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In re Nexium Antitrust Litigation Holds that Class May Include de Minimis Number of Uninjured Members
Last Wednesday the First Circuit Court of Appeals, in a split decision, upheld class certification of consumers and insurance companies that alleged they were forced to pay higher prices for Nexium, a heartburn drug, in violation of state antitrust laws. In re Nexium Antitrust Litigation, 2015 WL 265548 (Jan. 21, 2015). The court found that a few uninjured members in a class does not prevent class certification. Read More ›
Big cases often result in significant and unprecedented results. That certainly seems the case with two recent decisions in the Target Data Breach Litigation in Federal Court in Minnesota. When these decisions are analyzed with other Federal Court decisions which have not followed the SCOTUS precedents found in Dukes and Comcast, 2014 seems to set an ominous tone for future data breach and privacy class actions. What it all means remains to be seen, but certainly the recent decisions to deny Target’s motions to dismiss are troubling. Read More ›
To flush or to remand? In a deceptive marketing consumer class action removed under CAFA, district court remands – rather than dismisses – claims seeking injunctive relief, for which court rules plaintiff lacks Article III standing.
In a recent opinion, the U.S. District Court for the Northern District of California ruled that, while the plaintiff lacked Article III standing to seek injunctive relief in federal court, his claims for injunctive relief under state consumer protection laws could proceed in a parallel action in state court. Machlan v. Procter & Gamble Co., 2015 WL 106385 (Jan. 7, 2015).
The ruling is a novel approach to a procedural dilemma facing plaintiffs in deceptive marketing cases. While injunctive relief is a key remedy provided by many state consumer protection statutes, federal jurisprudence regarding the requirements for Article III standing for injunctions poses a nearly insurmountable hurdle in deceptive marketing cases brought under such statutes. A plaintiff seeking an injunction in federal court must show “irreparable injury,” which the Supreme Court has said requires “a sufficient likelihood that he will again be wronged in a similar way.” City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983). But in the context of consumer deceptive marketing claims, the plaintiff is now aware of the alleged deception and thus cannot show that he will be harmed in the same way in the future.
This is particularly significant in light of the Class Action Fairness Act, which gives defendants the ability to remove to federal court many consumer class actions filed in state courts that otherwise would not have been removable prior to CAFA’s enactment. 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.
On January 13, 2015, the U.S. Supreme Court unanimously decided that a borrower may simply provide written notice to a lender to exercise its right to rescind under the Truth in Lending Act (“TILA”). It need not have actually filed suit within the statutory three year period. The Court’s decision in Jesinoski v. Countrywide Home Loans, Inc. clarified borrowers’ rescission right under TILA and resolved a split between Circuits. Read More ›
In an important decision regarding financial institution claims for recovery of losses resulting from data breaches, the United States District Court in Minnesota recently issued an Order denying Target’s attempt to dismiss all claims brought against it by financial institutions. Read More ›
Towards the end of 2014, two new national savings laws were signed by President Barack Obama. The first is American Savings Act, H.R. 3374. To encourage consumer savings, this Act permits financial institutions to offer prize-linked savings products. Citing the need to improve the country’s saving rate by American households, and following the success the State of Michigan saw with its own similar program, the Act permits a saving promotion raffle to be offered by insured financial institutions, including federal savings and loan institutions. A permitted savings promotion raffle is a contest in which the consideration for entry is obtained by the deposit of a specified amount of money into a savings account or other savings program offered by a financial institution. 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.
China’s healthcare market is expected to grow from $357 billion in 2011 to $1 trillion by 2020 according to McKinsey & Company. This makes China the most attractive healthcare market in the world. Specifically, attention should be paid to China’s elder care sector. According to the CIA’s World Factbook, more than 280 million people in China are 55 and older. The United Nations estimated that by 2025 there will be 64 elderly retired people in China for every 100 workers, whereas only 33 retirees for every 100 workers by 2050 is projected for the United States. Given how much of a challenge it is even for a developed economy like the United States to handle its elder care, China’s problem is entirely on a different scale. Read More ›
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 ›
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