Duane Morris’ Thomas Newman Recognized as the NYC Appellate “Lawyer of the Year” by Best Lawyers

Duane Morris’ Thomas Newman has been named by Best Lawyers as the “Lawyer of the Year” in New York City Appellate Practice for 2018. The recognition is given to only one attorney for each practice area and city. Lawyers are selected based on high marks received during peer-review assessments conducted by Best Lawyers each year.

Mr. Newman practices in the areas of insurance and reinsurance law, including coverage, claims handling, contract drafting and arbitration and litigation. In addition to his insurance/reinsurance practice, Mr. Newman has wide experience in appellate practice and has handled hundreds of appeals in both state and federal courts in New York and elsewhere and has argued 80 appeals in the New York Court of Appeals.

He is a member of the American Academy of Appellate Lawyers; a life member of the American Law Institute; a Fellow of the Chartered Institute of Arbitrators; a member of the London Court of International Arbitration; a member of the American College of Coverage and Extracontractual Counsel; a member of ARIAS-U.S.; a member of the Federation of Defense and Corporate Counsel; a Fellow of the New York State Bar Association Foundation; and a member of the New York State Office of Court Administration’s Advisory Committee on Civil Practice.

He is the original author of New York Appellate Practice (LexisNexis, 2010), co-author of the Handbook on Insurance Coverage Disputes (Walters Kluwer 17th ed. 2014) and the author of numerous articles on insurance/reinsurance and appellate practice. Mr. Newman is annually listed in Chambers USA: America’s Leading Lawyers for Business, The Best Lawyers in America and New York Super Lawyers, for appellate practice and insurance law.

The Second Circuit Loosens The Reins On Insider Trading Prosecutions

After an intervening decision by the United States Supreme Court last year and a rare rehearing of oral argument in March, the Second Circuit has affirmed the conviction of Matthew Martoma, a former portfolio manager at S.A.C. Capital Advisors. In doing so, the Second Circuit has signaled a substantial shift in insider trading law by reversing course from its 2014 decision, which made prosecuting insider trading cases more difficult.

To read the full text of this article, please visit the Duane Morris White Collar Criminal Law blog.

Seventh Circuit Rules Cosmetology Students Are Not Employees

The Seventh Circuit Court of Appeals recently issued an opinion that supports numerous district court opinions that cosmetology students are not employees. In Hollins v. Regency Corp., ___ F.3d ___, No. 15-3607, 2017 WL 3474266 (7th Cir. Aug. 14, 2017), Chief Judge Diane Wood wrote the opinion of a unanimous panel of the Seventh Circuit affirming the grant of summary judgment against former cosmetology students who alleged they were employees of their cosmetology schools when they 1) were practicing skills on paying members of the public and 2) were performing “menial tasks,” such as sanitation, greeting guests and selling products. The Northern District of Illinois had granted summary judgment against the students, and this appeal followed.

Please visit the Duane Morris LLP website to read the full text of this Alert.

Third Circuit: First Amendment Protects Those Recording Police in Public

Is the recording of police carrying out their official duties in public places protected by the First Amendment? Recently, in a case with implications for news organizations as well as citizen-observers, a federal court judge dismissed the First Amendment claims of two citizens against police officers who disrupted, inspected, restrained and/or cited them while they were recording police officers operating in public. In Richard Fields v. City of Philadelphia, 16-1650, 2017 WL 2884391 (3d Cir. July 7, 2017), the U.S. Court of Appeals for the Third Circuit reversed, holding that the First Amendment protects this activity.

To read the full text of this Alert, please visit the Duane Morris website.

Could Bristol-Myers Squibb Co. Cure Forum Shopping?

By: Theresa A. Langschultz and Heather U. Guerena

In an 8-1 decision, the Supreme Court appeared to deal a blow to forum shopping last week in Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco County (“BMS”).

In BMS, a mixed group of California residents and nonresidents sued Bristol-Myers Squibb in California, alleging injury due to the pharmaceutical company’s drug Plavix. The Supreme Court held that California courts lacked specific jurisdiction to entertain the claims brought by plaintiffs who are not California residents, because there was an insufficient connection between the forum and the specific claims at issue. Justice Alito, writing for the majority, noted that the nonresidents weren’t prescribed the drug in the state, didn’t buy the drug in the state, didn’t take the drug in the state, and weren’t injured by the drug in the state. Further, Bristol-Myers Squibb is incorporated in Delaware and headquartered in New York. The Court ruled that:

the mere fact that other plaintiffs were prescribed, obtained, and ingested Plavix in California—and allegedly sustained the same injuries as did the nonresidents—does not allow the State to assert specific jurisdiction over the nonresidents’ claims.

__ S. Ct. __, 2017 WL 2621322, at *8 (U.S. June 19, 2017).

The effect of the Court’s ruling was immediate: within hours of the Court’s decision, a St. Louis Circuit Court judge declared a mistrial in a products liability action brought on behalf of Missouri residents and nonresidents. See Michael Blaes et al. v. Johnson & Johnson et al., No. 1422-CC09326-01, ________ WL ________ (Mo. Cir. Ct. 22d June 19, 2017). In Blaes, defendant Johnson and Johnson moved for an immediate mistrial in a case in which a Missouri resident and two nonresidents alleged injury due to the company’s talcum products, arguing that BMS could prove fatal to the claims of the individuals who resided outside of Missouri.

