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Employment Practices

[12/29]
[01/24] Job bias claims at record level
[01/11] Pepsi Beverages pays $3.1M in racial bias case
[01/11] Md. man's leave lawsuit lands in Supreme Court
[01/11] Court:Judges cannot get involved in church dispute

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Case Summaries

Commercial Law

[02/01] In re American Express Merchants' Litigation
In a class action asserting Sherman Act claims, brought against a charge card issuer whose card acceptance agreement purported to preclude a merchant from bringing a class action lawsuit, the district court's grant of the defendant's motion to compel arbitration and dismissal of the case is reversed, where the cost of plaintiffs' individually arbitrating their dispute with the defendant would be prohibitive, effectively depriving them of the statutory protections of the antitrust laws, and thus the class action waiver in the arbitration provision was unenforceable.

[01/27] C9 Ventures v. SVC-West, L.P.
In a personal injury suit in which a lessor of helium-filled tanks used to inflate festive balloons cross-complained against the lessee to enforce an indemnification provision on the back of an unsigned invoice, the trial court's judgment in favor of the lessor and award of attorney fees to it is reversed, where: 1) the lessee did not manifest assent to the terms on the back of the unsigned invoice by course of dealing or course of performance, or under basic contract law; 2) the lessee did not sign the invoice or otherwise expressly agree to its terms; 3) an unsigned invoice itself is not a contract, and repeated delivery of a particular form does not make the form part of the parties' agreement; 4) payment of the invoice merely constituted the lessee's performance of the obligation under the oral contract to pay for the rental of the helium-filled tanks; and 5) assuming the transaction was a sale of goods covered by division 2 of the California Commercial Code, the indemnification provision was not an additional term of the contract under section 2207 of the Commercial Code.

[01/24] Long v. Tommy Hilfiger U.S.A. Inc.
In a putative class action against a men's clothing retailer alleging that its printing of “EXPIRY: 04/##” on a credit card receipt willfully violated the Fair and Accurate Credit Transactions Act (FACTA)'s prohibition against printing the expiration date of the a credit card upon any receipt provided to the cardholder at the point of the sale, the district court's grant of the defendant's motion to dismiss is affirmed, where: 1) FACTA prohibits a merchant from printing expiration date information on a receipt provided to the consumer, even if the year is redacted; but 2) the defendant's interpretation of FACTA, although erroneous, was at least objectively reasonable, and thus there was no "willful" violation that could support a claim.

[01/24] Mabey Bridge & Shore, Inc. v. Schoch
In a suit by a corporation engaged in the business of supplying temporary steel bridges for construction projects, seeking a declaration that the Pennsylvania Steel Products Procurement Act, as interpreted and enforced by the Pennsylvania Department of Transportation (PennDOT), is unconstitutional, and requesting a preliminary and permanent injunction enjoining PennDOT from prohibiting the use of the company's temporary bridges on its projects, the district court's grant of summary judgment against the company on all its claims is affirmed, where: 1) the state Steel Act was not preempted by the federal Buy America Act and related federal regulations; 2) the Steel Act is not unconstitutional under the dormant Commerce Clause; 3) PennDOT's actions did not violate the Contract Clause; and 4) PennDOT's application of the Steel Act did not violate the Equal Protection Clause.

[01/20] Khan v. Dell Inc.
On a motion to compel arbitration brought by a defendant computer manufacturer in a case alleging design defects brought as a putative consumer class action by a purchaser, the district court's judgment denying the motion is vacated and the case remanded, where: 1) the arbitration agreement in the purchase contract did not indicate the parties' unambiguous intent not to arbitrate their disputes if the named arbitrator was unavailable; and 2) Section 5 of the Federal Arbitration Act requires a court to address such unavailability by appointing a substitute arbitrator.

