Gruff Judge Nottingham, on the bench
since 1989.
As federal jurors in Denver deliberate on the insider trading charges against former Qwest chieftain Joseph P. Nacchio, Blawgletter stumbled across a blawg-worthy reminder of the stakes. As U.S. District Judge Edward Nottingham instructed the jury:
The question can never be will the government win or lose this case. The government always wins when justice is done.
By Jove, we think he’s got it.
Barry Barnett
Blawgletter(TM) knows that the Patent and Trademark Office can’t register marks that merely describe a service and can’t designate a source of the service. The owner of Martindale-Hubbell learned the same thing the hard way today, when the Federal Circuit upheld the PTO’s refusal to register "lawyers.com", rejecting it as "generic" under the Lanham Act. In re Reed Elsevier Properties, Inc., No. 06=1309 (Fed. Cir. Apr. 12, 2007).
As many of you may recall, Blawgletter(TM) has submitted our own application for registering the utterly non-generic Blawgletter(TM) mark. Utterly non-generic, we tells ya.
Barry Barnett
Remember eBay Inc. v. MercExchange LLC, 126 S. Ct. 1837 (2006), in which the Court disapproved the routine granting of permanent injunctions to prevent patent infringement unless the infringer shows exceptional circumstances? The Federal Circuit does. Today it affirmed a judgment of willful infringement but vacated the district court’s permanent injunction because the court used the pre-eBay standard. Acumed LLC v. Stryker Corp., Nos. 06-260 & 06-437 (Fed. Cir. Apr. 12, 2007) (involving patent on orthopedic nail for funny bone).
As Blawgletter likes to say — Katie, bar the door.
Barry Barnett
After his heart attack, Thomas Wenner received benefit payments under his employer’s disability plan; but the insurer, Sun Life, later cut him off. The Sun Life notice letter cited Mr. Wenner’s failure to provide medical and personal activity information. But the insurer in fact ended benefit payments because it concluded that Mr. Wenner no longer suffered a disability.
The Sixth Circuit today reinstated Mr. Wenner’s benefits. It held that Sun Life violated ERISA section 503 by not giving Mr. Wenner a full and fair opportunity to contest the true basis of termination. The court believed that citing one reason for ending benefits (failure to furnish information) but basing termination on another reason (lack of disability) deprived Mr. Wenner of his right to challenge Sun Life’s decision. Wenner v. Sun Life Assur. Co. of Canada, Nos. 05-6534 & 05-6740 (6th Cir. Apr. 12, 2007).
Barry Barnett
Let us stipulate that MSNBC fired Don Imus today for commercial reasons. Let us further concede that CBS radio will likely do the same, and with the same rationale, soon. And let us still more admit that Mr. Imus has hurled plenty of epithets in his almost 40 years of comedic broadcasting — so much so that MSNBC and CBS must feign shock as they denounce his line-crossing in reference to members of the Rutgers women’s basketball team.
None of that matters. The youth of Mr. Imus’s latest victims should have stayed his mighty clout. Thoughts of their proud families and friends ought to have made deployment of his scabrous wit unthinkable. He owes them more than an apology.
Barry Barnett
Earlier today, Blawgletter reported a Tenth Circuit decision, under Kansas law, exonerating an insurer that at first refused to pay on a claim but later tendered policy limits. Meanwhile, the Eleventh Circuit held today, under Florida law, that an insurer’s post-litigation offer to pay policy limits doesn’t defeat a bad faith claim arising from the delay. Macola v. Government Employees Ins. Co., No. 04-10436 (11th Cir. Apr. 11, 2007) (accepting answers to questions that court certified to Florida Supreme Court).
The decisions strike Blawgletter as in tension if not outright conflict — except when you consider that one applies Sunflower State law and the other Sunshine State law. That may make all the difference.
Barry Barnett
The Eleventh Circuit today rendered a significant — and 77-pages-long — decision under the Class Action Fairness Act. Happily, the court summarized its holdings:
First, we hold that any one defendant authorized under CAFA to remove the plaintiffs’ claims against that defendant to federal court may remove the action as a whole, regardless of whether other defendants in the action would be authorized to remove their claims.
