Commercial adversaries are often tempted to transform breach of contract or warranty matters into negligence or negligent misrepresentation claims. Or fraud or other intentional tort claims. The lure of a more flexible claim before a jury can be hard to resist. Or the governing contract may have limitation of liability restrictions that make warranty and contractual claims unavailing. Nevertheless, The Eighth Circuit, interpreting Missouri law, strongly reaffirmed its view that tort claims cannot be substituted for matters of contractual risk allocation unless very narrow ...
In many commercial contexts an agreement includes a provision that selects a forum for future dispute resolution. Frequently, when conflict arises, a party may try to avoid the selected forum and file the first case on their home turf. The other party to the contract has to respond, but how?
Atlantic Marine Construction Co., a Virginia corporation, faced this issue in a construction contract dispute on a Texas project. Despite a standard forum-selection clause requiring litigation of disputes in state or federal court in Norfolk, Virginia, a subcontractor filed a preemptive suit ...
Although the battle over state income taxes between Missouri Governor Jay Nixon and the Missouri General Assembly drew national attention to this week’s Veto Session, three lesser known bills will have a more immediate impact on civil tort litigation in Missouri. On September 11, 2013, the legislature overrode the Governor’s veto on three bills that provide certain limits on tort claims against insured drivers, voluntary health care providers, and hard rock mining companies.
Uninsured Motorist Plaintiffs. House Bill 339 provides that an “uninsured motorist” waives ...
** By HeplerBroom Summer Associate Tiffany B. Wong
A. Direct Participant Liability Negligence Theory in Illinois
In Illinois, it is a bedrock principle of limited liability deeply ingrained in our economic and legal systems that a parent company is not liable for the acts of its subsidiary. Liability for negligence arises when one person breaches a duty of care owed to another. To establish a cause of action for negligence under the law, a plaintiff must establish four “elements”: (1) a duty of care, (2) a breach of that duty, (3) an injury caused by the breach, and (4) resulting ...
In Russell v. SNFA, 2013 IL 113909 (Ill. Apr. 18, 2013), the Illinois Supreme Court held that Illinois courts had jurisdiction over a French company despite the fact that the company had no offices, assets, property or employees in Illinois, no license to do business in Illinois, and did not specifically direct product sales in Illinois and was generally unaware its products were being distributed in the state.
On January 28, 2003, the sole occupant and pilot of a helicopter died after his helicopter crashed in Illinois. The decedent was a resident of Georgia who was living in Illinois ...
Many, many articles have been published in recent years about the benefits and risks of accessing social media sites during the hiring process. Most of the articles focus on the screening of applicants rather than the sourcing of applicants. Screening applicants involves analysis and decision making. Sourcing involves casting a net for applicants by posting job openings. As between screening and sourcing, the use of social media in the screening of applicants is perceived to be more risky as the temptation to eliminate a candidate based solely on their online presence can be great ...
On March 19, 2013, the U.S. Supreme Court unanimously ruled in Standard Fire Ins. Co. v. Knowles that class-action plaintiffs cannot circumvent the jurisdictional requirements of the Class Action Fairness Act of 2005 (“CAFA”) by stipulating damages under the jurisdictional threshold.
CAFA provides federal courts original jurisdiction over class actions where, among other things, the class has more than 100 members and the matter in controversy exceeds the sum or value of $5 million exclusive of interest and costs. To calculate the amount in controversy, the claims of the ...
On January 17, 2013, the Federal Trade Commission (FTC) issued a report revealing an increase in “pay-for-delay” or “reverse-payment” patent settlements between brand-name pharmaceutical companies and their generic counterparts
These controversial settlements typically involve a brand-name drug manufacturer who is granted a drug patent which gives the company the exclusive right to sell the drug for up to 20 years, depending on the type of drug. The patent is then challenged by a generic rival. Rather than risk losing their patent monopoly on account of a judgment ...
The attorney-client privilege is one of the oldest recognized privileges protecting confidential communications between two parties. While the privilege serves as the cornerstone of the attorney-client relationship, the privilege is waived when confidential communications are disclosed to third parties. In fact, the “subject-matter waiver” doctrine holds that where a privileged communication concerning a particular subject is voluntarily disclosed to a third party, waiver of the attorney-client privilege extends to all other communications pertaining to the ...
Following the lead of multiple Illinois appellate districts, the Illinois Supreme Court recently recognized for the first time an actionable tort for “intrusion upon seclusion.” Intrusion upon seclusion is one of four torts generally recognized under the umbrella of the "right to privacy" torts along with public disclosure of embarrassing private facts, publicity which places a person in a false light in the public eye, and appropriation of a person's name, likeness or identity for trade or advertising purposes without consent.