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The Fifth Circuit withdrew its prior opinion and substituted the following opinion. The court vacated the district court's holding that production of a privilege log pursuant to an employment discrimination investigation was sufficient to establish that the attorney-client privilege protected BDO's withheld documents. The court held that by adopting the magistrate judge's recommendation, the district court erred when inverting the burden of proof, requiring that the EEOC prove that BDO improperly asserted the attorney-client privilege as to its withheld documents, and concluding that all communications between a corporation's employees and its counsel were per se privileged. The court remanded for a determination applying the correct attorney-client privilege principles and legal standards. In regard to the protective order, because the magistrate judge's incorrect application of the legal standard may have affected both her analysis of the allegedly disclosed communications and the breadth of the protections she imposed in her order, the court remanded so that BDO's request for protection may be considered under the proper legal standard for determining privilege. View "EEOC v. BDO USA, LLP" on Justia Law

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Plaintiffs, members of Global Fitness gyms, believed that Global misrepresented the terms of its gym memberships and sued as a class. The parties settled: Global agreed to pay $1.3 million to the class members, class counsel’s fees as ordered by the court, and the claims administrator’s fees and costs. The court approved the agreement over the objections of some class members and ordered its implementation. The Sixth Circuit affirmed. The Supreme Court denied certiorari. In the meantime, Global had sold all of its gyms and funneled $10.4 million of the proceeds to its managers through “tax distributions.” The payments Global owed to the class were in escrow under the terms of the settlement agreement, which made no similar provision for class counsel and the claims administrator. Days before its payment obligation under the agreement came due, Global notified the court it could not meet its remaining obligations. The court held Global Fitness and its managers in civil contempt. The Sixth Circuit reversed. Global had no legal obligation to conserve funds to pay class counsel and the claims administrator while the appeals were pending. Its obligation to pay became definite and specific only once the appeals were exhausted. The court erred in considering any of Global’s conduct from before that date and by holding the managers jointly and severally liable. View "Gascho v. Global Fitness Holdings, LLC" on Justia Law

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An attorney represented a Native corporation in litigation nearly three decades ago. The corporation disputed the attorney’s claim for fees, and in 1995, after the attorney’s death, the superior court entered judgment on an arbitration award of nearly $800,000 to the attorney’s law firm, then represented by the attorney’s son. The corporation paid eight installments on the judgment, but eventually stopped paying, citing financial difficulties. The law firm sought a writ of execution for the unpaid balance, and the writ was granted. The corporation appealed but under threat of the writ paid $643,760 while the appeal was pending. In a 2013 opinion the Alaska Supreme Court held the writ invalid and required the firm to repay the $643,760. The corporation was never repaid. The original law firm moved its assets to a new firm and sought a stay of execution, averring that the original firm now lacked the funds necessary for repayment. The corporation sued the original firm, the successor firm, and the son for breach of contract, fraudulent conveyance, conspiracy to fraudulently convey assets, violations of the Unfair Trade Practices Act (UTPA), unjust enrichment, and punitive damages. The firm counterclaimed, seeking recovery in quantum meruit for attorney’s fees it claimed were still owing for its original representation. The superior court granted summary judgment for the corporation on the law firm’s quantum meruit claim and, following trial, found that the son and both law firms fraudulently conveyed assets and were liable for treble damages under the UTPA. The son and the law firms appealed, arguing the trial court erred by: (1) holding that the quantum meruit claim was barred by res judicata; (2) holding the defendants liable for fraudulent conveyance; (3) awarding damages under the UTPA; and (4) making mistakes in the form of judgment and award of costs. The Alaska Supreme Court found no reversible error with one exception. The Court remanded for reconsideration of whether all three defendants are liable for prejudgment interest from the same date. View "Merdes & Merdes, P.C. v. Leisnoi, Inc." on Justia Law

