What's New in the Courts

Seventh Circuit Rejects Bright-Line Rule Prohibiting Certification of Consumer Fraud Classes, Affirming the Certification of a Six-State set of Sub-Classes. Consumers brought class action against Pella for defective windows. The district court certified a (b)(2) class of owners whose windows had not yet manifested a defect in order to declare the right of replacement under the warranty. The district court also certified six state sub-classes under (b)(3) for consumers who had already suffered ...

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 ...

Judge Rosenthal Imposes Sanctions in Case of Intentional Spoliation. Judge Rosenthal, sitting in the Southern District of Texas, rendered a lengthy and scholarly opinion arising out of an employment dispute between the Rimkus adjusting / expert firm and some of its former employees. While building on the Pension Committee decision, [see below], "in the Fifth Circuit and others, negligent as opposed to intentional, ‘bad faith’ destruction of evidence is not sufficient to give an adverse infere ...