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Litigation

Arkansas Business Litigation Blog

Arkansas business law and 8th U.S. Circuit Court of Appeals developments in intellectual property (patent, trademark, copyright, trade secrets and covenants not to compete).
By H. William Allen et al.

Post Frequency: 10.8/day

Last Entry: December 31, 2009 at 16:54:02

Unwanted Text Messages Does Not Give Rise to a Computer Fraud Claim

Posted on December 31, 2009
An interesting application of the Computer Fraud and Abuse Act ("CFAA") was attempted in Czech v. Wall Street on Demand, Inc., 2009 U.S. Dist. LEXIS 114125 (D. Minn. Dec. 8, 2009). Wall Street on Demand (WSOD) provides customers with current reports and updates...

Arkansas Savings Statute Prevents Dismissal with Prejudice for Defective Service

Posted on December 30, 2009
An imporatnt question of procedure was answered in Rettig v. Ballard, 2009 Ark. 629.Rettig filed suit within the statute of limitations, although the summons was defective. When Ballard moved to dismiss for defective service, the statute of limitations had run...

Service of Unsigned Copy of Complaint is Valid Service

Posted on November 23, 2009
Jones v. Turner, 2009 Ark. 545. The plaintiff filed a properly signed complaint with the clerk. The plaintiff timely served a copy of the complaint and summons, but the defendant's copy of the complaint was not signed. The circuit court dismissed the complaint, holding that service was defective because of the missing signature...

District Court Predicts Eighth Circuit Would Apply Application Approach to Filing a Copyright Lawsuit

Posted on June 10, 2009
The District Court of Minnesota denied a motion to dismiss for lack of jurisdiction in Tri-Marketing, Inc. v. Mainstream Marketing Services, Inc., 2009 U.S. Dist. LEXIS 42694 (5/19/09). Tri-Marketing filed suit for copyright infringement. Tri-Marketing had submitted its copyright application and fees but had not yet received the registration...

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In Eighth Circuit, Attorneys are Assumed to Receive ECF Notice

Posted on June 09, 2009
The Eighth Circuit affirmed summary judgment in American Boat Co., Inc. v. Unknown Sunken Barge, No. 08-2166 (6/4/09). The district court granted summary judgment to the United States. Plaintiffs failed to timely appeal because they claim not to have received the ECF notice of the summary judgment...

Preliminary Injunction Denied in Trade Secret Case After TRO Granted

Posted on June 05, 2009
The Eighth Circuit affirmed denial of a preliminary injunction in CDI Energy Services, Inc. v. West River Pumps, Inc., No. 08-1031 (5/29/09). CDI sells oilfield equipment. It had one location in North Dakota with three employees. Those employees left CDI to form West River, a competing business...

Effective July 1, Official Arkansas Reports Will be Electronic Only

Posted on June 04, 2009
The Arkansas Supreme Court made a drastic change to Rule 5-2 in In re: Arkansas Supreme Court and Court of Appeals Rule 5-2, No. 09-540 (5/28/09). Effective July 1, 2009, the electronic version of appellate decisions posted on the Arkansas Judiciary website will be the official reports...

Tacit Contract Created From Practice of Using Fax for Orders

Posted on June 04, 2009
The Arkansas Court of Appeals affirmed creation of a tacit contract in Crown Custom Homes, Inc. v. Buchanan Services, Inc., No. 09-20 (5/27/09). The parties had a long history where Crown would send a request for work via fax. Buchanan would perform the work and then send a bill...

Reference to a Non-Testifying Expert at Trial is Reversible Error

Posted on May 28, 2009
The Arkansas Supreme Court reversed a $689,526 judgment in Western Sizzlin Corp. v. Parks Land Co., LLLP, No. 08-1199 (May 14, 2009). Parks filed suit for claimed violations of a lease agreement. Western Sizzlin hired an expert to calculate the cost of repair to the property...

Arbitration Provision Prohibiting Class Actions is Upheld

Posted on April 29, 2009
An arbitration provision that prohibited a class action was upheld in Smith v. Comcast Corp., 2009 U.S. Dist. LEXIS 25348 (E.D. Ark. 3/17/09). Plaintiff filed a class action alleging fraud and deceptive trade practices. However, Plaintiff's contract contained an arbitration clause...

Dismissal Affirmed for Failure to Strictly Comply with Service Rules

Posted on April 17, 2009
The Arkansas Supreme Court affirmed dismissal in Trusclair v. McGowan Working Partners, No. 08-769 (4/16/09). Trusclair voluntarily dismissed his first complaint. On the second complaint, the summons incorrectly stated that McGowan, a foreign corporation, had 20 days to answer...

Holding of Contempt Reversed When Trial Court did not Provide Specific Instructions

Posted on April 16, 2009
The Arkansas Supreme Court reversed a holding of contempt in Holifield v. Mullenax Tax Financial and Tax Advisory Group, No. 08-955 (4/15/09). Holifield was a former employee of Mullenax. When he left, Mullenax filed suit alleging trade secret misappropriation...

Decision of Alcoholic Beverage Control Board Affirmed

Posted on April 10, 2009
The Arkansas Supreme Court affirmed a decision by the Alcoholic Beverage Control Board (the "Board") in Arkansas Beverage Retailers Association v. Langley, No. 08-287 (4/9/09). The dispute stems around a liquor store opened by Sam's Club...

Arbitration Compelled for Claims Under Arkansas Deceptive Trade Practices Act

Posted on April 09, 2009
The Arkansas Court of Appeals compelled arbitration of claims that sounded in contract in CEI Engineering Associates, Inc. v. Elder Construction Co., No. 08-601 (4/8/09). Elder hired CEI to provide engineering services on two projects, and the contract contained an arbitration clause...

