2014-Ohio-3095, a general contractor hired a sub-contractor to provide electrical services for the installation of a pool at a hotel. The sub filed suit seeking payment of $44,000 that was never paid by the GC or project owner. The subcontract included the following language:
"(c) The Contractor shall pay to the Subcontractor the amount due under subparagraph (a) above only upon the satisfaction of all four of the following conditions: * * * (iv) the Contractor has received payment from the Owner for the Work performed by the Subcontractor. RECEIPT OF PAYMENT BY CONTRACTOR FROM THE OWNER FOR WORK PERFORMED BY SUBCONTRACTOR IS A CONDITION PRECEDENT TO PAYMENT BY CONTRACTOR TO SUBCONTRACTOR FOR THAT WORK." Read More ›
It is sometimes difficult to tell whose insurer will be liable for certain occurrences on a construction project. The whole purpose of contracting is to allocate risk—hopefully to the party that is better situated to deal with that risk. In allocating that risk, all parties need to know which party is ultimately responsible for insuring against certain risks. While some court opinions can leave a reader unsure of the ultimate holding and its application, the Indiana Court of Appeals recently issued a clear and concise opinion regarding issues of insurer liability in the context of interpreting an American Institute of Architects (AIA) standard form agreement. Read More ›
The Distress to Success blog, based off of the book by Bobby Guy, focuses on distressed investing, events in the acquisition markets, and restructuring issues. “Distress to Success” is written for the business leader struggling to return a company from the “red” into the “black.”
On Monday, we released three new research indices tracking distress in U.S. financial markets. Read More ›
One of the interesting tensions in the healthcare industry right now is the need for consolidation versus antitrust consolidation prohibitions. Read More ›
When it comes to distressed healthcare M&A, the thorniest issues often ride on provider agreement liabilities with Medicare and Medicaid. Read More ›
The Financial Services Blog offers the latest information on banking development and litigation trends. Topics range from commercial and consumer lending through bankruptcy, lender liability defense, and the Dodd-Frank Act through Regulations JJ.
The Board of Governors of the Federal Reserve System (“Board”) is proposing important changes to Regulation CC, 12 C.F.R. § 229, which implements the Expedited Funds Availability Act of 1987 (“EFA Act”) and the Check Clearing for the 21st Century Act of 2003 (“Check 21 Act”). See Availability of Funds and Collection of Checks, 79 Fed. Reg. 6674-01 (proposed Feb. 14, 2014) (to be codified 12 C.F.R. § 229). The Board’s proposal includes a revised regulatory framework for subpart C of Regulation CC, dealing with the forward collection and return of checks. In particular, the Board’s proposal would amend 12 C.F.R. § 229.34 to provide new indemnity provisions relating to remote deposit capture services. Read More ›
TD Bank recently agreed to pay $850,000 as part of a multi-state settlement agreement with state attorneys from Connecticut, Florida, Maine, Maryland, North Carolina, New Jersey, New York, Pennsylvania, and Vermont. While the assurances in the settlement agreement only bind TD Bank, other companies with electronic records containing consumers’ personal information can benefit from this agreement by interpreting its requirements as minimum standards for their internal security policies and procedures. Read More ›
What Banks Large and Small Need to Know About “Prior Express Consent” Under the Telephone Consumer Protection Act
The Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, has become the darling of the plaintiff class action industry. Too often the press has reported on very large dollar settlements arising out of TCPA claims. Recent examples include a September 2, 2014, approval of a $32 million settlement of six pending TCPA class action suits against Bank of America, involving 7 million class members. Similarly, Capital One recently agreed to pay $75 million after plaintiffs’ alleged the financial institution used an auto-dialer to call customer cell phones without the required consent. While the large dollar settlements involving large institutions may catch the headlines, all financial institutions should understand that the TCPA applies to them, and even indirectly to them, if certain vendors violate the Act. There is also concern that an opportunistic plaintiffs’ bar will soon seek to replicate their litigation business model by bringing copy-cat lawsuits on a more local level against smaller institutions. Read More ›
The International Services Group Blog is a resource for business leaders within the international commerce industry. Frost Brown Todd's international lawyers discuss the latest challenges for international trade and regulation, as well as solutions for those challenges.
According to the U.S. Department of Commerce, China is now the world’s second largest market for medical equipment. According to the Hong Kong Trade and Development Council (HKTDC), the Chinese medical device market was worth about $34.51 billion in 2013. The annual growth rate of China’s medical device market has been between 15% and 20% depending on the product sector. The major driving forces behind this growth include increasing demand for healthcare services due to improved and complete coverage for Chinese nationals and the increasing aging population in China. Hospitals are major distribution portals for medical devices accounting for more than 75% of the market share according to the HKTDC. Medical device makers from the United States, Europe and Japan take up roughly three-quarters of China’s medical device market. This is mostly because Chinese consumers consider foreign products better in quality and are technologically advanced. To no one’s surprise, China has been speeding up the development of its own medical device industry and promoting domestic products in its recent “Buy China” efforts. Read More ›
The Changing Labyrinth of China’s e-Commerce - New Requirements of an Online Standard Terms Agreement
China is transitioning from a manufacturing-based economy to a more service and consumption-driven economy. E-commerce is at the center of this transition and it is growing at a rapid pace. In 1995, there were approximately 60,000 Internet users in China. Today, the Boston Consulting Group predicts China’s Internet population will reach 730 million in the next two years and its online shopping headcount is expected to reach 380 million. The value of China’s e-commerce market is also astonishing. By 2015, KPMG estimates China’s e-commerce transactions to reach $540 billion. Read More ›
China’s Ministry of Commerce has taken another step to deregulate over time the approval process for Chinese citizens and companies to invest overseas. This remains a controlled process, but the new rules described in the link below should assist in increasing China’s going abroad. Frost Brown Todd often works with Jun He on mutual client matters. Click here for a summary of the new measures in English and in Chinese.
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