Blogs & Social Media Sites
The Benefit of Ambiguity in a Class Complaint does not Always Favor Remand—If a Defendant Meets its Burden under CAFA, then Ambiguity May Favor Federal Removal Jurisdiction
On a daily basis, litigants engage in a forum battle (state v. federal) for class action lawsuits under the Class Action Fairness Act of 2005 (CAFA), 28 U.S.C. § 1332(d)(2). The amount in controversy requirement is a key component in this ongoing dispute. Federal courts strictly construe removal jurisdiction and resolve ambiguity in the plaintiff’s complaint in favor of remand to state court. However, a district court in California held that weakness and ambiguity in a plaintiff’s evidentiary basis for remand may determine the amount in controversy issue in favor of the defendant. Stevenson v. Dollar Tree Stores, Inc., No. CIV S-11-1433 KJM DAD, 2011 WL 4928753 (E.D. Cal. Oct. 17, 2011). Read More ›
Class Certification for Nuisance Claims is Nearly Impossible After Powell v. Tosh’s Analysis of Rule 23’s Commonality Requirement
Plaintiffs seeking class certification for environmental nuisance actions face an uphill battle in Kentucky’s federal courts after Powell v. Tosh, 5:09-CV-00121, 2013 WL 4418531 (W.D. Ky. Aug. 2, 2013). In Powell, a district court decertified a class of Kentucky residents who filed nuisance claims against a neighboring hog farm, concluding that evidentiary developments showing the residents did not all suffer the same injury destroyed the “commonality” requirement, making class certification unavailable under Fed. R. Civ. P. 23 (“Rule 23”). This ruling indicates that plaintiffs seeking class certification for nuisance claims under Rule 23 face a difficult burden because of the individualized showing necessary to prove “commonality,” which may be persuasive to other federal district courts analyzing Rule 23 nuisance class actions. Read More ›
The Sixth Circuit is not Buying what Lake City is Fax-Blasting: Affirms TCPA Class Certification and Summary Judgment
In February 2006, Lake City, a business that distributes pipe-thread sealing tape hired Business to Business Solutions (“B2B”), a fax-blasting advertising company, to transmit advertisement faxes on its behalf. Lake City President, Jeffrey Meeder and B2B drafted the advertisement and sent the unsolicited fax to approximately 10,000 recipients. 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 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 ›
With its unanimous decision in Atlantic Marine Construction Co., Inc. v. U.S. District Court for the Western District of Texas the United States Supreme Court stated its strong support for the enforcement of contractual forum-selection clauses. Specifically, the Court outlined how federal courts should determine whether to transfer a case filed in a federal district court different than the contractually selected forum. In describing this process the Court recognized that it would be rare for a court to not follow the forum-selection clause. While this decision is good news for contractors attempting to enforce their contracts the Court’s decision leaves open some important questions which may lead to future uncertainty related to these clauses. 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.”
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 ›
Regardless of political positions, one of the astounding facts about the Affordable Care Act (i.e., Obamacare) is how much the law attempts to accomplish. 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.
Supreme Court of Kentucky Rules on Check Fraud Case Involving Articles 3 and 4 of the Uniform Commercial Code.
On June 19, 2014, the Supreme Court of Kentucky issued its decision regarding check fraud in the case of Mark D. Dean, P.S.C. v. Commonwealth Bank & Trust Company. This is an important decision for Kentucky banks and employers who authorize employee signatories on company bank accounts. Read More ›
Witness Only Closings in West Virginia and Notary Fees: Is Your Bank at Risk for a Class Action Lawsuit?
In a class action lawsuit filed in West Virginia, the United States District Court for the Northern District of West Virginia recently held in Dijkstra v. Carenbauer et al (Civil Action No. 5:11-CV-152, Document Nos. 210 and 242) that the closing of real estate loans by non-lawyers constitutes the unauthorized practice of law. The Court held: Read More ›
The news reports of bank losses serve as both cautionary tales and teaching moments: no bank wants to find its name included in headline-grabbing stories of bank employee misconduct. Monitoring employee accounts for fraud and malfeasance is a regulatory expectation and a best practice for fraud prevention. While regulators may not have specified particular types of monitoring requirements regarding employee accounts, it is evident that account monitoring parameters targeting high-risk employee transactions can have a greater chance of catching employee fraud than general non-risk based monitoring. 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.
In recent years, the United States has become a preferred destination for Chinese acquisitions and strategic investments. This is mostly due to the weak dollar, the US debt crisis, and the desire to gain access to US brands, distribution systems, and technological know-how. However, the biggest concern for Chinese investors entering the US market is the national security review by the Committee on Foreign Investment in the United States (CFIUS). Read More ›
While the laundry list of challenges is familiar, last week's Financial Times analysis of China's shale oil gas industry makes interesting reading for any U.S. company trying to tap the China market. Whether it be underground reserves or untapped consumer demand, majors and middle-maket companies face the same myriad of "soft" challenges, including the absence of a mature legal structure, crowding out by giant SOEs and intellectual property risks. Read More ›
In recent days, we have seen Chinese firms becoming more aggressive and entering into the U.S. market wanting to invest. Fosun, a Shanghai based firm, recently purchased the One Chase Manhattan Plaza in New York for $725 million. Greenland Group, another Shanghai based firm, recently became a majority owner in a joint venture that will develop a commercial real estate project in downtown Brooklyn. Earlier this year, a Chinese property developer became a 40% stakeholder in the General Motors Building in Manhattan. Read More ›
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