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Francisco Diaz was employed as a tree trimmer by Professional Community Management, Inc. (“PCM”) for many years. He filed his complaint against it in October 2014, stating various causes of action arising out of PCM’s alleged failure to reasonably accommodate the workplace restrictions imposed by his doctor, its alleged retaliation, and its alleged wrongful termination of his employment. PCM answered the complaint in December 2014, denying the allegations and pleading 24 affirmative defenses. The 24th affirmative defense alleged that Diaz’s complaint “and each cause of action, is barred by [his] failure to exhaust contractual remedies available to him, including, but not limited to, the grievance and arbitration procedure under the collective bargaining agreement between [PCM] and [Diaz’s] collective bargaining representative.” PCM unilaterally orchestrated the issuance of an appealable order by: (1) applying ex parte, a mere 11 days before trial, for an order shortening time to hear its motion to compel arbitration; (2) voluntarily submitting a proposed order to the trial court that not only reflected the court’s denial of the ex parte application (the only ruling reflected in the trial court’s own minute order) but also included a denial of the motion on the merits; and (3) promptly appealing that order, which then stayed the scheduled trial. The Court of Appeal concluded PCM carefully tailored the order it proposed the trial court issue, incorporating what it characterized as the trial court’s reasons for rejecting the summary judgment motion, and excluding any mention of issues that might distract from that analysis. PCM continued its aggressive strategy on appeal, contending Diaz was precluded from arguing that PCM had waived its right to compel arbitration. According to PCM, Diaz could not make that argument because the trial court’s premature denial of the motion to compel (at PCM’s request) meant Diaz never argued waiver in an opposition to the motion; and because the order PCM drafted did not reflect the trial court had relied on it as a basis for denying the motion. Instead, PCM claimed Diaz was relegated to defending the court’s ruling based solely on the analysis PCM crafted in its proposed order, and that the Court of Appeal assess the propriety of that order based solely on that analysis. The Court of Appeal concluded that PCM invited the trial court’s alleged error when it proposed the court issue the very ruling it now challenged on appeal. “By doing that, PCM won the battle - it got the court to issue the appealable order it sought, prior to trial - but it lost the war.” A party that invites the trial court to commit error is estopped from challenging that error on appeal. The Court concluded PCM and its counsel acted in bad faith, generating an appealable order they knew the trial court had not intended to issue at the ex parte hearing, for the purpose of obtaining a delay of trial. It imposed monetary sanctions against PCM and its counsel for bringing a frivolous appeal. View "Diaz v. Professional Community Management, Inc." on Justia Law

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The Supreme Court ordered that Appellees’ joint motion to declare John Stokes a vexatious litigant is granted in part and ordered that, before Stokes could file any pleading pro se in a Montana district court or the Montana Supreme Court, he was required to obtain pre-filing approval from the court in which he sought to file. The court ordered that any such filing may be prohibited upon a determination that the claims asserted are harassing, frivolous, or legally not cognizable. The pre-filing requirement applies to pro se filings by Stokes in cases where his counsel has withdrawn from representation. View "Stokes v. First American Title Co. of Montana, Inc." on Justia Law

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Simmons contacted counsel in 2011, claiming that he developed Guillain-Barre Syndrome as a result of his 2010 flu vaccination. He provided his vaccination record. Counsel agreed to represent him. Counsel was subsequently unable to contact Simmons and sent a letter in 2013, stating that their attorney-client relationship had terminated. That letter was returned as undeliverable. Nearly two years later, shortly before the limitations period on his Vaccine Act claim would expire, Simmons contacted counsel’ and expressed that he would like to proceed. Counsel spoke with Simmons one additional time. The next day, on October 22, 2013, counsel filed Simmons’s petition, without any medical records or other supporting evidence. In January 2014, the special master ordered counsel to produce medical records. Counsel stated that counsel had again lost contact with Simmons and was unable to acquire those records. The master dismissed the case for failure to prosecute. Counsel then filed petitions seeking $8,267.89 in fees and costs. The master noted that because there was no direct evidence of bad faith and counsel had a vaccination receipt, counsel had satisfied the good faith and reasonable basis requirements and awarded fees. The Claims Court and Federal Circuit disagreed. The master erred in finding that counsel had a reasonable basis for Simmons’s claim. The fact that the statute of limitations was about to expire did not excuse counsel’s obligation to show some basis for the claim that Simmons suffered Guillain-Barre beyond their conversations. View "Simmons v. Secretary of Health and Human Services" on Justia Law

