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This Week's Feature
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Attorneys' Fees Under ERISA – Is Proportionality Dead?
By Michael W. Thrall
Nyemaster Goode, P.C., Des Moines, Iowa
Attorneys' fee awards that eclipse the underlying judgment in an action brought under the Employee Retirement Income Security Act of 1974, as amended, 29 U.S.C. § 1001, et seq. (ERISA), rankle defendants and defense attorneys, who have long advocated that an attorneys' fee award must or should bear some relationship to the damages awarded the prevailing party. However, on August 20, 2009, the Seventh Circuit Court of Appeals joined the Third, Sixth and Ninth Circuits in rejecting a blanket rule requiring an attorneys' fee award be proportional to the amount of the underlying award of damages in an ERISA action. Is proportionality dead? If so, what legal arguments remain for defendants seeking some degree of rationality in attorneys' fee awards in ERISA cases?
[FULL STORY]
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Legal News
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The Regulation of Climate Change May Be Decided in the Courtroom: The Second Circuit Issues a Decision in Connecticut v. AEP
In a decision that New York Attorney General Andrew Cuomo called "game-changing," the Second Circuit Court of Appeals cleared the way for claims by a consortium of states and land trusts against five of the largest U.S. utilities arising from carbon dioxide emissions. The plaintiffs have alleged that emissions from defendant power companies constitute a nuisance that is contributing to global warming and harming the environment, as well as each state's economy and public health. Plaintiffs' lawsuit seeks to force the power companies to cap their carbon dioxide emissions and subsequently reduce them three percent annually over the next 10 years.
[FULL STORY]
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DRI News
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On-site Registration Is Always an Option!
Did you decide at the last minute that you want to attend the 2009 Annual Meeting in Chicago, but think it’s too late? Well, it’s never too late to register on-site! Don’t miss this opportunity to celebrate 50 years of leadership, excellence and education at the 2009 DRI Annual Meeting in Chicago! Click here or call 312.795.1101 for more information.
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Upcoming Webconference: Preparing Local Governments for New E-Discovery Obligations
Tuesday, September 29, 2009
1:30 - 3:00 p.m. Central
This webconference will focus on two aspects of the e-discovery dilemma facing local governmental entities in today's litigation environment. This 90-minute program will address best practices for local governments to employ in response to a litigation hold, which will allow an easier response to the hold, as well as issues that arise when it is time to collect and produce the information requested. For those that attended the 2009 DRI Civil Rights and Governmental Tort Liability Seminar in New Orleans, this webconference will extend the presentation of Stephen Craig and Linda Sharp. To register, click here.
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PROMOTE YOUR FIRM ONLINE!
DRI is pleased to offer online advertising on www.dri.org! In this challenging economy, this new opportunity provides firms with an economical and effective way of reaching a wide target audience.
• Prominently place your firm logo, tagline and homepage link on several DRI website pages, including the DRI homepage, all seminar description pages, Expert Witness Database and the Membership Directory
• Rates vary depending on page selection
• 4-week run and multiple-month discount packages available
2009 is nearly sold out!
Reserve your 2009 and 2010 placements now!
Please contact Laurie Mokry, DRI Advertising Representative, at lmokry@dri.org or 312.698.6259.
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And The Defense Wins!
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Gordon & Rees San Francisco Insurance Group attorney and DRI member Douglas Scullion teamed with two colleagues recently to win a summary judgment on a multi-million dollar coverage dispute on behalf of two insurance carrier clients. The plaintiff, a former police officer, suffered a dual leg amputation in an accident. He sued the insurers in San Francisco Superior Court for declaratory relief, alleging the insurers owed $9 million in coverage for his claim under successive primary and umbrella policies.
[FULL STORY]
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The West Virginia Supreme Court of Appeals has upheld exclusionary language in State Farm’s auto policy with respect to all-terrain vehicles. State Farm’s policy excludes uninsured motorist coverage when ATVs are operated off-road. The court held this exclusion is clear and unambiguous and does not violate the uninsured motorist statute in Boniey v. Kuchinski, (No. 34152, W.Va., filed May 14, 2009). DRI member E. Kay Fuller, director of litigation at Martin & Seibert, L.C. in Martinsburg, West Virginia, successfully defended State Farm.
