News


  • 16 Feb 2018 1:35 PM | Kathi McKeown (Administrator)

    DRI Submits Amicus Brief with Supreme Court in China Agritech Inc. v. Michael Resh, et al.

    Seeks Overturn of Lower Court Decision Involving Tolling of Statutes of Limitations

    CHICAGO – (February 7, 2018) — DRI-The Voice of the Defense Bar has filed an amicus curiae brief in the United States Supreme Court, urging the Court to overturn a Ninth Circuit opinion expanding the decades-old doctrine for tolling of limitations periods on individual claims while the putative class action was pending and until certification was denied. The brief was filed by DRI’s Center for Law and Public Policy.

    Decades ago, the Supreme Court created a limited equitable tolling rule for federal class actions. Under American Pipe & Construction Co. v. Utah, (1974), and later in Crown, Cork, & Seal Co. v. Parker, (1983), the filing of a timely putative class action under Rule 23 pauses the limitations clock for individual prospective class members until class certification is decided. If certification is denied, each individual plaintiff has whatever is left of the limitations period to seek relief on his or her own behalf. The Court found that this rule serves the efficiency goal of Rule 23 by preventing multiple protective suits by individuals before the statute of limitations expires. American Pipe tolling, as originally conceived, is of limited duration, and therefore reflects what the Court then believed to be an equitable balancing of competing interests.

    This Ninth Circuit’s decision, however, expanded this doctrine to allow an individual whose limitations period was tolled during the pendency of an earlier action that was denied class treatment to file a new action, not as an individual action only—as addressed in American Pipe—but as a putative class action. The Ninth Circuit’s ruling therefore permits the indefinite suspension of statutes of limitation by class action plaintiffs through repetitive, serial class action filings.

    The potential for abuse and unfairness inherent in the “stacked” tolling that the Ninth Circuit’s approach allows is considerable. A business that defeats class certification achieves no finality, even if the federal statutory limitations period has expired. The plaintiffs’ counsel (or new counsel) may try again and again, shopping the case from judge to judge in hopes of obtaining a better result or coercing the defendant to settle to buy peace. Individuals who through lack of diligence or strategy failed to seek relief in timely fashion can have their claims “carried along” by successive class action filings indefinitely. And the businesses that are the primary target of class actions have no fixed date after which they can count on being able to close their books on potentially devastating financial exposure.                    

    DRI’s brief urges the Court to overturn this harmful precedent, which ignores the equitable principles and necessary balancing of interests that gave rise to American Pipe tolling in the first place. As the brief explains, class actions cast an ominous cloud over businesses, increasing uncertainty over litigation risk and exposure, often pressuring businesses to settle even non-meritorious claims. Relying on actual survey data, DRI’s brief highlights these and other negative consequences to American businesses and the economy from a rule indefinitely extending statutes of limitation for class action filings.

    Brief co-authors were Robert L. Wise, Bowman and Brooke, Richmond, VA, and Susan E. Burnett of Bowman and Brooke LLP, Austin, TX, with assistance from Amanda Heitz. The co-authors are available for interview or expert comment through the contact information above.

    The complete text of the brief can be found here.

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    About DRI – The Voice of the Defense Bar

    For more than fifty-five years, DRI has been the voice of the defense bar, advocating for 22,000 defense attorneys, commercial trial attorneys, and corporate counsel and defending the integrity of the civil judiciary. A thought leader, DRI provides world-class legal education, deep expertise for policy-makers, legal resources, and networking opportunities to facilitate career and law firm growth. For more information, log on to www.dri.org

  • 16 Feb 2018 12:45 PM | Kathi McKeown (Administrator)

    2018 DRI Law Student Diversity Scholarships

    Application Deadline is Friday, March 30, 2018

     DRI announces its annual Law Student Diversity Scholarship program, open to rising (2018–19) second- and third-year African American, Hispanic, Asian, Native American, LGBT and multi-racial students. All rising second- and third-year female law students are also eligible, regardless of race or ethnicity. Any other rising second- and third-year law students who come from backgrounds that would add to the cause of diversity, regardless of race or gender, are eligible to apply. Students who are members of the American Association for Justice (AAJ), law school or law student members of AAJ, or students otherwise affiliated with or employed by AAJ are not eligible for DRI Law Student Diversity Scholarships. 

    To qualify for this scholarship, a candidate must be a full-time student. Evening students also qualify for consideration if they have completed one-third or more of the total credit hours required for a degree by the applicant’s law school. The goal of these scholarships is to provide financial assistance to two worthy law students from ABA-accredited law schools to promote, in a tangible way, the DRI Diversity Statement of Principle. 

