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The case was filed in 2013. In November 2016, the court granted defendants terminating sanctions on Moofly’s claims, finding that Moofly had abused the discovery process and displayed “utter disregard for the court.” Moofly moved for reversal of the terminating sanctions under Code of Civil Procedure section 473, which allows relief from defaults and dismissals entered as a consequence of mistakes or neglect. Defendants argued that that Moofly’s motion was an incorrectly-labeled motion for reconsideration under section 1008. On December 20, the court denied the motion, issued an order to show cause regarding sanctions against Moofly, and set the hearing for January 23, 2017. Moofly filed a response on January 18. On February 2, the court granted the motion for sanctions ($10.499.51) against Moofly and its attorney. The court of appeal reversed. Code of Civil Procedure section 1008 establishes the rules for motions for reconsideration, providing that a court may impose sanctions for violations “as allowed by [s]ection 128.7.” A court may not sanction a party for violating section 1008 without allowing the party a 21-day safe harbor to withdraw the offending motion, as required by section 128.7(c). Moofly did not receive the required 21-day notice to withdraw its motion fand avoid sanctions. View "Moofly Productions v. Favila" on Justia Law

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The Claims Court entered judgment in favor of Starry on its bid protest claim, concluding that the Department of Health and Human Services acted arbitrarily and capriciously in canceling its solicitation seeking to procure certain business operations services. The Claims Court thereafter awarded Starry attorney fees at the rates actually billed to Starry by its counsel, finding that the “extreme measures that [Starry] was forced to pursue to vindicate its right to a rational and lawful federal procurement process, combined with the shocking disregard of the truth by” HHS, constituted a “special factor” justifying an award of fees above the EAJA’s “default rate” of $125 per hour. EAJA, the Equal Access to Justice Act, 28 U.S.C. 2412(d)(2)(A), provides that when a trial court finds that a “special factor” exists, it is authorized to increase the statutory attorney fee rate in certain cases brought by or against the government. The Federal Circuit vacated the award, holding that the Claims Court erred as a matter of law in holding that an agency’s improper or dilatory conduct during the administrative process that gave rise to the litigation between the parties can constitute a “special factor.” EAJA does not contain any reference to prelitigation activities. View "Starry Associates, Inc. v. United States" on Justia Law

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At issue before the Michigan Supreme Court in this case was whether the rebuttable presumption of undue influence was applicable when the decedent’s attorney breaches Michigan Rule of Professional Conduct (MRPC) 1.8(c), which generally prohibited an attorney from preparing an instrument giving the attorney or his or her close family a substantial gift. Appellants argued that a breach of MRPC 1.8(c) automatically rendered an instrument void, while the appellee attorney argued that, rather than an invalidation of the instrument, a rebuttable presumption of undue influence arose in these circumstances. After considering the applicable provisions of the Estates and Protected Individuals Code (EPIC), MCL 700.1101 et seq., and the underlying principles of probate law, the Michigan Supreme Court determined a rebuttable presumption applied to these circumstances. "[T]he adoption of MRPC 1.8(c) has no effect on this conclusion because a breach of this rule, like breaches of other professional conduct rules, only triggers the invocation of the attorney disciplinary process; it does not breach the statutory law of EPIC." View "In re Mardigian Estate" on Justia Law

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NOV purchased industrial-strength "desert-proof" air conditioners from Technicool for use on specialty oil-and-gas rigs, for more than $3 million. After multiple units failed, NOV, represented by SBPC, sued Technicool in Texas state court. Technicool filed for Chapter 7 bankruptcy. NOV sought relief from the automatic stay and was allowed to join Technicool’s owner, Furlough, to its state suit. NOV, again represented by SBPC, filed a claim in the bankruptcy case, representing 93 percent of the total claims. After learning that Furlough had formed other companies, the Trustee sought to consolidate the businesses and pierce the corporate veil and to employ SBPC as special counsel under 11 U.S.C. 327(a). Furlough objected, arguing that SBPC’s representation of NOV was a disqualifying “interest adverse to the estate.” In an engagement letter, signed by SBPC, NOV agreed to transfer to the bankruptcy estate funds it recovered from Furlough in state court. The bankruptcy court, district court, and Fifth Circuit held that Furlough lacked standing to object. Furlough cannot show that he was “directly and adversely affected pecuniarily by the order of the bankruptcy court.” SBPC’s appointment does not directly affect whether the bankruptcy court approves NOV’s claim. Under section 327(c), “a person is not disqualified for employment . . . solely because of such person’s employment by or representation of a creditor, unless there is objection by another creditor or the United States trustee, [and] an actual conflict of interest.” View "Furlough v. Cage" on Justia Law

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In May 2014, Defendants distributed the film Walk of Shame. Weeks earlier, SOYP sent letters to Defendants alleging that the film included elements copied from a screenplay, "Darci’s Walk of Shame," written by SOYP’s president, Rosen; that Rosen’s screenplay was sent to Banks, the star of Walk of Shame, in 2007; that Rosen met with Banks to discuss the project; and that Rosen wanted Banks to star in his movie, but Banks never replied after the meeting. SOYP sued, alleging copyright infringement. Several discovery disputes arose; SOYP filed eight motions to compel production of documents. The Ninth Circuit affirmed the rejection of the suit on the pleadings, finding no substantial similarity between the works. Defendants then moved for attorney’s fees and costs. Judge Morrow, who had adjudicated the merits, held a hearing, Before the hearing, she issued an unsigned tentative order awarding Defendants $314,669.75 in fees and $3,825.15 in costs. After the hearing, she issued a minute order stating that Defendants’ motion was granted in part and denied in part and that a final order would issue. Judge Morrow retired without issuing a final order. Judge Phillips issued a final order, awarding Defendants the amount stated in the tentative order. The Ninth Circuit affirmed, noting the court’s discretion under 17 U.S.C. 505, that SOYP’s subjective beliefs regarding its outcome were irrelevant, and that other factors did not outweigh the objective unreasonableness of SOYP’s litigating position. View "Shame on You Productions, Inc. v. Banks" on Justia Law

