What's New in the Courts

Judge Posner Rejects Notion that Class Members Must be Identified at Certification Stage. In class action against PIMCO under the Commodity Exchange Act, Judge Posner of the U.S. Seventh Circuit Court of Appeals rejected the defendants’ argument that the district judge was required to determine which class members had suffered damages. “Putting the cart before the horse in that way would vitiate the economies of class action procedure; in effect the trial would precede the certifi ...

Fifth Circuit Vacates Denial of Benefits for Failure to Employ Appropriate Claim Review Process. After suffering a heart attack, the plaintiff was placed in a nursing home. Initially, Blue Cross agreed to pay the costs, but then later changed its mind. The plaintiff’s claim for continued benefits turned on whether his care at a nursing home qualifies as Skilled Nursing Care, which is covered, or Custodial Care, which is not. Addressing the plaintiff’s Substantial Compliance argu ...

Presidential Memo Curtails Efforts to Effectuate Preemption thru Regulatory Agencies. The White House released a Presidential Memo “to ensure that executive departments and agencies include statements of preemption in regulations only when such statements have a sufficient legal basis.” (1) Heads of departments and agencies should not include in regulatory preambles statements that the department or agency intends to preempt State law through the regulation except where preemptio ...

Court Compels Defendant to Re-Produce Database in Native Format Even though plaintiffs’ requests did not articulate expressly the need for native format, the court concluded that the requests clearly encompassed searchable databases. The defendant was not permitted to convert its ESI into a PDF format that would make it more difficult or burdensome for the plaintiffs to use. The court ordered the defendant to re-produce relevant data in native format, and to make available the approp ...