The question of first impression in the Ninth Circuit in U.S. Mortgage, Inc. v. Saxton, 494 F.3d 833 (9th Cir. 2007) was whether SLUSA allows amendment of the complaint in a removed action to plead around SLUSA and federal jurisdiction. The Eighth and Eleventh Circuits have refused to allow a plaintiff class to amend its way around a SLUSA dismissal where t ...

The defendants in Transcontinental Gas Pipeline Corp. v. Sociйtй d’Exploitation du Solitarie, 2007 U.S. Dist. LEXIS 67691 (E.D. La. Sept. 11, 2007), admitted that they had damaged the plaintiff’s pipeline with an anchor but sought to exclude the plaintiff’s experts’ testimony as to the extent to of the damage. First, defendants argued that the plai ...

The massive Average Wholesale Price multidistrict litigation (MDL) against pharmaceutical manufacturers is pending in the District of Massachusetts. Last year, District Judge Patti B. Saris denied the State of Arizona's motion to remand its case because the claims on behalf of Medicare Part B beneficiaries raised a substantial federal issue creating federal jurisdi ...

From Wells v. Xpedx, 2007 U.S. Dist. LEXIS 67000 (M.D. Fla. Sept. 11, 2007), an age discrimination (wrongful discharge) action: 1. Burden on Non-Moving Party to Produce Admissible Evidence. ‛Evidence produced by a nonmoving party to avoid summary judgment need not be in admissible form if it could be reduced to admissible form a ...

The Federal Rules of Civil Procedure and the Zubulake-driven case law frequently require parties to retain forensic electronic discovery experts. These vendors, though, can create nightmares (which, frankly, we’re quite capable of doing without expert assistance). In PSEG Power New York, Inc. v. Alberici Constructors, Inc., 2007 U.S. Dist. LEXIS 66 ...

The Eleventh Circuit’s standards for an adverse inference instruction are set forth in Judge B. Avant Edenfield’s opinion in Sapeu v. Bland, 2007 U.S. Dist. LEXIS 66606 (S.D. Ga. Sept. 10, 2007): [The] court must consider the following factors: (1) whether plaintiff was prejudiced as a result of the destruction of evidence; (2) whether ...

The stream-of-commerce theory of personal jurisdiction originated in the Supreme Court's decision in World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980), in which the Court held that the exercise of jurisdiction over a defendant is permissible when the sale of its product "is not simply an isolated occurrence, but arises from the efforts of the [ ...

International arbitration agreements usually identify the law that is to govern the parties’ relationship, but evidently not always. InCertain Underwriters at Lloyd's, London v. Argonaut Ins. Co., 2007 U.S. App. LEXIS 20620 (7th Cir. Aug. 29, 2007), the parties had a dispute under a reinsurance treaty that was silent in this respect. The arbitration clau ...

The defendant in Accuride Corp. v. Forgitron, LLC, 2007 U.S. Dist. LEXIS 60508 (N.D. Ohio Aug. 17, 2007), signed an arbitration clause but did not want to arbitration. Opposing the plaintiff’s motion to compel, it argued that the arbitration clause was not valid because it was not supported by consideration — it was part of a supply contract under which ...

The data that were lost in CSI Investment Partners II, L.P. v. Cendant Corp., 2007 U.S. Dist. LEXIS 66353 (S.D.N.Y. Sept. 7, 2007), were lost in a data conversion process that took place before this lawsuit was filed. The defendant argued that it could not be sanctioned for spoliation for data lost before it was on notice of the plaintiffs’ claim. But th ...