KMK Law Complex Litigation Blog

The Ninth Circuit recently issued a decision that increases the level of antitrust risk exposure faced by companies. 

Last week, the Ninth Circuit deepened the divide among the Circuits regarding ascertainability in class certification. In Briseno v. ConAgra Foods, Inc., 2017 U.S. App. Lexis 20 (9^th Cir. Jan. 3, 2017), the Ninth Circuit rejected the Third Circuit’s line of authority (see Carrera v. Bayer Corp., 727 F.3d 300 (3d Cir. 2013) and Byrd v. Aaron’s Inc., 784 F.3d 154 (3d Cir. 2015)) which requires plaintiffs’ counsel to show ascertainability by demonstrating an administratively feasible and reliable method to determine class membership at the class certification stage.

On September 28, 2016, Ohio foreclosure reform takes effect following the enactment of House Bill 390 (HB 390).  The changes created by HB 390 will impact the foreclosure of both residential and commercial properties.  While Ohio foreclosure reform will undoubtedly cause county courts across the state to make revisions to their local foreclosure procedures and rules, the new law provides long overdue uniformity for foreclosing judgment creditors. Furthermore, the modernization of Ohio’s sheriff foreclosure sales, including the implementation of online sales, finally ushers the Ohio foreclosure process into the 21^st century.  Additionally, the new law expedites the foreclosure of vacant and abandoned residential properties—a positive step in favor of community revitalization efforts to fight against community blight and prevent the existence of “zombie homes.”

Ohio’s Department of Commerce is ramping up efforts to begin the state’s medical marijuana program.  Standards and licensing procedures for cultivators, laboratories, dispensaries and others will be set up over the next year, and the program must be fully up and running by the summer of 2018.  But at the same time, the federal Drug Enforcement Agency (“DEA”) is doubling down on the marijuana ban, keeping the drug listed alongside heroin as a top-level controlled substance.

Two Courts of Appeals have issued decisions during the past week related to cybersecurity and data retention which anyone who maintains electronic data and personal information should read.

An exploding craft beer industry has led to an uptick in lawsuits about beer names and labels.  Craft beer lovers do not always appreciate the lawsuits.  But what do the federal courts think about them?

The Sixth Circuit shook up copyright law – and had some fun with it – in the recent decision Varsity Brands, Inc. v. Star Athletica, with reasoning that hinged on an unusual proposition: “[a] plain white cheerleading top and plain white skirt still cover the body and permit the wearer to cheer, jump, kick, and flip.”  (No. 14-5237, 2015 U.S. App. LEXIS 14522, *51 (6th Cir. Aug. 19, 2015).)   The decision, which found a protectable copyright in stripes, chevrons and patterns on uniforms, stood conventional wisdom on its head, flipped the usual script of copyright analysis, and gave new cheer to fashion designers, who are typically shut out from copyright protection. 

Last week the Seventh Circuit reinstated the Neiman Marcus data breach class action, holding that plaintiffs had satisfied Article III’s standing requirements based on at least some of the injuries they alleged. In doing so, the Seventh Circuit became the first federal court of appeals to rule on a challenge to the standing of purported data breach victims in light of the Supreme Court’s decision in Clapper v. Amnesty International, 133 S. Ct. 1138 (2013), and diverged from the growing majority of federal district courts that have held similar allegations are insufficient to confer standing.

The Supreme Court recently concluded its October 2014 Term; we have provided a summary of the most recent decisions.

In our increasingly technological society, parties are encountering a greater demand for electronically stored information (“ESI”) in litigation. This demand has led to the adoption of a concept called proportionality. Proportionality evaluates the costs and benefits of e-discovery, to determine if discovery production is warranted.