    Two scholarships in the amount of $10,000 each will be awarded to applicants who best meet the following criteria: 

    • Demonstrated academic excellence
    • Service to the profession
    • Service to the community
    • Service to the cause of diversity

    Applications must be received by DRI no later than Friday, March 30, 2018. 

      

    The 2018 Law Student Diversity Scholarship winners will be notified in advance and officially announced at the DRI Diversity for Success Seminar and Corporate ExpoJune 14-15, at the Marriott Downtown Magnificent Mile, in Chicago, IL. Click on the image for more information. 

     

  • 06 Feb 2018 9:44 AM | Kathi McKeown (Administrator)

    KDC welcomes its newest member, Joseph Taylor Whitaker of Porter, Banks, Baldwin & Shaw, PLLC, Paintsville.  Mr. Whitaker is a University of Kentucky Law School graduates and practices in the areas of Appellate, Auto, Bad Faith, Business Litigation, Civil Rights, Construction, Contract, Education, Employment, General Liability, Government Entity, Insurance Coverage, Medical Malpractice, Municipal, Premises & Product Liability, Professional Liability, Property, Tort, Trucking, Utility and Workers' Comp.  He is sponsored by KDC President-Elect, Darrin Banks.

  • 27 Jan 2018 10:59 AM | Kathi McKeown (Administrator)

    KDC welcomes its newest member, Aaron R. Klein of Ward, Hocker & Thornton, PLLC, Louisville.  Mr. Klein graduated from Belmont University College of Law and practices in the areas of Auto, Business Litigation, Commercial, General Liability, Insurance, Premises, Proper & Tort.  He is sponsored by KDC member, Jarad Key.

  • 17 Jan 2018 12:38 PM | Kathi McKeown (Administrator)

    THE FOLLOWING IS REPRINTED FROM DRI'S JANUARY 17, 2018 ISSUE OF "THE VOICE:"

    Legal News

    Supreme Court Update
    Republished with the permission of the Mayer Brown Supreme Court Docket Report.

    On January 12, 2018, the Supreme Court granted certiorari in four cases of interest to the business community, described below.

    Patent Law—Damages for Profits Lost Abroad
    WesternGeco LLC v. ION Geophysical Corp., No. 16-1011

    A party commits patent infringement if it supplies “components of a patented invention” “from the United States,” knowing or intending that the components will be combined “outside of the United States” in a manner that “would infringe the patent if such combination occurred within the United States.” 35 U.S.C. § 271(f). The Federal Circuit has held that a plaintiff that successfully proves a claim under this provision is not entitled to the lost profits normally available to patent owners who prevail on infringement claims. That court’s view is that even when Congress has overridden the presumption against extraterritorial application of a statute in creating liability (as it did with § 271(f)), the presumption must be applied a second time to restrict damages. The Supreme Court has granted certiorari to resolve the question of “[w]hether the court of appeals erred in holding that lost profits arising from prohibited combinations occurring outside of the United States are categorically unavailable in cases where patent infringement is proven under 35 U.S. § 271(f).”

    Appointments Clause—Classification of Administrative Law Judges
    Lucia v. SEC, No. 17-130

    Under the Constitution’s Appointments Clause, the president “shall nominate and, by and with the Advice and Consent of the Senate, shall appoint . . . Officers of the United States.” Securities and Exchange Commission administrative law judges are generally selected by Commission staff, even though these judges preside over trial-like adversarial hearings. The Supreme Court has granted certiorari to decide “[w]hether administrative law judges of the Securities and Exchange Commission are officers of the United States within the meaning of the appointments clause.” The circuit courts have split 5–5 on this question.

    Dormant Commerce Clause—Taxation of Internet Sales
    South Dakota v. Wayfair, Inc., No. 17-494

    In 1967, the Supreme Court held that the Constitution’s dormant Commerce Clause prohibits a state from requiring catalog retailers to collect sales taxes on sales into the state unless the retailer is “physically present” there. But in 1977, the Court held that only a “substantial nexus” was necessary for other state taxes affecting interstate commerce. The petitioners in Wayfair ask the Supreme Court to reconsider the “physical presence” rule for sales taxes, arguing that its impact has “exploded with the rapid growth of online commerce.” The Supreme Court granted certiorari on the question of whether it should “abrogate” the “sales-tax-only, physical-presence requirement.”

