Litigation

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...

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...

To access blog feed reader register for free. (You will also learn about new ways to read and access the freshest law blogs.)

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...

Class Certification Affirmed on Second Appeal

Posted on December 02, 2008
The Arkansas Supreme Court affirmed class certification in Teris, LLC v. Chandler, No. 08-692 (11/13/08). This case stems from a mandatory evacuation following an explosion and fire at the Teris facility. The original class certification was reversed and remanded because it contained two different class definitions...

When is an Arbitration Award not an Award at all?

Posted on November 26, 2008
A strange result regarding arbitrations occurred in COKeM Int'l, Ltd. v. Riverdeep, Inc., 2008 WL 4417323 (D. Minn. 9/24/08).   COKeM distributed Riverdeep software pursuant to a licensing agreement. The parties had a dispute and filed various claims against each other...

Lawsuit Involving Mitch Mustain Ends in Anticlimatic Fashion

Posted on November 25, 2008
The Arkansas Supreme Court issued two opinions in Terry v. White, the lawsuit involving Mitch Mustain (most recently posted here 8/21/07).   In Case No. 07-1096, the court dismissed the appeal as moot because John White has resigned as chancellor of the University of Arkansas...

Arkansas Trademark Infringement Lawsuit Filed Over Bad Boy Name

Posted on September 17, 2008
An Arkansas trademark infringement complaint was recently filed. Bad Boy Bad Boy, Inc. v. Bad Boy Enterprises, LLC, No. 08-050 (E.D. Ark., filed 9/12/08). Bad Boy Inc. sells lawnmowers, while  Bad Boy Enterprises sells all terrain vehicles that are primarily used for hunting and related outdoor travel...

First-Filed Rule Keeps Interesting Intellectual Property Case in Arkansas

Posted on September 09, 2008
The Eastern District of Arkansas denied a motion to dismiss or transfer in Agri-Process Innovations, Inc. v. Greenline Industries, LLC, 2008 WL 4126909 (E.D. Ark. 9/4/08).   Agri-Process Innovations (API) designs and sells biodiesel plants. They worked on several projects with Greenline Industries, but after a falling out, API filed a lawsuit in Arkansas state court...

CBS Files Suit For Use of NFL Player Statistics in Fantasy Football

Posted on September 05, 2008
It's deja vu all over again in the Eighth Circuit to determine what intellectual property rights professional sports players have in their statistics. This time, CBS has filed a declaratory judgment against the NFL Players Association. See CBS Interactive Inc...

District Court Within Eighth Circuit Finds That Sponsored Link Advertising is Use in Commerce

Posted on August 28, 2008
The District Court of Minnesota has determined that keyword advertising is "use in commerce" for purposes of trademark infringement. Hysitron Inc. v. MTS Systems Corp., 2008 WL 3161969 (D. Minn. 8/1/08).   MTS purchased the term "hysitron" to generate a sponsored link through Google, and Hysitron filed suit...

Arkansas Copyright Case Will Proceed; Motion to Dismiss Denied

Posted on August 27, 2008
Defendant's motion to dismiss was denied in Ellis v. Black, 2008 WL 3539524 (W.D. Ark. 8/11/08)(previously posted 6/2/08).This is a copyright infringement case based on plaintiff's Relocation Guide Mountain Home, Arkansas. Black moved to dismiss claiming the work lacked the requisite originality for copyright protection...

Cristal Loses Trademark Infringement Case Because of Laches

Posted on August 26, 2008
The District Court of Minnesota granted summary judgment based on laces in Roederer v. J. Garcia Carrion, S.A., 2008 WL 2901609 (D. Minn. 7/23/08).   Roederer, which produces the famous Cristal champagne, filed suit for trademark infringement and dilution based on the defendants' selling Cristalino wine...

Rotoworks Wins Substantial Judgment in Arkansas Trademark Case

Posted on August 21, 2008
On several occasions, we have posted about Rotoworks Int'l Ltd. v. Grassworks USA, LLC (most recently posted here 11/21/07). The case has concluded in a very favorable judgment for Rotoworks.The jury awarded a total of $578,545.66 for trademark infringement...

