April 9, 2008

• Third Circuit affirms preemption in split decision in Colacicco v. Apotex Inc.. [Beck/Herrmann; Legal Intelligencer/law.com via TortsProf; Pharmalot; earlier: Dec. 2007]
• More on McLaughlin v. American Tobacco Co. (Apr. 3) decision. [Scheuerman; Sebok @ FindLaw; NYLJ/law.com; Class Action Defense blog; NY Times; NY Sun]
• Seventh Circuit affirms dismissal of scheme liability allegation. [Pugh v. Tribune Co. via Roberts]
• L.R. writes us: "In Egelhof v. Szulik, 2008 WL 352668 (N.C. Super. Feb. 4, 2008) a NC state court banned Robbins Umeda & Fink (one of the leading plaintiffs firms for derivative suits - Robbins is the brother of the Robbins at Coughlin Stoia) from appearing in NC courts for five years because of their mishandling of a derivative case against Red Hat. Notably, they put up a plaintiff with whom they had had virtually no contact and who was obviously unsuited to bring the case." [Triangle Business Journal]
• Split decision in Tenth Circuit: okay to sue expert for testimony that hurts your case. (The expert changed his mind at a deposition after opposing counsel showed him evidence that the propounding attorney chose to conceal from the expert in soliciting his opinion.) Dissent from recently appointed Judge Gorsuch correctly bemoans effect on truth-seeking function of judicial system. [Pace v. Swerdlow; Overlawyered roundup of links]
• Aside from the Scruggs disqualification, two Katrina decisions, both of them good for the rule of law and contract: Sher v. Lafayette Insurance Co. (La.) reverses court decision declaring flood exclusion ambiguous; Fifth Circuit reverses JMOL and vacates punitive damages in Broussard v. State Farm (see earlier discussion Jan. 2007). (Updated to add: the whole point of this bullet point was to highlight the continued excellent blogging of David Rossmiller, and I somehow failed to do so. Apologies.)
• Perhaps less good for the Rule of Law: SCOTUS rules that Federal Arbitration Act is not sufficiently flexible to permit parties to voluntarily contract for additional judicial review of arbitral decisions. Why the arbitration industry thought this would be a good result is beyond me: the point of arbitration is to permit parties to contractually select rules of decision outside of the default rules, not to create a second inflexible default. [Hall Street Assoc. LLC v. Mattel, Inc.; Sarah Cole on other problems] However, the National Arbitration Forum suggests that a recent Judge Posner opinion, Edstrom Industries, Inc. v. Companion Life Insurance Co., 516 F.3d 546, 550 (7th Cir. 2008), shows that the Hall Street ruling is narrow, because parties have other mechanisms to contract around the limited judicial review to ensure review of legal decisionmaking.