    Bankruptcy Law—Fraud Exception to Discharge
    Lamar, Archer & Cofrin, LLP v. Appling, No. 16-1215

    The Bankruptcy Code prohibits the discharge of “any debt . . . to the extent obtained by . . . actual fraud, other than a statement respecting the debtor’s . . . financial condition.” 11 U.S.C. § 523(a)(2). Circuit courts have split 3–3 as to whether a statement about a particular asset can qualify as a “statement respecting the debtor’s . . . financial condition.” The Supreme Court has agreed to resolve that split. Mayer Brown LLP represents the respondent.

     

  • 15 Jan 2018 12:05 PM | Kathi McKeown (Administrator)
    Many thanks to the many KDC members who participated in our survey.  A lot of great information was received and will be used at our upcoming annual Long Range Planning meeting being held on February 3 in Lexington.


    The KDC members whose names were drawn to win $25 gift cards to their choice of Amazon, Target, Starbucks, Kroger or Shell are:

    Courtney Rosser

    Zac Richards

    James Fischer

    Brad Hume


  • 14 Jan 2018 10:39 AM | Kathi McKeown (Administrator)
    Amicus Update

    DRI Submits Amicus Brief Urging Supreme Court to Review Decision on Admissibility of Expert Testimony

    On December 20, 2017, DRI filed an amicus brief in the U.S. Supreme Court supporting the petition for a writ of certiorari in Teva Pharmaceuticals USA, Inc. v. Wendell, No. 17-747. The brief was filed through DRI’s Center for Law and Public Policy.

    The case raises two questions concerning the admissibility of expert testimony, a subject with enormous practical significance for litigation in federal and state courts nationwide. Almost 25 years ago, in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the Supreme Court articulated standards for federal trial courts to apply in determining whether an expert should be permitted to offer opinion testimony. In keeping with the trial court’s “gatekeeper” role in determining whether expert testimony should be admitted or excluded, the Court held a few years later that decisions on expert-admissibility would be reviewed on appeal under the abuse-of-discretion standard.

    At issue in Teva v. Wendell, is the proposed testimony of two doctors on the issue of causation in a case alleging that prescription pharmaceutical drugs manufactured and distributed by defendants caused a patient to develop an exceedingly rare and aggressive form of cancer. The district court granted defendant Teva’s motion for summary judgment because the testimony of plaintiffs’ causation experts was not reliable and therefore not admissible under Federal Rule of Evidence 702. The U.S. Court of Appeals for the Ninth Circuit reversed and remanded. In the Ninth Circuit’s view, “Daubert poses no bar” and the contested testimony “should have been admitted as expert testimony.” The appellate court reached that conclusion by applying de novo review to the question “whether particular evidence falls within the scope of [Rule 702].”

    DRI’s amicus brief urges the Court to grant review to resolve circuit court conflicts on both questions presented in the petition: (1) the standard for appellate review of expert-admissibility rulings, and (2) the standards for determining when proposed expert testimony is sufficiently reliable to be presented to a jury. DRI explains that these issues have broad application to litigation across the country; that the issues have enormous practical significance given the pivotal—often dispositive—role that expert testimony plays in complex litigation; and that nationwide uniformity is essential to “the fair, orderly administration of justice.” The brief explains that Supreme Court review is also warranted because the issues “affect counsel for plaintiffs and defendants (whether they support or oppose an expert in a particular case).”

    DRI’s brief was authored by Jerrold J. Ganzfried, founder of GANZFRIED LAW in Washington, D.C. Mr. Ganzfried is a fellow of the American Academy of Appellate Lawyers, and is a former chair and current member of the DRI Amicus Committee.

  • 08 Jan 2018 11:11 AM | Kathi McKeown (Administrator)

    KDC member, Barry Miller, will be presenting at a Lunch and Learn on February 1st pertaining to Law Firms and Cybersecurity.  One hour of free CLE and lunch.  Click below to learn more.  (This is not a KDC event, but merely promoting Barry's presentation!)

    Advantage Lunch February 2018 - Email.jpg


  • 08 Jan 2018 10:47 AM | Kathi McKeown (Administrator)
    KDC member, Gregory Funfsinn, is now practicing with Hicks & Funfsinn, PLLC, Lexington.  His firm is located at 431 S. Broadway, Suite 331.
  • 27 Dec 2017 2:32 PM | Kathi McKeown (Administrator)

    Congratulations to three KDC members that were named 2018 Super Lawyers Rising Stars -- Jamie Dittert, Langdon Worley & Stephanie Wurdock.  All three attorneys practice with Sturgill, Turner, Baker & Moloney, PLLC, Lexington.


 
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