U.S. District Court for the Western District of Arkansas Holds Stranded Airline Passenger Has Tort Claims Under State Law

Posted on July 30, 2008
In Ray v. American Airlines, Inc., 2008 WL 2323923 (June 2, 2008), the United States District Court for the Western District of Arkansas, Judge Robert Dawson, held that an airline passenger who was allegedly confined against her will on the plane, under "deplorable conditions" while the plane waited on the tarmac for approximately 11 hours, has claims under state law for the torts of false imprisonment, outrage, and negligence...

Arkansas Supreme Court Rejects Eastern District's Prempro Decision; Affirms Certification of Nationwide Class Action

Posted on June 30, 2008
In a powerful example of Arkansas's "liberalized" class-action procedure, the Arkansas Supreme Court affirmed Miller County Circuit Court Judge James Scott Hudson's certification of a nationwide product-liability class action. General Motors Corporation v...

Arkansas Court of Appeals Upholds Dismissal of Breach of Sales Contract Based On Forum Selection Clause; Counterclaim for Equitable Value of Use of Property Did Not Waive Clause

Posted on June 30, 2008
The Arkansas Court of Appeals affirmed Sebastian County Circuit Judge James O. Cox's dismissal based on a forum-selection clause in New Life Beauty Center, Inc.'s v. Palomar Medical Technologies, LLC. New Life sued Palomar for breach of a sales contract, apparently medical equipment...

Variances in State Laws Have no Effect on Arkansas Class Action Certification

Posted on June 20, 2008
The Arkansas Supreme Court handed out a big decision on Arkansas class action law: General Motors Corp. v. Bryant, No. 07-437 (6/19/08).  The claim is that General Motors sold trucks and SUVs with a defective parking brake system. The class involves 4 million consumers in all 50 states bringing claims for breach of express warranty, implied warranty, and the Magnuson-Moss Warranty Act...

Microsoft Files Arkansas Trademark and Copyright Infringement Case

Posted on June 11, 2008
Microsoft has filed a lawsuit alleging trademark infringement and copyright infringement. See Microsoft Corp. v. Delta Computer Experts, LLC, No. 08-0168 (E.D. Ark., filed 6/9/08). According to the complaint, defendants distributed unauthorized copies of Microsoft software like Word and Power Point...

Arkansas Deceptive Trade Practices Act Cannot Apply to the Practice of Law

Posted on June 06, 2008
The Arkansas Supreme Court affirmed dismissal in Preston v. Stoops, No. 07-805 (6/5/08). Stoops filed a lawsuit on behalf of Preston in Pulaski County. The case was dismissed because Stoops, an Oklahoma attorney, was not licensed to practice in Arkansas...

Summary Judgment Reversed in Another MBNA America Case

Posted on June 05, 2008
This time the case is Helton v. MBNA America Bank, N.A., No. 07-759 (6/4/08), another MBNA America arbitration case that follows Danner v. MBNA, (previously posted 4/27/07), MBNA v. Blanks (previously posted 9/19/07) and MBNA v. Gilbert (previously posted 10/31/07)...

Arkansas Has Jurisdiction Over Virginia Resident

Posted on June 05, 2008
The Arkansas Court of Appeals reversed dismissal for lack of personal jurisdiction in Roberts v. Bendos, No. 07-903 (6/4/08).  Bendos lives in Virginia; she hired Roberts to pursue a wrongful death action on behalf of her sister's estate in Saline County...

U.S. Supreme Court Denies Certiorari in Baseball Statistics Right of Publicity Case

Posted on June 03, 2008
We previously posted (10/16/07) the Eighth Circuit's decision in C.B.C Distribution and Marketing, Inc. v. MLB Advanced Media, L.P., holding that use of baseball players' names and statistics in fantasy games did not violate the players' rights of publicity...

