Federal Litigation Updates

Montanile: A Cautionary Tale For ERISA Plans

Matthew Peck
January 27, 2016

The meaning of “appropriate equitable relief” under ERISA Section 502(a)(3) has been the subject of no less than four Supreme Court decisions in this millennium. The Supreme Court’s decision in Montanile v. Board of Trustees of the Nat’l Elevator Indus. Health Benefit Plan is the most recent decision to consider the issue and is an important cautionary tale for ERISA plans.

Click here to view a client alert, authored by Ray Lynch and Matt Peck, that discusses the evolving Supreme Court jurisprudence on the meaning of “appropriate equitable relief” and discusses the practical significance of the Montanile decision for ERISA plans.

SCOTUS: Rail Company Selling Tickets In U.S. Entitled To Foreign Immunity

Neil Bardack
December 18, 2015

In reversing the Ninth Circuit, the United States Supreme Court in the unanimous decision of OBB Personenverkehr AG v. Sachs, 136 S.Ct. 390 (12/1/15) clarified what is required to establish a claim against a foreign entity that would not be barred by sovereign immunity under the Foreign Sovereign Immunities Act ( 28 U.S.C. section 1605 (a)(2)) (“Act”). Under the Act, a foreign state is immune from the jurisdiction of the courts of the United States or individual States, unless the action is based upon commercial activity carried on in the United States by the foreign state.

In this case, plaintiff Sachs, a California resident, bought a Eurail pass for rail travel in Europe from a Massachusetts-based travel agency. Ms. Sachs was injured in a train station in Austria. The railway was treated as an agency of a foreign state. Plaintiff sued under theories of negligence and strict liability, but the gravamen of the suit was the conduct of the railway at the site of the injury.

The Northern District Court dismissed the action under the Act finding the commercial activity exception to the Act did not apply. The Ninth Circuit en banc reversed on the grounds that the ticket sale by a travel agency constituted commercial activity in the United States by a foreign state; and as the suit was based upon that activity, it was a necessary element of each of plaintiff’s causes of action.

Continue reading SCOTUS: Rail Company Selling Tickets In U.S. Entitled To Foreign Immunity

Proposed E-Discovery Rule To Test Document Retention Policies

Chris Spiers and Matthew Peck
May 6, 2015

The management of electronically stored information (“ESI”) is becoming an increasingly prominent concern for companies, large and small, and their attorneys tasked with managing litigation. Given the exponential growth in the volume of ESI over the past two decades, it should come as no surprise that there has been a parallel increase in the amount of litigation related to the management (and mismanagement) of ESI under the Federal Rules of Civil Procedure.

Click here for a general outline of best practices for companies and their attorneys related to the identification and preservation of relevant ESI through internal document retention policies and the issuance of litigation hold letters. The article, co-authored by Matt Peck and Chris Spiers, first highlights recent case law that illustrates the potential scope and severity of sanctions imposed on parties who fail to adequately identify, collect and preserve relevant ESI under the Rules.

The article then discusses the proposed amendments to Rule 37(e), which, if adopted, would provide a uniform process for the courts to analyze spoliation in the ESI-context and resolve the existing split of authority regarding the culpability required to impose the harshest, case-dispositive sanctions under the current Rules.


9th Circuit: Unauthorized Bob Marley Shirts Constituted False Endorsement

Janie Thompson
March 2, 2015

Is that an official Bob Marley shirt you’re wearing?  In Fifty-Six Hope Road Music, Ltd. V. A.V.E.L.A. Inc., the Ninth Circuit recently affirmed a jury decision finding that defendants’ use of Bob Marley’s image on T-shirts and other merchandise constituted false endorsement under the Lanham Act and intentional interference with a prospective economic advantage.

Continue reading 9th Circuit: Unauthorized Bob Marley Shirts Constituted False Endorsement