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Showing posts from April, 2010

Interesting Analysis of Stolt-Nielsen from the ADR Prof Blog

On April 27th, the United States Supreme Court issued its opinion in Stolt-Nielsen v. Animalfeeds invalidating an arbitration panel's determination that the parties' agreement implicitly allowed class arbitration. We intend to do some more in-depth analysis of Stolt-Nielsen (as well as the Supreme Court's Shady Grove Opinion ) as time permits, but in the meantime, the folks at the ADR Prof Blog offer some very thought-provoking takes on Stolt-Nielsen.

Attorney Required to be Physically Present During Collection of Electronic Information From Client

The importance of identifying and producing electronic information continues to underscore attorney obligations to be actively engaged in client document production. As reported in the Delaware Corporate and Commercial Litigation Blog , a Delaware Court of Chancery Vice Chancellor determined that the client's "unsatisfying" production demonstrated that its "self-collection" was insufficient, and ruled that the attorney should meet in person with the client to physically review the devices (including personal computers) where electronic information may be stored.

S.C Supreme Court Affirms SCPSC Approval of Nuclear Generating Facility

On April 26, 2010, the South Carolina Supreme Court affirmed the decision of the South Carolina Public Service Commission (Commission) approving SCE&G’s application to construct and operate a two-unit nuclear facility in Jenkinsville, South Carolina and to revise its rates to reflect the cost of capital applied to the project. Friends of the Earth v. The Public Service Commission of South Carolina , et al ., Op. No. 26811 (S.C. April 26, 2010). Friends of the Earth, a not-for-profit group, opposed the new facility before the Commission. On appeal, Friends of the Earth urged the Court to apply a new standard of “heightened scrutiny” when reviewing this decision of the Commission under the recently enacted Base Load Review Act . The Court found no basis in law for this request, stating that varying degrees of scrutiny are ordinarily limited to those cases where a state statute’s constitutionality is being challenged under the Equal Protection Clause. Accordingly, the Court app

9th Circuit Court of Appeals Affirms Enormous Class Action Against Wal-Mart

In Dukes v. Wal-Mart , the 9th Circuit Court of Appeals in San Francisco upheld a District Court decision certifying a nationwide class consisting of all women who have worked at Wal-Mart since the end of 1998. According to the ABA Journal , this is the largest class action suit ever, consisting of over one million plaintiffs. As noted by the Marquette Law School Faculty Blog , the dissent by Chief Judge Alex Kozinski sets up a Petition for Certiorari , and the case may be headed for the United States Supreme Court.

U.S. Supreme Court to Consider How Much Privacy Employees Have In Text Messages

Good article in the National Law Journal by Marcia Coyle about the City of Ontario, Calif. v. Quon case that the Supreme Court will hear on Monday. SCOTUSblog also has a detailed analysis of the case. At issue is whether a member of the Ontario SWAT team had a Fourth Amendment "reasonable expectation of privacy" in text messages transmitted on his SWAT pager, and whether the senders of messages to the SWAT pager had their own reasonable expectation that the City of Ontario would not review their messages.

A Conversation with Jennifer McLeod of Ellis Lawhorne On Estate Planning

Article from MidlandsBiz

NJ Supreme Court Opinion Addresses Corporate Electronic Communications Policies

A decision from the New Jersey Supreme Court is required reading for any company with a policy setting out acceptable email and online use for its employees. In Stengart v. Loving Care , the NJ Supreme Court addressed how much privacy and confidentiality an employee could expect when she exchanges personal emails with her attorney via a password-protected, web-based email account accessed on a company computer. Loving Care provided Stengart with a laptop to use for company business, from which she had access to the Internet through Loving Care's computer server. Stengart used the laptop to access a personal, password-protected Yahoo email account on Yahoo's website, by which she communicated with her attorney about her work situation. Stengart was unware that the computer's browser software automatically saved a copy of each webpage Stengart viewed-- including each email message she exchanged with her attorney-- on the computer's hard drive. Loving Care had a fo

Can a Litigant be "In Contempt of Court" When His Fans Flame the Judge at His Bequest?

Just as personal jurisdiction has been recast by the internet and online commerce, so too may new forms of communication expand the the concept of "contempt of court." Very interesting article from Wired about a case currently being considered by the Seventh Circuit Court of Appeals. Litigant Kevin Trudeau , he of infomercial fame, apparently urged his fans to send emails to District Judge Robert Gettleman to try to get the judge to side with Trudeau in a pending civil lawsuit. The resulting flood of messages actually caused the judge's Blackberry to freeze up, and Gettleman found Trudeau in contempt of court and sentenced him to jail. The Court of Appeals stayed the sentence, pending a decision on whether contempt of court can occur in a court's "virtual presence."