Mountain Home Relocation Guide Subject of Arkansas Copyright Lawsuit

Posted on June 02, 2008
A copyright infringement lawsuit has been filed over a relocation guide. Ellis v. Black, No. 08-3025 (W.D. Ark., filed 5/30/08). According to the complaint, Ellis owns the copyright to Relocation Guide Mountain Home, Arkansas. Ellis temporarily gave Black permission to use the guide, but Black has continued to use the guide...

Benefit Resource Fails to Get Preliminary Injunction for Trade Secret Misappropriation and False Advertising

Posted on June 02, 2008
The District Court of Minnesota denied a preliminary injunction based on trade secret misappropriation and false advertising in Benefit Resource, Inc. v. Apprize Technology Solutions, Inc., 2008 WL 2080977 (D. Minn. 5/15/08).  BRI owns a software product called UBenefit...

Insurer Cannot Recover Attorney's Fees Under a Unilateral Reservation of Rights

Posted on June 01, 2008
The Arkansas Supreme Court accepted certification of a question from the United States District Court for the Eastern District of Arkansas in Medical Liability Mut. Ins. Co. v. Alan Curtis Enterprises, Inc., No. 07-991 (5/29/08). The question is whether an insurer, once it has received judgment it has no duty  to defend the insured, may the insurer recover attorney's fees in defending the lawsuit based solely on its reservation of rights?  The supreme court noted the majority rule would allow the insurer to recover attorney's fees...

Rule 11 Sanctions Imposed for Frivolous Motion to Set Aside Judgment

Posted on May 30, 2008
The Arkansas Supreme Court affirmed the granting of Rule 11 sanctions in Reeve v. Carroll County, No. 07-1239 (5/29/08). During a hearing on a motion to dismiss, the parties reached settlement. They read the terms of the settlement into the record, and no one objected...

Severance Pay to Dr. Roy Brooks is not an Illegal Exaction

Posted on May 30, 2008
The Arkansas Supreme Court affirmed summary judgment in Gray v. Mitchell, No. 07-858 (5/29/08). This case involves the much-publicized termination of Dr. Roy Brooks, former superintendent of the Little Rock School District. As part of the termination, the school board payed Dr...

CDI Contractors Wins $40,000 Attorney's Fees Defending Contract Claim Against Sub-Contractor

Posted on May 21, 2008
The Arkansas Court of Appeals affirmed an award of attorney's fees in Meyer v. CDI Contractors, LLC, No. 07- (5/21/08).  CDI hired Meyer as a subcontractor to perform earthwork a project for the Church at Rock Creek. After CDI canceled the contract, Meyer filed suit for fraudulent inducement to contract...

Arkansas Attorney's Fee Statute Does Not Apply to Declaratory Action, but Plaintiff Can Get Costs

Posted on May 15, 2008
The Arkansas Supreme Court reversed a grant of attorney's fees in Hanners v. Giant Oil Co. of Arkansas, Inc., 07-1314 (5/15/08) (previously posted 3/21/07).  Giant Oil filed a declaratory action to decide the parties' rights under a contract. There were no claims for damages...

Arkansas Deceptive Trade Practices Act Case Dismissed From Federal Court

Posted on May 13, 2008
The Western District of Arkansas dismissed a case based on the Arkansas Deceptive Trade Practices Act ("ADTPA") in Shimoda-Atlantic, Inc. v. Financial Industry Regulatory Authority, Inc., 2008 WL 2003160 (W.D. Ark. 5/8/08).  Shimoda-Atlantic brought this case against FINRA (formerly NASD) claiming violations of the ADTPA for fraudulent securities registrations...

Arkansas Trademark Infringement Case Dismissed for Lack of Jurisdiction

Posted on May 08, 2008
The Western District of Arkansas dismissed a trademark case for lack of jurisdiction in Flexible Staffing Services, Inc. v. Integro Employment Services, Inc., 2008 WL 1928827 (W.D. Ark. 4/29/08) (previously posted 1/23/08). Integro filed an Arkansas state trademark case against one of FSS's affiliates in Northwest Arkansas...