[01/17] Antilles Cement Corp. v. Fortuno
In a suit by an importer of foreign cement seeking a declaratory judgment that two statutes of Puerto Rico violate the dormant foreign commerce clause, the district court's judgment invalidating the statutes is affirmed in part and reversed in part, where: 1) the federal Buy American Act does not preempt the statutes; 2) Puerto Rico, by its statute requiring that local construction projects financed with funds from the federal government or the Commonwealth of Puerto Rico use only construction materials manufactured in Puerto Rico, is acting as a market participant not subject to the Commerce Clause; and 3) certain provisions of Puerto Rico's statute imposing labeling requirements on cement sold in Puerto Rico discriminate against sellers of foreign cement in violation of the dormant foreign commerce clause.

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Contracts

[02/01] GECCMC 2005-C1 Plummer Street Office L.P. v. JPMorgan Chase Bank, N.A.
In a suit alleging breach of lease agreements that the defendant bank assumed after it purchased a failed bank's assets and liabilities from the FDIC pursuant to the terms of a written purchase and assumption agreement, the district court's grant of the bank's motion to dismiss is affirmed, where under federal common law, the plaintiff lacked standing to bring suit under the agreement because it was not an intended third-party beneficiary of the agreement.

[01/27] C9 Ventures v. SVC-West, L.P.
In a personal injury suit in which a lessor of helium-filled tanks used to inflate festive balloons cross-complained against the lessee to enforce an indemnification provision on the back of an unsigned invoice, the trial court's judgment in favor of the lessor and award of attorney fees to it is reversed, where: 1) the lessee did not manifest assent to the terms on the back of the unsigned invoice by course of dealing or course of performance, or under basic contract law; 2) the lessee did not sign the invoice or otherwise expressly agree to its terms; 3) an unsigned invoice itself is not a contract, and repeated delivery of a particular form does not make the form part of the parties' agreement; 4) payment of the invoice merely constituted the lessee's performance of the obligation under the oral contract to pay for the rental of the helium-filled tanks; and 5) assuming the transaction was a sale of goods covered by division 2 of the California Commercial Code, the indemnification provision was not an additional term of the contract under section 2207 of the Commercial Code.

[01/26] Lopez & Medina Corp. v. Marsh USA, Inc.
On appeal of a rejected cross-motion for summary judgment that argued that an insurance policy's coverage expressly applied to an airline's underlying claims for damages arising from the insured's failure to provide air transportation, as contractually required, to the airline's passengers, the district court's order denying the motion is affirmed, as the phrase "legally obligated to pay as damages" in a commercial general liability policy, which usually covers only tort claims, does not also provide coverage for claims in an underlying action arising out of and related to a contract between the parties.

[01/25] Klein v. Chevron U.S.A., Inc.
In a class action complaint predicated on the defendant's practice of purchasing wholesale motor fuel in gallon units at a standardized temperature of 60 degrees Fahrenheit, but selling motor fuel to California consumers at an average temperature of approximately 70 degrees, the trial court's order granting the defendant's motion for judgment on the pleadings is reversed, and its order sustaining the defendant's demurrer to the plaintiffs' claims for breach of contract, unjust enrichment and unlawful business practices under the Unfair Competition Law (UCL) is affirmed in part and reversed in part, where: 1) the trial court erred in dismissing the plaintiffs' UCL and Consumer Legal Remedies Act (CLRA) claims pursuant to the judicial abstention doctrine; 2) the plaintiffs had standing to assert, and the complaint stated a cause of action for, violation of the UCL and CLRA; 3) the plaintiffs failed to state a claim for breach of contract; and 4) the trial court did not err in sustaining the defendant’s demurrer to the plaintiffs' unjust enrichment claim.

[01/24] In the Matter of Thorpe Insulation Co.
In a bankruptcy case in which several insurance companies that did not reach settlements with the debtors were not allowed to challenge the Chapter 11 reorganization plan, the district court order issuing and affirming the plan is reversed with instructions on remand, where: 1) the appeal was not equitably moot; 2) the appellants met statutory, constitutional, and prudential standing requirements; 3) the appellants had standing in bankruptcy court to object to confirmation of the plan; and 4) anti-assignment provisions contained in contracts between the appellants and debtors were preempted by federal bankruptcy law.