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The Oregon Supreme Court previously denied employer Shearer's Foods' petition for review in this workers’ compensation case, but addressed claimant William Hoffnagle's petition for an award of attorney fees for time that his counsel spent in response to employer’s unsuccessful petition for review. Employer objected that the Supreme Court lacked authority to award fees and also objects to the amount of requested fee. Although the Supreme Court often resolved attorney fee petitions by order rather than written opinion, employer’s objection to the Supreme Court's authority to award fees presented a legal issue that was appropriately resolved by opinion. Employer insisted the Oregon legislature had not authorized an award of fees for work that a claimant’s attorney performs in response to an unsuccessful petition for review; employer did not dispute that, after a series of amendments, ORS 656.386 specified a claimant who prevails against a denial was entitled to an award of attorney fees for work performed at every other stage of the case, including in the Supreme Court, if the Supreme Court addressed the merits of the case. "Employer offers no reason why the legislature would have intentionally created that one carve-out to what is otherwise a comprehensive authorization of fees when a claimant relies on counsel to finally prevail against the denial of a claim. Indeed, such a carve- out would be incompatible with what we have described as 'a broad statement of a legislative policy' reflected in ORS 656.386, 'that prevailing claimants’ attorneys shall receive reasonable compensation for their representation.'" The petition for attorney fees was allowed. Claimant was awarded $2,200 as attorney fees on review. View "Shearer's Foods v. Hoffnagle" on Justia Law

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Firefighters alleged that they suffered hearing losses caused by the loud noise emitted by a manufacturer’s fire sirens. A perfunctory investigation conducted by the manufacturer during discovery revealed the firefighters’ lawsuit to be clearly time-barred, and also revealed that one firefighter had not even suffered hearing loss attributable to noise exposure. Eventually, Plaintiffs requested the district court to dismiss the case with prejudice (Federal Rule of Civil Procedure 41(a)(2)). In doing so, the court awarded attorneys’ fees and costs in favor of the manufacturer, making an explicit reference to plaintiffs’ counsel’s practice of repeatedly suing the fire siren manufacturer in jurisdictions throughout the country in a virtually identical fashion. The Third Circuit affirmed. Although attorneys’ fees and costs are typically not awarded when a matter is voluntarily dismissed with prejudice, such an award is appropriate when exceptional circumstances exist. Exceptional circumstances include a litigant’s failure to perform a meaningful pre-suit investigation, as well as a repeated practice of bringing meritless claims and then dismissing them with prejudice after both the opposing party and the judicial system have incurred substantial costs. Such exceptional circumstances are present in this case. View "Carroll v. E One Inc." on Justia Law

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Kennedy had decades of experience working for Schneider Electric and taught classes, part-time, in electrical and industrial safety at Prairie State community college. Schneider requires its employees to obtain advance approval before they teach classes or submit articles for publication. Without obtaining permission, Kennedy published articles about power-distribution equipment, identifying himself as a Prairie State instructor. When Schneider learned of these articles a manager contacted Prairie State to ask about Kennedy’s course materials, which she worried might contain proprietary information. Weeks later, while reviewing instructors' credentials, Prairie State realized that Kennedy did not possess the qualifications to teach and did not rehire Kennedy as an adjunct instructor. A year later, Kennedy sued Schneider, alleging defamation and malicious interference with an advantageous relationship. The court granted Schneider summary judgment, finding that Prairie State acted solely because Kennedy did not meet its credentialing requirements and not because of Schneider’s telephone call. More than a year later, Kennedy moved to set aside the judgment (Federal Rule of Civil Procedure 60(d)(3)), asserting that Schneider’s lawyers knowingly submitted perjured evidence. The court denied the motion, stating that the cited evidentiary discrepancies were known at the time of summary judgment, and granted Rule 11 sanctions against Kennedy’s lawyer for having to defend against the motion ($10,627.16). The Seventh Circuit affirmed. Kennedy could have challenged the same evidence on summary judgment. If the court made a mistake, Kennedy could have asked for reconsideration or appealed. View "Kennedy v. Schneider Electric" on Justia Law

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The DC Circuit affirmed the district court's judgment that certain documents subpoenaed by the FTC were covered by the attorney-client privilege. The court held that obtaining or providing legal advice was one of the significant purposes of the communications at issue. In this case, the relevant communications consisted primarily of the transmission of factual information from Boehringer's employees to the general counsel, at the general counsel's request, for the purpose of assisting the general counsel in formulating her legal advice regarding a possible settlement. Other communications were between the general counsel and the corporation's executives regarding the settlement. Therefore, all of the communications were protected by the attorney-client privilege. View "FTC v. Boehringer Ingelheim Pharmaceuticals, Inc." on Justia Law

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The Supreme Court ordered that the Honorable Frank M. Calvert be suspended from the office of circuit court commissioner without compensation and prohibited from exercising any of the powers or duties of a circuit court commission in Wisconsin for a period of fifteen days due to Commissioner Calvert’s judicial misconduct. The Wisconsin Judicial Commission filed a complaint against Commissioner Calvert alleged that he had engaged in judicial misconduct in presiding over an action seeking a harassment injunction. The Judicial Conduct Panel made conclusions of law and recommended that the Supreme Court suspend Commissioner Calvert for no more than fifteen days. The Supreme Court adopted the panel’s undisputed findings and conclusions of law and agreed that a fifteen-day suspension was in order. View "Wisconsin Judicial Commission v. Honorable Frank M. Calvert" on Justia Law