Eighth Circuit Affirms Dismissal of Securities Fraud Claim Against Merrill Lynch

Posted on May 07, 2008
The Eighth Circuit affirmed dismissal of claims based on the Arkansas Securities Act and fraud in Benton v. Merrill Lynch & Co., Inc., No. 07-2224 (5/5/08).  In 2001 and 2002, David Howell fraudulently obtained money from various investors...

Class Certification Affirmed in Arkansas Class Action Against ChartOne

Posted on May 02, 2008
The Arkansas Supreme Court affirmed class action certification in ChartOne, Inc. v. Raglon, No. 07-940 (4/24/08).  ChartOne provides copying services of medical records for medical providers in Arkansas. Access to medical records for legal proceedings is controlled by Ark...

Preliminary Injunction Affirmed Based on Noncompete Agreement but not Trade Secrets

Posted on May 01, 2008
The Arkansas Court of Appeals affirmed a preliminary injunction in Freeman v. Brown Hiller, Inc., No. 07-717 (4/2/08).  Freeman was an insurance agent for BHC. She signed a limited noncompete agreement that prohibited her from soliciting BHC customers for a period of 2 years after her employment ended...

Candy Bouquet Files Arkansas Trademark Infringement Lawsuit

Posted on April 30, 2008
Candy Bouquet has filed a trademark infringement action against one of its former franchisees. Candy Bouquet International, Inc. v. McClendon, No. 08-340 (E.D. Ark., filed 4/ 17/08). According to the complaint, McClendon owned three Candy Boutique franchises...

LaserAim Files Arkansas Patent Infringement Lawsuit

Posted on April 30, 2008
LaserAim has filed a declaratory judgment action in LaserAim Tools, Inc. v. SDA Manufacturing, LLC, No. 08-329 (E.D. Ark., filed 4/9/08). The complaint alleges that LaserAim had developed products that SDA should have disclosed in its application. The lawsuit seeks a declaration that SDA's patent is invalid.

Vestcom Files Declaration of no Patent Infringement in Arkansas

Posted on April 30, 2008
Vestcom has filed a declaratory judgment of no patent infringement in Vestcom International, Inc. v. Information Planning and Management Service, Inc., No. 08-276 (E.D. Ark., filed 4/2/08). Vestcom provides shelf strips to Sears. According to the complaint, IPMS told Sears it holds a patent on the strips...

A Practitioner's Note on Arkansas's No-Citation Rule, Highlighted by Today's Decision in Dodson

Posted on April 10, 2008
Today's per curiam in Dodson v. Norris highlights a textual subtlety of Rule 5-2: the plain text of the rule does not bar citation of unpublished decisions from other jurisdictions. Rule 5-2 of the Supreme Court and Court of Appeals of Arkansas states, in pertinent part (emphasis supplied): Opinions of the court of appeals not designated for publication shall not be published in the Arkansas Reports and shall not be cited, quoted or referred to by any court or in any argument, brief, or other materials presented to any court (except in continuing or related litigation upon an issue such as res judicata, collateral estoppel, or law of the case)...

Arkansas Supreme Court, Having Recently Declined to Abolish its No-Citation Rule, Bars Litigant From Citing Unpublished Opinions

Posted on April 10, 2008
The Arkansas Supreme Court recently decided not to abolish its no-citation rule. The rule is contained in Arkansas Supreme Court Rule 5-2 and bars litigants from citing any unpublished decision of the Arkansas Court of Appeals in a brief filed in the Arkansas appellate courts...

Objector's Failed Intervention Prevents Arkansas Supreme Court Review of State-Court Coupon Settlement

Posted on April 10, 2008
After receiving notice of a pending coupon settlement in a class action against Little-Rock based cellular service provider Alltel, Frank DeJulius attempted to intervene in the action and object to the settlement. He did not, however, opt out of the settlement...

Chief Justice Hannah Dissents From United States Supreme Court's Medtronic Decision in His Despain Concurrence

Posted on April 10, 2008
Chief Justice Jim Hannah's concurrence in Despain v. Bradburn is also a ringing dissent from the United States Supreme Court's holding in Riegel v. Medtronic. Chief Justice Hannah's concurrence is consistent with but, perhaps, more vigorous than Justice Ginsburg's Medtronic dissent, which expressed concern that the majority's decision "cut[s] deeply into a domain historically occupied by state law...