[FULL STORY]
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After a two week jury trial, DRI member David C. Anderson of Collins, Einhorn, Farrell & Ulanoff P.C. in Southfield, Michigan, obtained a defense verdict on April 8, 2009, in favor of his lawyer-client who was sued for legal malpractice, breach of fiduciary duty, breach of contract and fraud. Plaintiff’s counsel originally demanded $3 million, and he asked the jury to award nearly $1 million in alleged damages. Post-trial, attorney Anderson obtained a six-figure sanctions judgment against the plaintiffs.
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DRI members Clayton Devin and Laurie Elza of Macdonald Devin in Dallas, Texas (U.S. Kids Golf) and Dennis Brown of Holland & Hart in Denver, Colorado (FEMCO) successfully defended their respective clients in a product liability case in the United States District Court for the Eastern District of Texas. The surviving parents of a deceased twelve-year-old boy alleged that their son’s death resulted from design and manufacturing defects in a steel golf club shaft. They sued U.S. Kids Golf, the designer and importer of the golf club, and FEMCO, the alleged manufacturer of the steel shaft.
[FULL STORY]
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In two consolidated lawsuits related to the suspension and ultimate termination of the plaintiff-physician’s hospital privileges, DRI members C. David Creech, W. Gregory Merritt, and Jay Salsman of Harris, Creech, Ward and Blackerby, P.A. in New Bern, North Carolina, obtained a dismissal on behalf of a hospital. At the United States District Court for the Eastern District of North Carolina, defense counsel brought a successful motion to dismiss the plaintiff’s claims pursuant to 42 U.S.C. § 1983, whereby the plaintiff alleged that his due process rights were violated in the revocation of his hospital privileges. Counsel argued, and the district agreed, that the hospital did not act under color of state law, and therefore, was not subject to Section 1983 liability.
[FULL STORY]
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Keep those defense wins coming! Send a short summary in Word format and a recent photo (.jpg attachment) of yourself to Barb Lowery by email (blowery@dri.org).
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Leader Spotlight
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This week’s DRI leader spotlight shines on Douglas M. Poland, a shareholder in the Litigation Practice Group at the Madison, Wisconsin, office of Godfrey & Kahn, S.C. Mr. Poland currently serves as the program chair for DRI’s 2010 Toxic Torts and Environmental Law Seminar. In addition, he is an active member of DRI’s Commercial Litigation, Drug and Medical Device and Product Liability Committees.
[FULL STORY]
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Quote of the Week
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The reward for work well done is the opportunity to do more.
—Jonas Salk
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DRI CLE Calendar
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The Impact of Caperton v. Massey Coal Co. (webcast)
September 24, 2009
Strictly Automotive
September 24-25, 2009
Hilton La Jolla Torrey Pines, La Jolla, California
Preparing Local Governments for New E-Discovery (webconference)
September 29, 2009
Online Networking 101 – How to Grow Your Practice Using the Internet (webcast)
October 1, 2009
Appellate Advocacy
November 5-6, 2009
Hilton La Jolla Torrey Pines, La Jolla, California
Handling a Trial as a First Chair (webcast)
November 11, 2009
Asbestos Medicine
November 12-13, 2009
Fontainebleau Miami Beach, Miami, Florida
Insurance Coverage and Practice
December 3-4, 2009
Sheraton New York Hotel & Towers, New York, New York
Best Practices for Law Firm Profitability
December 3-4, 2009
Sheraton New York Hotel & Towers, New York, New York
Civil Rights and Governmental Tort Liability
January 27-29, 2010
The Westin San Diego, San Diego, CA
For all other seminars, webconferences and webcasts, click here.
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Current Issues in Medical Liability and Health Care Law
Defending Damages Claims in Business Tort Cases
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