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Verdicts & Settlements

ANTITRUST
Class certification rejected in Whole Foods litigation

WASHINGTON — A federal judge has denied class certification in an antitrust case against Whole Foods Market Inc., striking a blow to the 2008 lawsuit brought by an unhappy customer concerned about rising prices.

The case is an offshoot of the Federal Trade Commission's 2007 challenge to Whole Foods' merger with former competitor Wild Oats. In October 2008, California resident Ekaterini Kottaras filed a civil antitrust lawsuit of her own against Whole Foods in U.S. District Court for the District of Columbia.

U.S. District Judge James Boasberg ruled on Jan. 30 that because class members would need to present evidence that would vary from person to person, certifying a class would be inappropriate.

ATTORNEY FEES
Videoconferencing touted over out-of-state travel

PHILADELPHIA — The estate of a woman suing a Pennsylvania doctor for malpractice does not have to pay the attorney fees and travel costs incurred by the doctor and the hospital while attending an out-of-state deposition, a state trial judge has ruled.

Lackawanna County, Pa., Common Pleas Judge Terrence Nealon ruled that the defense could have relied on videoconferencing as a "viable and less costly alternative" to traveling from Pennsyl­vania to Austin, Texas, to depose the estate's expert doctor.

Although the court could not compel the defendants to cross-examine the expert via videoconference, Nealon declined on Jan. 9 to impose the travel costs on the estate of Marie Wagner following a joint defense motion for counsel fees and travel costs.

CIVIL PROCEDURE
MDL granted in NFL's ­concussion litigation

PHILADELPHIA — The U.S. Judicial Panel on Multidistrict Litigation has granted the National Football League's motion to consolidate four concussion lawsuits against the league in the U.S. District Court for the Eastern District of Pennsylvania, with the potential for 16 similar suits to follow.

In an order filed on Jan. 31, U.S. District Judge John Heyburn II, chairman of the panel, said NFL Properties LLC, as well as plaintiffs in the four main suits and nine potentially related suits, supported the NFL's motion.

The four suits at the center of the panel's decision are Maxwell v. NFL, Pear v. NFL and Barnes v. NFL in the Central District of California and Easterling v. NFL Inc. in the Eastern District of Pennsylvania.

CONSTITUTIONAL LAW
Another plank stricken from Georgia's tort reforms

ATLANTA — A state trial judge has declared unconstitutional language in a 2005 tort reform package that requires juries to apportion liability in civil cases among all who may have harmed the plaintiffs — including alleged wrongdoers who are not defendants and can't pay damages.

The Jan. 11 ruling by DeKalb County, Ga., State Court Judge Alvin Wong is one of several recently addressing the apportionment issue, which is ripening for the Georgia Supreme Court. In 2010, the state high court struck down caps on noneconomic damages in medical malpractice claims as violating the constitutional right to a trial by jury.

Wong rejected a similar argument against the apportionment rule, but said that the provision was so sloppily drafted that it violated the state's constitution.

CRIMINAL LAW
Foreign-bribery prosecution falls apart in Washington

WASHINGTON — A federal judge on Jan. 31 declared a mistrial in a high-profile foreign bribery prosecution, dealing another setback for the Justice Department as the jurors in the case overwhelmingly supported not guilty verdicts for several defendants.

The jurors deliberated for more than a week before telling U.S. District Judge Richard Leon that they were unable to reach a unanimous verdict. The charges stemmed from a two-year sting rooted in the proposed sale of $15 million in military equipment to the African nation of Gabon.

The same panel on Jan. 30 acquitted attorney John Godsey and former U.S. Secret Service official R. Patrick Caldwell in the alleged scheme.

Attorney pleads guilty to killing ex-partner's ex-wife

DALLAS — Plaintiffs' lawyer Scott Mar­shall pleaded guilty on Jan. 20 to murdering Staci Michelle Montgomery, the ex-wife of Marshall's former law partner, Bady Sassin. Marshall received a 40-year sentence.

On Dec. 20, 2009, Marshall shot and killed Montgomery at his suburban Dallas home.

At the time of Montgomery's murder, Marshall was involved in litigation with Sassin, who had sued Marshall over the break-up of their former firm, Marshall Sassin. That case settled in June 2010, according to a motion for nonsuit filed in Dallas County District Court.

Judge imposes safeguards againt false identification

NEW YORK — A state trial judge has imposed detailed ground rules, based on "pertinent scientific and academic literature on eyewitness identification," to reduce the danger of a false identification during a lineup he ordered.

Monroe County, N.Y., Court Judge John DeMarco ordered on Jan. 20 that the lineup must be "double-blind" — meaning that neither the administrators nor the witness viewing it would know if the suspect was present. Additionally, defendant Raymond Flowers and the other participants must be presented sequentially rather than all together.

A crime victim recognized Flowers in a police photo array, but his defense attorneys argued that she was influenced by viewing his photo in connection with another crime two days earlier in local news media.

LABOR LAW
Company can't seal case to protect its reputation

NEWARK, N.J. — A settlement in unpaid-overtime litigation can't be kept under seal just because it might make the employer look bad, a federal judge has ruled, pointing to the long-standing policy of public access in labor cases.

Reputational harm is not enough to overcome the presumption of access to judicial documents in Fair Labor Standards Act cases, accepted by courts largely because of the public interest in workers' rights, U.S. District Judge Jose Linares ruled on Jan. 30.

"There has been a broad consensus established amongst the courts that FLSA settlements are unlike ordinary settlements with confidential terms," Linares wrote.

The suit was lodged in April 2008 by current and former petroleum inspectors who alleged that Camin Cargo Control Inc. of Linden, N.J., failed to pay time and a half for time worked beyond 40 hours in a week. Five plaintiffs also asserted retaliation claims.

LANDLORD/TENANT
Public housing too quick to evict over visitor's crime

NEWARK, N.J. — A state trial judge has placed limits on the widely used "one strike and you're out" policy for evicting tenants from federally subsidized housing.

Essex County, N.J., Superior Court Judge Mahlon Fast ruled that the Newark Housing Authority abused its discretion in trying to oust a tenant whose visiting son was arrested for drug and gun possession at her apartment.

Fast said the authority failed to give genuine consideration to the relevant factors in its stated policy, including the extent of the tenants' involvement in the criminal conduct and the effect of eviction on innocent household members. A "rote statement or cursory evaluation" of those factors does not suffice, he said.

TORTS
Lawyer can proceed against disgruntled former client

SAN FRANCISCO — A lawyer's defamation claims against an ex-client who went online to accuse him of a "horrific fraud" can move forward, a state trial judge has ruled.

San Francisco County Superior Court Judge James McBride dismissed some of the claims brought by malpractice lawyer William Gwire against his former client. But he said Elliot Blumberg crossed the line in essentially accusing Gwire of a crime.

"Publishing a list of Gwire's tax liens and an excerpt of a lawsuit against him by a former client may well be of significance to potential clients," McBride wrote in declining to dismiss the complaint as a strategic lawsuit against public participation, designed to punish litigants for exercising their rights. But the "horrific fraud" claim lacked that factual basis, McBride ruled.

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