Arkansas Supreme Court Reverses Despain In Wake of Reigel v. Medtronic

Posted on April 10, 2008
The Arkansas Supreme Court reversed itself in light of a recent decision of the United States Supreme Court in Despain v. Bradburn, No. 07-714. The Court held in an earlier decision that "that the Medical Device Amendment (MDA) to the federal Food, Drug, and Cosmetic Act did not preempt a state-law tort claim filed against the manufacturer of a medical device...

Sensient Technologies Wins Temporary Restraining Order for Trademark Infringement

Posted on March 28, 2008
The Eastern District of Missouri granted a temporary restraining order based on trademark infringement in Sensient Technologies Corp. v. SensoryFlavors, Inc., 2008 WL 762092 (E.D. Mo. 3/21/08).  Sensient Technologies is the corporate umbrella that used to be Universal Foods Corporation...

Noncompete Agreements May Need to be Adjusted as Business Lines Expand

Posted on March 21, 2008
The district court of South Dakota denied a preliminary injunction in Universal Underwriters Ins. Co. v. Schmidt, 2008 WL 631197 (D.S.D. 3/6/08).  Schmidt was an employee of Universal selling property, casualty and life insurance products to automobile dealers...

Trademark Infringement Case Dismissed as Exception to First-Filed Rule

Posted on March 20, 2008
The Western District of Missouri dismissed a declaratory action claiming no trademark infringement in Sustainable Community Development, LLC v. EMRO USA, Inc., 2008 WL 495603 (W.D. Mo. 2/20/08).  The parties have an interesting history. SCD filed suit in 2005, which the parties eventually settled...

Court of Appeals Unceremoniously Rejects Two Common Arguments Against Default Judgments

Posted on March 12, 2008
The Court of Appeals affirmed a default judgment against an insurance company in Aegis Insurance Company v. Robertson, No. CA-07-872. The case started out commonly enough: the plaintiff filed suit in Benton County. "After receipt of service, counsel for appellant ...

Follow the Procedures You Write in Your Contract

Posted on March 08, 2008
The Arkansas Court of Appeals affirmed the trial court's decision in Glenn Mechanical, Inc. v. South Arkansas Regional Health Center, Inc., No. 06-1473 (3/5/08).  Glenn obtained a contract to perform dirt work at SARHC. Glenn insisted on writing the contract, which provided that any work changes could only be performed with a written amendment...

Case Dismissed Because Statute of Limitations Had Run

Posted on March 07, 2008
The Arkansas Court of Appeals affirmed dismissal in Bibbs v. Community Bank, No. 07-808 (3/5/08).  The plaintiffs defaulted on a loan to Community Bank. The bank sued for foreclosure in 2003, and the plaintiffs filed for bankruptcy. In 2005, they filed this action claiming the bank's misconduct forced them into bankruptcy...

Order Granting Summary Judgment Against One Defendant Out of Seven Not a Final Order, Court of Appeals Holds

Posted on March 07, 2008
The appellants in Castleberry v. Fohn, No. CA07-1040, a Ouachita County medical malpractice case, fell victim to the final order rule when the Arkansas Court of Appeals dismissed their case. The plaintiff, Donald Castleberry, who was suing on behalf of the estate of Bobby L...

Arkansas Supreme Court Holds Defective Workmanship Not an "Accident" Constitutiing an Occurrence Under a Commercial General Liability Insurance Policy

Posted on March 07, 2008
The Arkansas Supreme Court answered a question certified to it by Judge J. Leon Holmes of the Eastern District of Arkansas, in Essex Insurance Company v. John Holder et al., No 07-803. Tom and Kara Baumgartner contracted with J&H Enterprises to build their new home...