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The Court of Appeal reversed the trial court's order granting attorney fees to respondent after the trial court entered an interlocutory judgment of partition in her favor. In this case, the trial court found that an attorney fee provision in an earlier settlement agreement applied to the partition action, and awarded all fees to plaintiff under Civil Code section 1717 rather than apportioning the costs of partition under Code of Civil Procedure section 874.040. The court held, however, that the partition action did not fall within the terms of the attorney fee provision. Accordingly, the court remanded for further proceedings. View "Orien v. Lutz" on Justia Law

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The Supreme Court approved the findings of the Florida Judicial Qualifications Commission (JQC) that Judge Philip James Yacucci, Jr., a county court judge in the Nineteenth Judicial Circuit, violated Canons 1, 2A, 3B(8), 3B(8) and 3(E)(1) of the Florida Code of Judicial Conduct. The court also approved the JQC’s recommended discipline of a public reprimand, a thirty-day suspension without pay, completion of a judicial ethics course within one year, and payment of the costs of the JQC proceedings. Before the court, Judge Yacucci disputed only the recommendation of a thirty-day suspension. The Supreme Court concluded that, in light of Judge Yacucci’s conduct, suspension was an appropriate sanction. View "Inquiry Concerning Judge Philip James Yacucci, Jr." on Justia Law

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Kerr sought judicial review of the final determination that Kerr’s husband was not disabled and not entitled to any Social Security disability insurance benefits before his death. Kerr was due to receive any payment owed to Mr. Kerr. The parties stipulated to reversal and remand under 42 U.S.C. 405(g). Kerr then sought an award of $3,206.25 in attorney fees under the Equal Access to Justice Act, 28 U.S.C. 2412(d), with any fees awarded “be made payable to Plaintiff’s counsel,” attaching an “Affidavit and Assignment of EAJA Fee.” The Commissioner did not oppose the motion. The district court granted the award, declined to honor Kerr’s assignment, and concluded that it was required to order payment to Kerr as the prevailing party. The court held that it could not “ignore the Anti-Assignment Act,” which prohibits “an assignment of a claim against the United States that is executed before the claim is allowed, before the amount of the claim is decided, and before a warrant for payment of the claim has been issued” but “le[ft] it to the Commissioner’s discretion to determine whether to waive the Anti-Assignment Act and make the fee payable to Mr. Marks.” The Commissioner responded that she would accept [Kerr’s] assignment and suggested that the court deny as moot Kerr’s Rule 59(e) motion. The district court and Sixth Circuit agreed that Kerr’s motion was moot, and did not reconsider the application of the AAA to the EAJA assignment. View "Kerr v. Commissioner of Social Security" on Justia Law

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Denton sued his employer, San Francisco, alleging workplace retaliation, disability discrimination (disparate treatment, failure to accommodate, failure to engage in the interactive process), defamation, violation of the Confidentiality of Medical Information Act (Civ. Code 56), hostile work environment harassment, and failure to prevent harassment, discrimination, or retaliation, and against his supervisor, alleging defamation and hostile work environment harassment. After defendants moved for summary judgment, negotiations led to a settlement ($250,000). Denton’s then-counsel filed a notice of conditional settlement. A week later, after Denton discharged his attorney, defendants’ counsel successfully applied ex parte to have the settlement set aside, despite Denton twice assuring defendants’ counsel that he was not backing out of the settlement. Four days later, at the hearing on defendants’ summary judgment motion, Denton, appearing in propria persona, requested a continuance to oppose the motion. The trial court denied the request and granted defendants’ motion as unopposed. The court of appeal reversed. The trial court abused its discretion. To the extent the court implied that Denton was not diligent, the implication is not supported by the record. Defendants’ counsel acknowledged as much at the hearing. View "Denton v. City and County of San Francisco" on Justia Law