BMS suggests that plaintiffs are foreclosed from bringing suits based on specific jurisdiction in a state without a sufficient connection between the forum and the specific claims at issue. However, as Justice Alito pointed out, plaintiffs still have a variety of options. Nonresident and resident plaintiffs may join together to bring a class action against a company in a forum in which the company is headquartered or incorporated. See Bristol-Myers Squibb Co. v. Super. Ct. of California, San Francisco County, __ S. Ct. __, 2017 WL 2621322, at *11. Similarly, plaintiffs may be able to bring a class action against a company in their state of residence. Id. However, BMS illustrates that nonresident plaintiffs who bring suit against an out-of-state defendant in a forum that does not bear a connection to their claim risk dismissal of their action.

 

How Long Does a California Civil Appeal Take?

Based on 2016 California court statistics, the time from the notice of appeal in a civil case to the filing of the Court of Appeal’s opinion differs substantially between California’s six appellate districts, and even between divisions within districts. The fastest California appellate court currently is Division 6 of the Second District in Ventura, with a median time of 423 days (a little over 14 months) to process a civil appeal from the notice of appeal to the filing of the decision. Ninety percent of all civil appeals in the court are processed in 667 days (a little over 22 months).

At the other end of the spectrum is the Third District in Sacramento, with a median time of 693 days (a little over 23 months) to process a civil appeal from the notice of appeal to the filing of the decision. Ninety percent of all civil appeals in the Third District are processed in 1,107 days (a little over 3 years).

Statewide, the median time to process civil appeals for all California appellate courts is 518 days (a little over 17 months), with ninety percent of all civil appeals processed statewide on average in 846 days (a little over 28 months).

Why the discrepancy between courts? Filings per justice explain much, but so does backlog. The Third District, for example, has far and away the largest number of pending appeals per justice.

And while we’re discussing statistics, what are your chances for success on appeal? If you’re the appellant, they’re pretty slim. Only 10% of civil appeals were reversed statewide in 2014-15. And if you decide to seek review in the California Supreme Court, it’s even more of a longshot—only 5% of petitions for review from civil appeals were granted by the Supreme Court in 2014-15.

The complete 2016 statistics can be found here.

Pyrrhic Victories Are to Be Avoided

This column discussed this subject almost 20 years ago (NYLJ April 7, 1999), but two recent decisions publicized on the front pages of the Law Journal suggest that it would be well to advise a new generation of lawyers that tactical victories in a jury trial may be followed by a loss of the appellate war. As a reminder, King Pyrrhus of Epirus, in Greece, triumphed over the Romans at Asculum, in southeastern Italy, in 279 B.C.E., but his losses were so heavy that he is reported to have said: “Another such victory over the Romans, and we are undone.” Bartlett’s, “Familiar Quotations,” p. 92, quoting Plutarch, “Lives,” Pyrrhus.

In litigation, the aim of an injured plaintiff is to obtain monetary or some other form of relief; for the defendant, vindication and dismissal of the action. It cannot be counted a victory if a favorable verdict is set aside by the trial or appellate court after a lengthy trial and the case must be retried at considerable expense, loss of time and renewed mental and emotional strain on the injured party or his or her survivors—all because of counsel’s avoidable error.

To read the full text of this article by Duane Morris attorney Thomas R. Newman, please visit the Duane Morris LLP website.

U.S. Supreme Court to Hear Major Sports Betting Case

The U.S. Supreme Court announced today that it will hear an appeal from the en banc Third Circuit in the closely watched and long-running New Jersey sports betting litigation (consisting of two consolidated cases, Governor Christopher J. Christie, et al., v. NCAA et al., No. 16-476 and New Jersey Thoroughbred Horsemen’s Association, Inc. v. NCAA et al., No. 16-477).  The consolidated appeal, which will be argued next term, urges the Supreme Court to reverse the en banc Third Circuit panel that refused to allow New Jersey to expand sports betting in that state.

This appeal and the potential nationwide consequences of reversing the Third Circuit panel were the subject of an extended presentation and discussion at Duane Morris’ Future of Sports Betting panel, held on April 27, 2017.  The panel included John Brennan, staff writer for The Record; Andrew Brandt, Director of the Moorad Center for Sports Law at Villanova Law School; and Christopher Soriano, Partner at Duane Morris.

The “Death-Knell” Doctrine is Really Most Sincerely Dead

On June 12. 2017, the United States Supreme Court decided Microsoft Corp. v. Baker, 582 U.S. ___. The Court phrased the question before it as follows:

Do federal courts of appeals have jurisdiction under §1291 and Article III of the Constitution to review an order denying class certification (or, as here, an order striking class allegations) after the named plaintiffs have voluntarily dismissed their claims with prejudice?

Spoiler alert: the Court (8-0) answered “No.”
Continue reading The “Death-Knell” Doctrine is Really Most Sincerely Dead

When is an “Aggrieved Consumer” Not Aggrieved?

In 1981, New Jersey enacted the Truth in Consumer Contract, Warranty and Notice Act (the “TCCWNA”), N.J.S.A. §§ 56:12-14 to 12-18. Although the law languished in relative obscurity for decades, there has been a widely-discussed uptick recently in putative class actions invoking the TCCWNA. The TCCWNA broadly prohibits any:

offer to any consumer or prospective consumer or enter[ing] into any written consumer contract or giv[ing] or display[ing] any written consumer warranty, notice or sign . . . which includes any provision that violates any clearly established legal right of a consumer or responsibility of a seller, lessor, creditor, lender or bailee as established by State or Federal law at the time the offer is made or the consumer contract is signed or the warranty, notice or sign is given or displayed.

N.J.S.A. § 56:12-15.

Continue reading When is an “Aggrieved Consumer” Not Aggrieved?