Dardanelle Case Against Russellville Dismissed Because a Joint Resolution is not a Contract

Posted on March 03, 2008
The Arkansas Supreme Court affirmed dismissal in City of Dardanelle v. City of Russellville, No. 07-195 (2/28/08).  This case involves a long-standing dispute about where Russellville can build a sewage pipeline. They originally chose a location near Dardanelle City Park...

An Electronic Filing Pilot Program for the Arkansas Appellate Courts

Posted on February 29, 2008
The Arkansas appellate courts are starting a electronic filing pilot program. According to the standards document, briefs are to be submitted in searchable PDF formate (except for the addendum) and cannot have "live" links to other parts of the pdf or the Internet in them...

Class Certification in Usury Case Brought by Second Mortgagees Against Trusts Affirmed

Posted on February 29, 2008
The Arkansas Supreme Court affirmed Greene County Judge David Burnett's class certification decision in Firstplus Home Loan Owner 1997-1, et al. v. Bryant, No. 07-740. The plaintiffs are consumers who took out promissory notes secured second mortgages on their homes...

Express Scripts May be Short-Lived in Light of Recent Supreme Court Decision

Posted on February 29, 2008
Thanks to Mac Golden for pointing us to Preston v. Ferrer, 552 U.S. __ (2008), which probably invalidates the Eighth Circuit's recent decision, Express Scripts v. Aegon Direct Marketing Services, Inc., (previously posted 2/20/08).  Ferrer is television's Judge Alex; Preston is an attorney who provided professional services to Ferrer...

What is the Procedure For Supplementing a Summary Judgment Response After the Reply is Filed but Before the 14-Day Limit?

Posted on February 28, 2008
The Arkansas Court of Appeals affirmed summary judgment in Neal v. Farris, No. 07-839 (2/27/08). his case concerns a dispute about summary judgment procedure. As we all know, the nonmovant has 21 days to respond, and then the movant has 14 days to file a reply...

eBay Files Arkansas Patent Infringement Lawsuit

Posted on February 27, 2008
eBay filed a patent infringement lawsuit in the Western District of Arkansas. eBay, Inc. v. IDT Corp., No. 08-4015 (filed 2/20/08). According to the Complaint, eBay holds the patent for a long distance telephone communication system. The Complaint alleges IDT is infringing this patent, particularly through its PennyTalk calling cards.

Removing Digital Watermark is Anticircumvention Violation

Posted on February 27, 2008
A pro se plaintiff obtained judgment for copyright infringement and anticircumvention violations in Gregerson v. Vilana Financial, Inc., 2008 WL 451060 (D. Minn. 2/15/08) (previously posted here 9/12/07 and here 1/31/07). Vilana copied two of Gregerson's photographs, and the court had previously granted him summary judgment as to copyright infringement liability...

Insurance Judgment Reversed Because There was no Substantial Evidence to Support the Jury Verdict

Posted on February 21, 2008
The Arkansas Court of Appeals reversed judgment in Farm Bureau Mut. Ins. Co. of Am. v. Nowlin, No. 06-1053 (2/20/08).  Nowlin took ownership of his deceased mother's home and had it insured by Farm Bureau. The home was destroyed by fire in May 2003...

Default Judgment Reversed Because of Procedural Error

Posted on February 21, 2008
The Arkansas Court of Appeals reversed a grant of default judgment in Brooks v. Farmers Bank and Trust Co., No. 07-694 (2/20/08).  Farmers Bank properly served Brooks with the complaint, but he failed to answer. The bank did not move for default judgment, but there was a "hearing on the Bank's complaint" (we're not sure what that is)...

Court Commends Professionalism of Counsel in Trade Secret Dispute

Posted on February 20, 2008
The Southern District of Iowa entered judgment after jury trial in a trade secret misappropriation case. C Plus Northwest, Inc. v. DeGroot, 2008 WL 391271 (S.D. Iowa 2/14/08).  The facts of the case are not particularly exceptional. Mr. Sjogren owned C Plus; defendants were key employees...

