Gibbons Law Alert

Gibbons Law Alert

Tagged: Appeal

New York Court of Appeals Reconsiders and Holds That an Insurer May Invoke Policy Exclusions Despite Wrongful Refusal to Defend

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Posted in Insurance

On April 11, 2014

The New York Court of Appeals has vacated its recent decision in K2 Investment Group, LLC v. American Guarantee & Liability Insurance Co., reverting to the majority position that an insurer breaching its duty to defend an insured is not barred from relying on policy exclusions to defend a later claim for indemnification. The case originated from a related lawsuit where K2 Investment Group, LLC and ATAS Management Group, LLC (collectively, the “LLCs”) sued an attorney for legal malpractice.

The Sixth Circuit Reaffirms its Holding in Glazer v. Whirlpool Allowing Plaintiffs with Moldy Washers to Proceed United as a Class

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Posted in Class Action Defense

On October 21, 2013

The litigations involving allegedly defective Whirlpool washing machines are back in the legal headlines with the most recent installment hailing from the Sixth Circuit’s decision in Glazer v. Whirlpool Corp., a decision which—following remand from the Supreme Court of the United States—reaffirmed a prior order certifying a class action lawsuit. The Sixth Circuit’s certification order may, however, face scrutiny from the Supreme Court once again.

How Will the Supreme Court’s Decision in American Express Company v. Italian Colors Restaurant Impact Class Action Litigation

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Posted in Class Action Defense

On October 16, 2013

In American Express Company v. Italian Colors Restaurant, the Supreme Court recently furthered its holding in AT&T Mobility LLC v. Concepcion by making it clear that the Federal Arbitration Act (“FAA”) does not permit courts to invalidate contractual waivers of class arbitration on the ground that the plaintiff’s cost of individually arbitrating a federal statutory claim exceeds the potential recovery. Italian Colors reflects the “overarching principle that arbitration is a matter of contract,” and that “courts must rigorously enforce arbitration agreements according to their terms,” including terms that specify “with whom the parties will arbitrate,” as well as “the rules under which arbitration will be conducted.”

Third Circuit Emphatically Enforces Last Year’s Ruling in Marcus on Rule 23(a) Prerequisites

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Posted in Class Action Defense

On October 9, 2013

In Hayes v. Wal-Mart Stores, Inc., the Third Circuit determined that the plaintiff consumer failed to satisfy Rule 23’s ascertainability and numerosity requirements for class actions as articulated in Marcus v. BMW of North America, LLC and remanded the matter to the District Cout so that the plaintiff could address the clarified requirements expressed in Marcus, which was not yet decided at the time of the District Court proceedings in Hayes. By doing so, the Third Circuit demonstrated that it intends to continue vigilantly enforcing Rule 23’s threshold requirements for plaintiffs.

Citing Concepcion, Ninth Circuit Holds that FAA Preempts Montana State Law that Invalidates Mandatory Arbitration Clause

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Posted in Class Action Defense

On August 8, 2013

In Mortensen v. Bresnan Communications, LLC, the plaintiffs filed a putative class action against Bresnan Communications alleging violations of various federal and Montana state laws in connection with targeted advertising that they received as customers of high-speed, broadband Internet service. When signing up for the service, the plaintiffs had entered into a subscriber agreement that contained a mandatory arbitration provision and designated the application of New York law to all disputes. Applying the U.S. Supreme Court’s 2011 decision in AT&T Mobility LLC v. Concepcion, the Ninth Circuit found that the Federal Arbitration Act (“FAA”) preempted a Montana state law that the District Court had relied on to invalidate the mandatory arbitration clause.

Pennsylvania Superior Court Defines Standard for Determining Insurer’s Control of Litigation and Settlement When Seeking to Defend Insured Subject to a Reservation of Rights

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Posted in Insurance

On July 24, 2013

The Pennsylvania Superior Court recently set forth a new standard for determining when an insured must seek the insurer’s consent to settle underlying third-party claims where the insurer had previously offered to defend the insured under a reservation of its right to decline coverage for any adverse judgment that might be entered against the insured later.

New Jersey Appellate Division Takes “Hands-Off” Approach to Contractual Breaches of the Duty of Good Faith and Fair Dealing

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Posted in General Litigation

On May 21, 2013

In Sun Pharmaceutical Industries v. Core Tech Solutions, New Jersey’s Appellate Division affirmed a Trial Court order dismissing plaintiff’s claims that defendants had breached their contractual duty of good faith and fair dealing. The decision is notable because it sheds light on the definition of “good faith” in the context of a preliminary agreement, an area where there is little New Jersey precedent.

In Comcast, Supreme Court Reinforces Difficult Standard for Obtaining Class Certification

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Posted in Class Action Defense

On April 24, 2013

In its much-anticipated opinion in Comcast Corp. v. Behrend, the United States Supreme Court continued its recent trend of requiring a more demanding standard for plaintiffs seeking class certification. Citing its notable opinion in Wal-Mart Stores, Inc. v. Dukes, the Court made clear that district courts must conduct a rigorous analysis of plaintiffs’ evidence before certifying a proposed class, including addressing questions that ultimately bear on the merits.

Third Circuit Makes Approval of Class Action Settlements Including Cy Pres Distributions More Difficult

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Posted in Class Action Defense

On March 22, 2013

In In re Baby Products Antitrust Litigation, the Third Circuit vacated a district court’s approval of a $35.5 million class action settlement, finding it unreasonable that only $3 million of the settlement fund was to be distributed to class members. This marked the first time the Third Circuit has addressed the issue of cy pres distributions in class action settlements, and will likely lead district courts to subject class action settlements involving cy pres distributions to greater scrutiny.

Third Circuit: Challenges to Contract’s Validity Must Be Arbitrated, But Challenges to Contract’s Formation May Proceed in Court

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Posted in General Litigation

On March 1, 2013

In its recent decision in SBRMCOA, LLC v. Bayside Resort, Inc., the Third Circuit clarified when challenges to a contract containing an arbitration clause must be arbitrated and when they must be decided by a court. Emphasizing that the relevant distinction is between challenges to a contract’s validity, which are subject to arbitration, and challenges to a contract’s formation, which generally are not, the Court concluded that a claim that a contract was coerced must be arbitrated, but a claim that a contract was beyond a signatory’s authority or ultra vires requires judicial determination.

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