Second, we hold that CAFA sets forth at least four threshold requirements for a federal court to have subject matter jurisdiction over a removed mass action. Where the parties are minimally diverse, the action consists of 100 plaintiffs or more, the plaintiffs’ claims share common questions of law or fact, and the potential aggregate value of all the claims exceeds $5,000,000, the action may be removed to federal court as a mass action.
Third, we hold that the defendants are not entitled to remand to the district court for limited jurisdictional discovery, nor may the district court conduct such discovery on its own initiative.
Moving to the merits, we hold that the defendants here are unable to meet their burden of establishing the requirements for federal jurisdiction over a mass action, because they are unable to establish that the plaintiffs’ claims are potentially valued at more than $5,000,000. Tracking § 1446(b), we note that the defendants’ notice of removal contained no document clearly indicating that the aggregate value of the plaintiffs’ claims exceeds that amount and, as such, they are unable to establish federal jurisdiction by a preponderance of the evidence.
In sum, though our reasoning diverges substantially from that of the district court, the disposition of this case remains the same. Remanding this action to state court was the appropriate course. The district court’s order is accordingly
AFFIRMED.
Lowery v. Alabama Power Co. , Nos. 06-1324 & 06-1325 (11th Cir. Apr. 11, 2007).
Barry Barnett
An insurer rejected an early settlement offer within policy limits but changed its mind after getting more information. The plaintiff said "too late" and proceeded to settle with the policy-holder for a confession of judgment, a covenant not to sue, and an assignment of claims against the insurer. The district court granted summary judgment for the insurer on the plaintiff-assignee’s claims, under Kansas law, for negligent and bad faith failure to settle, and the Tenth Circuit affirmed. "We would be turning the cause of action on its head by holding an insurance company liable where it eventually offered to settle the claim for the policy limits, but a claimant rejected the offer precisely in order to manufacture a lawsuit against the insurer for bad-faith refusal to settle." Wade v. EMCASCO Ins. Co., Nos. 05-3044 & 05-3054 (10th Cir. Apr. 10, 2007).
Barry Barnett
The Fifth Circuit yesterday decertified a nationwide class action alleging defects in side-impact air bag systems and sensors. The case involved 1998 and 1999 models of Cadillac DeVilles. The court found error in the district court’s failure to require plaintiffs to provide an "extensive analysis" of warranty law in the 51 jurisdictions from which class members hail. The court concluded that plenty of significant differences exist, precluding a conclusion that common issues will "predominate" over individual issues under federal Rule 23(b)(3). Cole v. General Motors Corp., No. 05-31070 (5th Cir. Apr. 10, 2007).
The decision follows a trend in federal appellate courts against Rule 23(b)(3) certification in cases arising out of state law claims under the Uniform Commercial Code. See, e.g., In re Bridgestone/Firestone, Inc., 288 F.3d 1012 (7th Cir. 2002) (decertifying nationwide class action over tire defects). The goal of uniformity in state commercial law has, shall we say, not materialized — as legislatures have fiddled with the UCC and state courts have interpreted even identical UCC provisions differently.
Blawgletter suspects that the trend will prompt plaintiffs’ lawyers to downsize their ambitions in seeking class certification under state laws. They may move toward state-wide class actions or multi-state ones in which they can show, through "extensive analysis", that the different states’ laws don’t differ in material ways. The multi-state approach involves more risk, and only the intrepid or overconfident may choose that path in future.
Barry Barnett
Yesterday, U.S. District Judge Susan Illston denied a summary judgment motion that challenged the standing of a newspaper subscriber and reader to bring antitrust claims against owners of major newspapers in the San Francisco Bay area. Her Honor held that the owners’ plan to consolidate ownership and divide markets threatens the kind of injury — in the form of higher prices and less "content diversity" — that section 16 of the Clayton Act aims to prevent. The decision clears the way for trial on April 30, 2007. Reilly v. MediaNews Group, Inc., No. C 06-04332 SI (N.D. Cal. Apr. 10, 2007).
Barry Barnett
