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Revisiting Standing -- Ninth Circuit Opens Door For Antitrust Exposure

The Ninth Circuit recently issued a decision that increases the level of antitrust risk exposure faced by companies. 

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TAGS: Antitrust, Class Action Litigation, Litigation
CONTACT: Collin L. Ryan

Another Shot at Ascertainability in Class Certification

Last week, the Ninth Circuit deepened the divide among the Circuits regarding ascertainability in class certification. In Briseno v. ConAgra Foods, Inc., 2017 U.S. App. Lexis 20 (9th Cir. Jan. 3, 2017), the Ninth Circuit rejected the Third Circuit’s line of authority (see Carrera v. Bayer Corp., 727 F.3d 300 (3d Cir. 2013) and Byrd v. Aaron’s Inc., 784 F.3d 154 (3d Cir. 2015)) which requires plaintiffs’ counsel to show ascertainability by demonstrating an administratively feasible and reliable method to determine class membership at the class certification stage.

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Yet Another Reason to Read the Fine Print: Allied Industrial Scrap, Inc. v. Omnisource, Corp. (6th Cir. 2015)

Late television curmudgeon Andy Rooney is said to have observed that “nothing in fine print is good news.” Based on a recent decision from the Sixth Circuit, the fine print can be good news for some, and costly for others.

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Rule 502(d) Orders and the Attorney-Client Privilege

In today’s increasingly data-driven world, compliance with discovery requirements can mean production of hundreds of thousands of pages of documents, if not millions. Federal Rule of Evidence 502(d) was enacted to reduce the costs and risks associated with discovery, and to allow a federal court to protect the privilege of documents that have been inadvertently disclosed. Federal Rule of Evidence 502(d) provides that “a federal court may order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court – in which event the disclosure is also not a waiver in any other federal or state proceeding.”

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Use and Abuse of Attorney-Client Privilege and Work Product Doctrine in E-Discovery

Two  federal courts recently dealt with thorny issues stemming from defendant employers’ use of the attorney-client privilege and work product doctrine. These rulings should be heeded by those of us who develop or revise electronic data review protocols, particularly any  guidance for determining when to withhold documents under the attorney-client privilege or the work product doctrine.

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The Search for the Goldilocks firm

Searching for the right team to help in a litigation matter often means looking for the Goldilocks firm.  As companies and in-house counsel are under increasing pressure to find quality representation at lower costs, there are lots of paper proposals and tough decisions to make.  Big Law has high overhead that comes with multiple offices and mergers/expansion, which translates to higher billing rates (with multiple firms now having partners billing at over $1,000/hr) and more bodies on matters.

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TAGS: Litigation, Lower Costs, Quality Representation

The Supreme Court and CAFA - Take 2

The Supreme Court has granted a certiorari petition in Mississippi v. Au Optronics Corp., S. Ct. Case No. 12-2036, and agreed to decide an issue that will impact the growing number of attorney general civil lawsuits around the country: "[w]hether a state's parens patriae action is removable as a 'mass action' under the Class Action Fairness Act when the state is the sole plaintiff, the claims arise under state law, and the state attorney general possesses statutory and common-law authority to assert all claims in the complaint."

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TAGS: CAFA, Class Action Litigation, Litigation

New Standard for Section 11 Liability in the Sixth Circuit

Last week, the Sixth Circuit issued a ruling which defined the standard in the Sixth Circuit for liability under Section 11 of the Securities Act of 1933, created a circuit split, and likely garnered the attention of the Supreme Court. 

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E-Discovery Vendor or Partner: It’s All in the Name

A quick glance at  Dictionary.com reveals the following definitions for the word ‘vendor’ vs. the word ‘partner’:

vendor:
-noun
1.        a person or agency that sells.

partner:
-noun
1.        a person who shares or is associated with another in some action or endeavor; sharer; associate.

How do you and your organization view your relationship with your external e-discovery service provider(s), as those of a vendor, or those of a partner?  Frequently razzed about my overt avoidance of the word ‘vendor’ when seeking e-discovery RFP project consultations and bids at the onset of a new litigation matter, the word ‘vendor’ still never fails to leave a sour taste in my mouth. 

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Ohio Sanitary Landfill Deemed a Public Utility for Zoning Purposes and Exempt from Zoning Restrictions

The law firm of Keating Muething & Klekamp represented Rumpke Sanitary Landfill in a three‑year long battle to have the largest sanitary landfill in Ohio declared a public utility under the Township zoning statute and, therefore, exempt from zoning restrictions.  It is the first case decided in Ohio declaring a sanitary landfill a public utility. 

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TAGS: Land Use & Zoning, Litigation

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