The Third Circuit recently held that non-debtor subsidiaries cannot be liable for allegedly fraudulent transfers under the Delaware Uniform Fraudulent Transfer Act. The case arose out of a mining company's efforts to enforce a $1.2 billion arbitral award that it had obtained against the Bolivarian Republic of Venezuela. This decision is likely to be relevant to other proceedings, including the multiple pending proceedings against Venezuela arising out of its economic nationalisation from 2007 to 2011.
There have been a number of recent cases that have affected employers, including the Supreme Court's resolution of a circuit split on class action waivers and the Fifth Circuit's ruling that plaintiffs in retaliation cases may recover emotional distress damages. Further, the Eleventh Circuit recently held that disabled employees in need of reasonable accommodation must compete with other qualified candidates and the California Supreme Court ruled that on-call rest periods are not permissible.
The use of connected devices has become widespread among consumers and businesses. While this ability to send and receive data provides powerful tools to improve consumer experience and gather information about consumer behaviour, the Internet of Things presents discovery challenges concerning data preservation and extraction. Should litigation arise, data retention policies that ensure proper preservation of information and allow the sorting and production of data will help to facilitate the discovery process.
On the eve of St Louis being named by the American Tort Reform Association as the number one 'Judicial Hellhole' in the country, juries in neighbouring Jackson County staked their own claim to that dubious distinction by returning two staggering punitive awards on consecutive days. Six-figure compensatory awards are undoubtedly 'substantial', and the facts in these cases do not stand out as being so reprehensible as to warrant deviation from the 1:1 presumption established in State Farm.
A federal district court recently denied two employees' motion for reconsideration of its prior order enforcing a 'clickwrap' agreement containing restrictive covenants and a forum selection clause. While pen and ink agreements will likely remain the better choice for full employment agreements, employers may consider the use of electronic agreements for regular policies which require acknowledgement from a broad selection of employees and that might require frequent revision.
A key goal for companies responding to discovery demands is to identify responsive documents in a cost-effective and defensible manner. Using technology-assisted review allows companies to reduce the massive volume of data involved to a more manageable level by ranking, prioritising and classifying electronic data.
The Consumer Financial Protection Bureau (CFPB) recently petitioned the US Court of Appeals for the DC Circuit for en banc review of the three-judge panel decision that found the CFPB's single-director structure to be unconstitutional and rejected its interpretation of Section 8 of the Real Estate Settlement Procedures Act. The CFPB argued that the decision was contrary to Supreme Court precedent, not based on separation-of-powers principles, unduly restrictive and potentially damaging.
In a recent case arising from an attack on the defendant insurer's computer network, the US Court of Appeals for the Sixth Circuit addressed two questions that are frequently litigated in data breach cases: whether the plaintiffs had alleged an injury-in-fact required for constitutional standing and whether any such alleged injury was fairly traceable to the acts of the defendant and thus sufficient to establish the requisite causation.
Courts applying BMW and State Farm often emphasise the Supreme Court's admonition that the constitutional line is not "marked by a simple mathematical formula" – typically when rejecting a defendant's argument that the ratio of punitive to compensatory damages is indicative of an excessive award. However, the Texas Court of Appeals recently showed that this dictum is a two-way street, reducing a punitive award to a small fraction of the compensatory damages.