Jury Will Determine if Trademark License Creates Franchise Under Arkansas Franchise Practices Act

Posted on February 20, 2008
The Eastern District of Arkansas denied cross motions for summary judgment in Otto Dental Supply, Inc. v. Kerr Corp., 2008 WL 410630 (E.D. Ark. 2/13/08).  For 25 years, Otto Dental was an authorized dealer of Kerr, using Kerr's trademarks to market and sell its goods...

Eighth Circuit Holds That Arbitrability Must be Determined by the Court Unless Contract States Otherwise

Posted on February 20, 2008
The Eighth Circuit affirmed a denial of a motion to dismiss pending arbitration in Express Scripts, Inc. v. Aegon Direct Marketing Services, Inc., No. 07-1971 (2/13/08). This is a long post, but this case has two important points for the validity of arbitration clauses in the Eighth Circuit...

CenterPoint Energy Gets Writ of Mandamus and Writ of Prohibition to Enforce Supreme Court's Order

Posted on February 18, 2008
The Arkansas Supreme Court granted a writ of mandamus and writ of prohibition in CenterPoint Energy, Inc. v. Miller County Circuit Court, No. 07-924 (2/14/08).  In a class action against CenterPoint, the named plaintiffs were an Arkansas plaintiff (Johnson) and a Texas plaintiff (Engledowl)...

El Dorado Broadcasting Wins Water Flow Lawsuit

Posted on February 13, 2008
The Arkansas Court of Appeals affirmed judgment in Bilo v. El Dorado Broadcasting Co., No. 07-507 (2/13/08).  Bilo owns land east of EDB; rainfall typically passed over Bilo's land and traveled south. He built a landfill, which caused rainfall to be diverted to EDB's land...

A Nonsuit Against One Defendant and a Judgment Against the Other is an Appealable Order

Posted on February 08, 2008
The Arkansas Supreme Court clarified its stance on appealable orders when multiple claims against multiple parties are involved in Advanced Environmental Recycling Technologies v. Advanced Control Solutions, Inc., No. 06-1145 (2/7/08).  ACS filed suit against AERT and one of its former employees for trade secret misappropriation, breach of a noncompete agreement, and tortious interference with business...

Timely but Defective Service Preserves a Claim Under the Saving Statute

Posted on February 08, 2008
The Arkansas Court of Appeals affirmed dismissal without prejudice in Clouse v. Tu, No. 07-586 (2/6/08). The opening line of the opinion states: "This case arises at the three-way intersection of a service problem, the statute of limitations, and the terms of the dismissal...

Turns Out There Was no Settlement to Enforce, Even Though the Offer was Accepted

Posted on January 25, 2008
The Arkansas Court of Appeals reversed enforcement of a settlement agreement in Roberts v. Green Bay Packaging, No. 07-60 (1/23/08).  This case was a dispute over use of an easement that involved the Robertses, Mr. Rhodes and Green Bay Packaging...

Plaintiff Wins Property Boundary Dispute, but at What Cost?

Posted on January 24, 2008
The Arkansas Court of Appeals affirmed resolution of a boundary dispute in Boyster v. Shoemake, No. 07-593 (1/23/08).  The parties' lands are separated by a fence, although a survey showed the actual boundary is south of the fence. Shoemake presented evidence from her family and friends that the parties had always treated the fence as the boundary...

As Predicted, Arkansas Trade Secret Case Ends Where it Started in 2004

Posted on January 24, 2008
The long-standing trade secret dispute between R.K. Enterprises and Pro-Comp Management (previously posted 1/10/07) has finally come to an end on the third appeal. True to form, it took two published opinions to end the case. See Pro-Comp Management, Inc...

ESPN Seeks Reduction in Licensing Fees After Eighth Circuit's Fantasy Baseball Decision

Posted on January 23, 2008
Late last year, the Eighth Circuit ruled that use of professional sports statistics in fantasy games is protected by the First Amendment. See C.B.C. Distribution and Marketing, Inc. v. Major League Baseball Advanced Media, L.P., 505 F.3d 818 (8th Cir...

