Defense Counsel Journal articles from July 2002

Defense Counsel Journal archives from July 2002

A brief history of Rule 23.(class actions)(Federal Rules of Civil Procedure)
July 1, 2002... The class action has its ultimate roots in the English Court of Chancery and the bill of peace. It was a practical rule of joinder where joinder was otherwise impractical. The American courts adopted the procedure in the 19th and early 20th...

The Advisory Committee begins re-consideration of rule.(class actions)(Federal Rules of Civil Procedure)
July 1, 2002... There have been several phases in the committee's work, although many continuing themes. At the beginning, the committee developed a comprehensive re-draft of the rule. In 1992, Judge Pointer, chair of the committee, relying on a 1986 proposal...

Unfinished business.(class actions)(Federal Rules of Civil Procedure)
July 1, 2002... As this history may demonstrate, the committee has reason to be both humble, given the complexity and magnitude of the issues, but also proud of its work over the past ten years. It has done much to enhance judicial supervision of the class...

Overlapping class actions.(Federal Rules of Civil Procedure)
July 1, 2002... The committee has been told repeatedly in a variety of forums, by both defense and plaintiff counsel, and without contradiction, that as Rule 23 is reformed to enhance judicial supervision of class counsel, the deliberateness of the...

Minimal diversity as a possible partial solution.(class actions)(Federal Rules of Civil Procedure)
July 1, 2002... Having delved deeply into this topic, the committee is in a position now to make the following findings and recommendations to the Standing Committee on the Rules of Practice and Procedure and the Committee on Federal-State Jurisdiction...

Use and misuse of expert opinions at the class certification stage: use of expert opinions should not be permitted, but if courts continue to do so, defendants must attack the expert's qualifications and present their own.(class actions)
July 1, 2002... AS THE number of class actions in the United States increases, so does the device of employing expert witnesses to give opinions at the class certification stage as to the ultimate legal issues of manageability, predominance and superiority,...

The law of unintended consequences: HIPAA and liability insurers; at first glance, the Privacy Regulations appear to be adverse to insurers and defense counsel, but McCarran-Ferguson and exceptions may save the day.(Health Insurance Portability and Accountability Act of 1996)
July 1, 2002... WHEN the U.S. Congress passed the Health Insurance Portability and Accountability Act of 1996 (HIPAA) (Pub. L. No 104-191), it had little idea of the impact the legislation would have on insurance claims in general and health claims in...

Basics of business interruption insurance: the ins and outs of tricky coverage: it's important to know and interpret policy language, exclusions and coverages in order to state a valid claim under this insurance.
July 1, 2002... Business interruption insurance is "`designed to do for the business what the business would have done for itself had no loss occurred.'" (1) Thus, this coverage provides a vehicle to recoup earnings lost as a result of an occurrence of a...

Excess-primary insurer obligations and the rights of the insured: one area that needs clarification is the tension between the principle of horizontal exhaustion and the doctrine of targeted tender.
July 1, 2002... THE relationship between excess and primary insurers is based on well-established principles of contract law. The obligations excess insurers, primary insurers and insureds owe to one another generally are founded on the language of the...

Employers' liability for asbestos diseases: House of Lords takes a turn in English law: recent House of Lords decision may indicate a return to the lower "material contribution" causation test and a general lowering of the burden of proof.
July 1, 2002... PERSONAL injury cases against employers in Britain are made on the basis of breach of duty, whether common law or statutory. The mainstay of liability is that it must involve a breach of duty that is causative of injury. This hurdle is the main...

Overcoming jury bias: trial advocates must understand it and cope with it: there are several methods that can be used to deal with the long-held beliefs and dangerous biases held by jurors.
July 1, 2002... HOW CAN defense counsel success fully cope with jurors' long-held beliefs and biases that may influence them? Here are several suggested methods. UNDERSTANDING BIAS A. Ride the Wild Pony Any experienced equestrian will verify that...

Annual survey of fidelity and surety law, 2001.(part 2)
July 1, 2002... By Ronald A. May, R. Earl Welbaum, Randall I. Marmor and Roger P. Sauer I. PUBLIC CONSTRUCTION BONDS A. Bonds under Federal Laws 1. Procedural Ninety-day notice commenced when rented pilings were returned to subcontractor,...

$25 million class settlement thrown out.(consumer finance class action against tax preparation service)
July 1, 2002... In an opinion highly critical of class action attorneys in general and a $4.25 million fee award in particular, the Seventh Circuit has set aside a class settlement in litigation involving refund anticipation loans made by a major tax...

Ford-Firestone class certifications nixed.
July 1, 2002... The Seventh Circuit also reversed a district court's certification of two nationwide class actions that arose from the Ford Explorer's well-publicized problems with Firestone tires in the late 1990s. In re Bridgestone/Firestone Inc. Tires...

Ninth and Fifth Circuits slash punitive awards.
July 1, 2002... In a case that previously was before the Ninth Circuit and remanded by the U.S. Supreme Court, a Ninth Circuit panel cut a punitive damages award from $4.5 million to $500,000, holding that the jury's award was constitutionally excessive....

Judicial estoppel bars employment-related lawsuit.(US 11th Circuit Court of Appeals)
July 1, 2002... In a case of first impression, the 11th Circuit held that judicial estoppel bars a man from pursuing an employment discrimination suit that he had not disclosed in his concurrent bankruptcy proceeding. Although ruling that the claimant's suit...

Federal banking law doesn't pre-empt state usury claims.
July 1, 2002... In an 11th Circuit opinion that provides a brief history lesson on two Congressional acts dating back to 1789 and 1864, the court determined that the National Bank Act (NBA) does not completely pre-empt state law claims challenging usurious...

Three justices would have heard judicial salary case.(US Supreme Court)
July 1, 2002... In an unusual dissent to the denial of a petition for certiorari, three U.S. Supreme Court justices said they would have heard an appeal questioning Congress's authority to restrict cost of living raises for federal judges. Justice Breyer,...

Newspaper cannot see GM's confidential settlement figures.(defective gas tank)(General Motors Corp.)
July 1, 2002... A Los Angeles newspaper cannot examine confidential settlement figures that General Motors Corp. filed with a federal district court under a protective order, unless it can show compelling reasons, the Ninth Circuit has ruled. Deciding an issue...

Attorney lacks standing to challenge court's rules.(unpublished opinions)(US 9th Circuit Court of Appeals)
July 1, 2002... In a Ninth Circuit opinion in which all members of the court recused themselves, the panel of judges sitting by designation held that a California attorney lacked standing to challenge the constitutionality of the circuit rules prohibiting...