Court Rulings/Decisions

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Two cases decided 25 years apart, but there were some facts in common: a hot drink, a consumer alleging that she was burned by the drink, and a lawsuit. These are the facts of the 1994 case Liebeck v. McDonald’s Restaurants that resulted in an award of millions to the consumer, but also the facts from Shih v. Starbucks, a case decided last year. In Shih, however, the court found in favor of the product supplier. What’s different about these cases? The answer: how the courts interpreted proximate cause.…
Continue Reading The Hot Coffee Case Revisited: Has Proximate Cause Changed in the 25 Years Since Liebeck v. McDonald’s Restaurants?

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Plaintiffs are filing an increasing number of lawsuits against companies alleging that their websites violate Title III of the Americans with Disabilities Act (ADA) because the sites are not accessible to visually impaired customers. But these lawsuits assume an answer to an unresolved question: does Title III apply to websites? Title III applies to “places of public accommodation” and prohibits discrimination on the basis of an individual’s disability. Yet neither the statute nor the accompanying regulations state that websites are places of public accommodation, leaving courts (or Congress) to determine whether websites are required to comply with Title III.…
Continue Reading ADA Website Litigation: Eleventh Circuit Holds Website is Not Subject to Title III

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U.S. companies have been inundated with lawsuits in the past several years alleging that their websites do not comply with the Americans with Disabilities Act (ADA) and various state laws, including the California Unruh Act. Plaintiffs claim that the websites do not meet the Web Content Accessibility Guidelines (WCAG) created by the nonprofit World Wide Web Consortium because visually impaired consumers allegedly cannot access the sites using screen-reader software. While it is difficult to determine with precision the number of cases that have been filed, they have increased 75 percent from just over 2,000 reported cases in 2018 to approximately 3,500 in 2020 – and the numbers are steadily rising. The cases target all manner of business across a wide range of industries.…
Continue Reading ADA Website Litigation Continues to Proliferate in 2021

Judges Gavel

On February 2, 2021, the Eleventh Circuit weighed in on the “ascertainability” debate raging in the federal courts – specifically, whether plaintiffs must show that it would be “administratively feasible” to identify class members before the class can be certified. The term “ascertainability” is not in the text of Federal Rule of Civil Procedure 23. Some courts, however, view ascertainability as an implicit requirement of a properly defined class. Other courts take it a step further and embrace a “heightened ascertainability” standard – i.e., “administrative feasibility” – and deny certification when plaintiffs fail to prove that the process for identifying absent class members will be administratively feasible.…
Continue Reading The Eleventh Circuit Joins the Majority in Rejecting a Heightened Ascertainability Requirement for Class Actions

Punitive damages can often multiply a defendant’s potential exposure in litigation. A recent California appellate court decision, however, may make it easier for defendants to obtain summary judgment for punitive damages claims before a jury may consider a possible award. In Morgan v. J-M Manufacturing Company, Inc.,[1] the court vacated a $15 million punitive damages award because there was insufficient evidence to support the award. In fact, the court emphasized that there was no evidence that any corporate officer, director, or managing agent authorized or ratified any wrongful conduct, which a plaintiff must show under California law for a jury to award punitive damages. The ruling could signal that courts are requiring more specific evidence showing corporate defendants authorized or ratified wrongdoing, which in turn could help defendants get punitive damages claims dismissed before trial or awards vacated on appeal.…
Continue Reading California Appellate Court Vacates $15 Million Punitive Damages Award

Asbestos Thermal Pipe Insulation

Several state and federal courts have recently addressed a hot-button issue in product liability law: whether the manufacturer of a product that has an asbestos-containing replacement part that causes injury may be liable even if the manufacturer itself did not manufacture or supply the replacement part. Consider this example: a manufacturer produces a steam trap or boiler that contains an asbestos gasket that needs to be replaced from time to time. Third parties supply the replacement gaskets. Is the original product manufacturer liable for injuries allegedly caused by the asbestos-containing replacement gaskets?…
Continue Reading Whelan v. Armstrong Int’l, Inc.: Latest Asbestos Ruling Expands Manufacturer Liability for Injuries

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In a decision with potentially far-reaching consequences for class actions, a divided panel of the U.S. Court of Appeals for the Eleventh Circuit held that the ubiquitous practice of awarding a class representative an “incentive” payment as part of a class action settlement is impermissible. Johnson v. NPAS Solutions, Inc., No. 18-12344, ___ F.3d ____, 2020 WL 5553312 (11th Cir. Sept. 17, 2020).…
Continue Reading Eleventh Circuit Rules That Class Representative Incentive Awards Are Impermissible

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Attorneys have a duty to preserve evidence when bringing or defending claims.

In many jurisdictions, even accidental losses of evidence can lead to sanctions. For example, last year, an MMA fighter was sanctioned after a bottle of supplements critical to his suit against the manufacturer was lost in transit.[1] The court instructed the jury that it could draw an adverse inference based on the lost evidence.

Courts may also impose these sanctions where evidence is lost before a lawsuit is ever filed, if the litigation was foreseeable. Attorneys must therefore keep this duty to preserve evidence in mind after a dispute arises and remind clients to do the same.…
Continue Reading Practice Pointer: Potential Consequences for Inadvertent Spoliation of Evidence

U.S. Supreme Court Building in Washington DC USA

We have previously written about various strategies that defendants use to remove cases to federal court (see here, here, and here). Today we are writing about one that defendants should pursue in cases when the tort occurs on federally owned land: “federal enclave” jurisdiction. Though there is not much case law on the topic, at least three circuit courts and many district courts have held that district courts have original jurisdiction over these matters. And it may be the case that a defendant can make a federal enclave argument in conjunction with other arguments for removal or on its own.…
Continue Reading Federal Enclave Jurisdiction: Strategies for Removal to Federal Court When a Tort Occurred on Federal Land

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It’s getting more complicated to take and defend depositions because of the COVID-19 pandemic. And now there is a proposed new change to the Federal Rules of Civil Procedure that would require parties to confer before a plaintiff takes the deposition of a corporate representative. Specifically, the Judicial Conference Advisory Committee on Civil Rules has proposed an amendment to Federal Rule of Civil Procedure 30(b)(6) that requires parties to confer in good faith before the deposition takes place about both the topics and the identity of the witness or witnesses.…
Continue Reading What’s Ahead: An Amendment to Rule 30(b)(6) That Requires Parties to Confer