Emotional Distress Cannot Form the Basis of a Breach of Fiduciary Duty Claim

Posted on April 03, 2009
The Arkansas Supreme Court reversed a judgment based on emotional distress in Rees v. Smith, No. 08-293 (4/2/09). Smith alleged that Rees represented her in a lawsuit, demanded sexual favors for continued representation, and that she engaged in sex with Rees based on these demands...

Deadlines for Appeal From District Court are Different From the Circuit Court Counterpart

Posted on March 19, 2009
A hard lesson regarding appellate deadlines was learned in Arkansas State Univ. v. Professional Credit Management, Inc., No. 08-672 (3/19/09). Professional Credit obtained a judgment against ASU in state district court. The Supreme Court dismissed the appeal for lack of subject matter jurisdiction because ASU failed to file the district court record with the circuit court within 30 days of the judgment...

Contract Rescinded for Unilateral Mistake When Purchase Price was 20% of the Property Value

Posted on March 12, 2009
The Arkansas Court of Appeals affirmed rescission of contract based on unilateral mistake in T-1 Construction, Inc. v. Tannenbaum Development Co., LLC, No. 08-889 (March 11, 2009). Tannenbaum signed a contract to sell five lakefront lots to T-1...

Even When Purchase Order Has Integration Clause, Course of Dealing Evidence Admissible to Interpret Contract

Posted on March 12, 2009
The Arkansas Court of Appeals affirmed a $1.3 million judgment in L.F. Brands Marketing, Inc. v. Dillard's, Inc., No. 07-1210 (March 11, 2009). L.F. Brands sold clothing to Dillard's. When Dillard's would make a purchase, it would submit a purchase order that included an integration clause saying the purchase order represented the entire agreement...

Summary Judgment Affirmed for Outrage Claim in Employer Dispute

Posted on March 04, 2009

Cities Can Raze Private Homes if They are Detrimental to Public Welfare

Posted on February 28, 2009

Fraud Allegations Cannot Create a Private Class Action Challenging Cable Rates

Posted on February 27, 2009

Eighth Circuit Awards Former Employee Damages Under Noncompete Agreement

Posted on February 26, 2009
It is rare that a former employee wins damages based on a noncompete agreement, but that is what happened in Bannister v. Bemis Co., Inc., No. 08-1634 (2/25/09). Bemis had a noncompete agreement with Bannister that prohibited him from working for a Bemis competitor for 18 months after his employment with Bemis ended...

Two Computer Fraud Cases Reach Opposite Results on Motions to Dismiss

Posted on February 16, 2009
Employees accessed computer files of their employer, and they later set up their own competing firm. This was the situation in Ervin & Smith Advertising v. BTM, Inc., 2009 U.S. Dist. LEXIS 8096 (Feb. 3, 2009) and Lasco Foods, Inc. v. Hall and Shaw Sales, 2009 U...

Missouri Computer Fraud Claim is Dismissed for Improper Pleading

Posted on February 16, 2009
Two employees accessed computer files of their employer, and they later set up their own competing firm. This was the situation in Lasco Foods, Inc. v. Hall and Shaw Sales, 2009 U.S. Dist. LEXIS 4241 (E.D. Mo. Jan. 22, 2009). The former employer brought a number of claims, including violations of the Stored Wire and Electronic Communications Act, as well as the Computer Fraud and Abuse Act...

Arkansas Appeals Blog

Posted on February 09, 2009
Cullen & Co. of Little Rock is publishing the first blawg devoted to Arkansas appellate law: Arkansas Appeals Blog. Read their January 26 post to learn why you need to appeal each individual ground of a bench trial ruling.

Eighth Circuit Requires Actual Dissemination of Sound Recordings for Copyright Infringement

Posted on January 16, 2009
An interesting issue about music distribution over P2P networks is working its way to the Eighth Circuit. See Capitol Records, Inc. v. Thomas, 2008 U.S. Dist. LEXIS 106225 (D. Minn. Dec. 23, 2008). This case appeared to be a routine copyright infringement case...

Interesting Times for Mac OS X Trademark and Copyright

Posted on January 16, 2009
A couple of interesting issues with trademark and copyright management are going on with Apple's OS X operating system. InformationWeek reports that Psystar has moved to dismiss Apple's copyright infringement claim based on the system, arguing that Apple failed to register a copyright for OS X ...

Registering a Corporate Name is not Trademark Use

Posted on January 15, 2009
An odd dispute over a school newspaper name occurred in St. Louis Univ. v. Meyer, 2008 U.S. Dist. LEXIS 104032 (E.D. Mo. Dec. 24, 2008). The school newspaper at St. Louis University is "The University News." In 2007, circumstances arose where the paper may have to break away from the university...

How to File a Copyright Suit Without a Copyright Registration

Posted on December 03, 2008
A unique procedural twist was highlighted in TMT Mftg., Inc. v. Illowa Resource Develop, Inc., 2008 U.S. Dist. LEXIS 94060 (S.D. Iowa 11/14/08).TMT filed suit for, among other things, patent infringement and copyright infringement. TMT did not have a patent or a copyright registration, and Illowa moved to dismiss these claims...

Writ of Prohibition Granted in Injured Worker Case

Posted on December 02, 2008
The Arkansas Supreme Court granted a writ of prohibition in Int'l Paper Co. v. Clark County Circuit Court, No. 08-861 (11/20/08). Edna Pennington was killed at IP's facility in Gurdon. Her husband filed a lawsuit alleging that IP failed to provide a safe work environment...

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