4th Circuit Affirms Summary Judgment Against Party That Failed to Respond to Summary Judgment Due to "Computer Problems"

This opinion  in Robinson v. Wix Filtration Corporation LLC, 599 F.3d 403 (4th Cir. March 26, 2010), is courtesy of Technology and Marketing Law Blog , by way of Abnormal Use . Appellees filed a Motion for Summary Judgment, notice of which was sent to counsel for the Appellant via the Case Management/Electronic Case Filing (CM/ECF) system utilized by the United States District Court for the Western District of North Carolina (and functionally similar to that used by the District Court of South Carolina). After Appellant failed to respond to the Motion for Summary Judgment, the District Court granted the Appellees' motion and dismissed the case. In seeking relief from the entry of summary judgment, Appellant claimed that its counsel did not receive the notice of filing due to computer problems in his office-- a virus infecting that computer system and the expiration of the firm's website domain name registration. Upholding the District Court's decision to deny relief

D.C. Circuit Reverses FCC Regulation of Broadband Network Management Practices

Davis, Wright Tremaine has penned an an excellent summary of the U.S. Court of Appeals for the D.C. Circuit decision ruling that the Federal Communications Commission lacked authority to regulate Comcast's network practices for its high-speed internet services. One key takeway is that although the Court invalidated the FCC's approach in this particular case, the opinion (as noted by the FCC) did not categorically reject other statutory means by which the FCC might address "preserving an open Internet." Expect more FCC proceedings, litigation, or legislation addressing the FCC's authority to regulate high-speed internet access under the Federal Communications Act.

Florida Court Determines Continuance of Foreclosure Sale Based Solely on Benevolence/Compassion an Abuse of Discretion

Thanks to Wes Few for this case and summary. In Republic Federal Bank v. Doyle , Florida's Third District Court of Appeals ruled that although the power to grant a continuance is generally within the discretion of the trial court, "benevolence and compassion" does not constitute a lawful basis to grant same. While denying foreclosing lender's petition to overrule the trial court's grant of continuance of an August 29, 2009 foreclosure sale date based upon not wanting to "see anybody lose their home," the court determined that the trial court's "continuance was an abuse of discretion in the most basic sense of that term." The debtor had previously postponed a November 4, 2008 foreclosure order by filing for bankruptcy -- a filing which was later dismissed as frivolous. The Court noted that the statute governing foreclosures required the foreclosure sale to occur not more than 35 days after the entry of judgment. The Court of Appeal d

South Carolina Supreme Court to Hear Arguments on Application of Base Load Review Act

Oral arguments at 10:00am this morning in South Carolina Energy Users Committee v. The South Carolina Public Service Commission, South Carolina Electric & Gas, and Office of Regulatory Staff. The South Carolina Public Service Commission (Commission) approved SCE&G's Application for a Certificate of Environmental Compatibility and Public Convenience and Necessity and for a Base Load Review Order to construct and operate a nuclear facility in Jenkinsville. The Baseload Review Act, enacted in 2007, requires the Commission to review and approve certain generating facilities proposed by investor owned utilities (of which SCE&G is one) that are going to serve retail customers in South Carolina. The issue before the Court, raised by the South Carolina Energy Users Committee , is whether the Commission lacked the authority under the Base Load Review Act ("Act") to approve capital cost contingencies and include them in the forecast of the anticipated capital cos

South Carolina Supreme Court Rules Municipality Possessed the Sole Right to Provide Electric Service Following Annexation

In City of Newberry v. Newberry Electric Cooperative, Inc. , the South Carolina Supreme Court reversed the South Carolina Court of Appeals’ decision holding that the Newberry Electric Cooperative (Cooperative) could provide electric service to an area owned by Wal-Mart and annexed by the City of Newberry (City). When Wal-Mart begin negotiations to construct a store on the site, the area was assigned to the Cooperative by the South Carolina Public Service Commission pursuant to the South Carolina Electric Cooperative Act, S.C. Code Ann. §§ 33-49-10, et. seq. (2006 and Supp. 2008) (Electric Cooperative Act). On June 21, 1999, the Cooperative and Wal-Mart entered into agreements for the Cooperative to provide electric service to the property. On June 27, 1999, the City annexed the property. Generally speaking, a municipality enjoys an absolute right to provide electric service to property it annexes. In the event that an electric cooperative is providing electric service to property

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Ellis Lawhorne attorneys Beach and Sojourner featured in Trust Litigation article in Palmetto Banker

Ellis Lawhorne shareholders John F. Beach and David C. Sojourner, Jr., were featured in the Spring 2010 issue of Palmetto Banker, a publication of the South Carolina Bankers’ Association. In the article piece, Beach and Sojourner provide insight into complex trust litigation, the most common trust-related disputes, and how this litigation impacts bank trust departments. Click here to view the Spring issue of Palmetto Banker

S.C. Court of Appeals Construes Protest Exemption Provision of South Carolina Dealers Act

In Southeast Toyota Distributors v. Jim Hudson Superstore , a panel of the South Carolina Court of Appeals ruled that the relocation of the Toyota Center dealership in Lexington County was exempt from protest pursuant to S.C. Code Ann. § 56-15-46(C) (2006). This issue was a question of first impression in South Carolina, as no appellate court had previously construed this particular statute. On May 30, 2006, Anderson Columbia Acquisition, LLC, d/b/a/ Toyota Center (Anderson) entered into an agreement with Rish-Corey Automotive, Inc. to purchase the assets of the Toyota Center dealership. Toyota Center has been located at 1640 Airport Boulevard in West Columbia since 1972. Anderson also entered into a dealer agreement with Appellant Southeast Toyota Distributors, LLC (SET), the authorized distributor of Toyota vehicles, parts, and accessories for South Carolina, North Carolina, Georgia, Florida, and Alabama. Because of the inadequacy of the existing facility at 1640 Airport Boulev