[01/20] CRM Collateral II, Inc. v. TriCounty Metropolitan Transportation Dist. of Oregon
In proceedings following default on a standby letter of credit, the district court's disposition of the case on cross-motions for summary judgment is reversed and the case remanded, where: 1) the district court incorrectly concluded that the applicant for the letter of credit was a surety and erroneously permitted it to assert the defense of discharge; and 2) the applicant was not entitled to an award of damages because the beneficiary's draw on the letter of credit did not violate the statutory warranty to the applicant that the drawing did not violate any agreement between the applicant and the beneficiary.

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Corporation & Enterprise Law

[02/03] Lawson v. FMR, LLC
In two separate but related cases under the whistleblower protection provision of the Sarbanes-Oxley Act of 2002, alleging unlawful retaliation by employers that are private companies that act under contract as advisers to and managers of mutual funds organized under the Investment Company Act of 1940, the district court's denial of motions to dismiss for failure to state a claim is reversed, as the whistleblower protection afforded by section 806(a) of the Act applies only to the employees of public companies as defined in the Act, and not to an employee of a contractor or subcontractor of a public company reporting suspected violations relating to fraud against shareholders of the public company.

[01/26] The DIRECTV Group, Inc. v. US
In a case involving the calculation and payment of segment closing adjustments associated with a corporation's sale of certain business units that included the transfer of defined benefit pension plans, the decision of the United States Court of Federal Claims granting summary judgment in favor of the corporation is affirmed, where: 1) the Claims Court did not err by calculating segment closing adjustments based on the assets and liabilities of the entire segment, rather than only the assets and liabilities that the corporation retained; and 2) the Claims Court correctly determined that the corporation's segment closing obligations could be satisfied by the cost savings realized by the government in the successor contracts.

[01/24] TIFD III-E, Inc. v. US
In a suit by a taxpayer partner challenging IRS notices of adjustment reallocating a large percentage of the partnership's income for the years 1993 to 1998 to the taxpayer away from two Dutch banks that had purchased an interest in the partnership, and imposing a penalty for underpayment, the district court's judgment in favor of the taxpayer is reversed, where: 1) the banks' interest was not a capital interest for purposes of qualifying them as partners within the meaning of IRC section 704(e)(1); and 2) the taxpayer failed to point to substantial authority supporting its position, so that the government was entitled to impose a penalty on the taxpayer for substantial understatement of income.

[01/20] Huppe v. WPCS International Inc.
In a shareholder derivative action seeking disgorgement of short-swing profits realized by two limited partnerships that were beneficial owners of more than 10 percent of the shares of the issuer, the district court's grant of summary judgment in favor of the plaintiff is affirmed, where: 1) the stock purchases were not exempt from Section 16(b) of the Securities Exchange Act of 1934 or SEC Rule 16b-3(d) even though they were made at the issuer's request and with the board’s approval; and 2) under the definition of "person" in Section 16(b) and basic principles of agency law, the limited partnerships were beneficial owners for the purposes of determining ten percent holder status under Section 16(b), notwithstanding their delegation of voting and investment control over their securities portfolios to their general partners' agents.

[12/30] Payne v. Lampe
In an appeal from an order of the district court affirming the Bankruptcy Court's order dismissing an action against the former custodian for the shares owned by a minor, order is vacated where defendant-custodian breached his fiduciary duties when he secured and retained an amount in partial satisfaction of a judgment that he obtained against a family business of which he was a director and in which he and the minor-beneficiary were the shareholders of record.

[12/29] In Re: Nortel Networks, Inc.
In an appeal from a judgment of the district court upholding the bankruptcy court's enforcement of a Section 362(b)(4) automatic stay against appellants, judgment is affirmed where appellants failed to show that they fall within the police power exception to the stay.

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Trade Secrets

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