Arkansas Trademark Infringement Lawsuit Filed Over the Phrase "Flexible Staffing"

Posted on January 23, 2008
A declaratory action alleging no trademark infringement was filed yesterday in the Western District of Arkansas. Flexible Staffing Services, Inc. v. Integro Employment Services, Inc., No. 08-5018 (W.D. Ark., filed 1/22/08).  Flexible Staffing Services (FSS) is a nationwide firm providing temporary staffing services...

Woman Must Pay U.S. Bank for Fraudulent Check

Posted on January 23, 2008
The Arkansas Supreme Court affirmed summary judgment in Talbert v. U.S. Bank, N.A., No. 07-497 (1/17/08).  During the summer of 2005, Talbert lent $25,000 to a man she knew as David Smith. In mid-November 2005 Smith sent her a check for $85,000...

Septic Easement Violates Restrictive Covenants

Posted on January 22, 2008
The Arkansas Supreme Court affirmed judgment in Royal Oaks Vista, LLC v. Maddox, No. 07-542 (1/17/08).  The Royal Oaks Vista subdivision was platted in 1972. Among other things, the restrictions prohibited any "noxious trade or activity." In 2004, ROV filed a replat and began constructing a temporary septic easement across one of the lots...

Class Action Can Recover From a Bond Posted on Behalf of Russellville Check Express

Posted on January 21, 2008
The Arkansas Supreme Court affirmed the trial court's reversal of administrative order in Arkansas Board of Collection Agencies v. McGhee, No. 07- 129 (1/17/08).  The case centered upon a class action against Russellville Check Express (RCE) for charging usurious interest...

Trial Court Cannot Reinstate a Case That is Dismissed Because of the Trial Court's Error

Posted on January 17, 2008
The Arkansas Supreme Court affirmed dismissal for want of prosecution in Watson v. Connors, No. 07-208 (1/10/08).  This case was inactive for 2 years, so the trial dismissed the case pursuant to Ark. R. Civ. P. 41(b). Unfortunately, the court failed to notify the parties...

A Mortgagee is not a Landowner, at Least for Arkansas Eminent Domain Law

Posted on January 11, 2008
The Arkansas Supreme Court reversed a grant of attorney's fees in City of Ft. Smith v. Carter, No. 07-220 (1/10/08).  The Hacklers sold a parcel of land to the Carters for $60,000; and the Hacklers held a mortgage for the outstanding debt. The city obtained an order of immediate possession by depositing $14,000...

Service Defective Even Though Plaintiff Used the Address on Defendant's Driver's License

Posted on January 11, 2008
The Arkansas Supreme Court affirmed dismissal based on defective service in Brennan v. Wadlow, No. 06-1406 (1/10/08). Brennan and Wadlow were involved in a car accident. On his driver's license, Wadlow uses the address of his father's business, although this is a separate address from Wadlow's residence...

University of Arkansas has Sovereign Immunity From Copyright Infringement Lawsuit

Posted on January 07, 2008
The Eastern District of Arkansas dismissed a copyright infringement case based on sovereign immunity in InfoMath, Inc. v. University of Arkansas, 2007 WL 4562878 (E.D. Ark. 12/21/07).  In 2000, InfoMath contracted with the University of Arkansas at Little Rock to provide an internet based pre-calculus course...

No Name Steaks Wins Preliminary Injunction Based on Trademark Infringement and Dilution

Posted on January 04, 2008
The District Court of Minnesota granted a preliminary injunction based on trademark infringement and trademark dilution in J&B Wholesale Distributing, Inc. v. Redux Beverages, LLC, 2007 WL 4563457 (D. Minn. 12/20/07).  J&B sells steaks and other meat products under the trademark No Name...

Fitger's Brewery Wins Preliminary Injunction to Protect Trademark

Posted on January 04, 2008
The District Court of Minnesota granted a preliminary injunction based on trademark infringement and false advertising in Fitger's On-The-Lake, LLC v. The Fitger Company, LLC, 2007 WL 4531502 (D. Minn. 12/19/07).  Fitger's has operated a brewery in Minnesota since the 1880's, and it holds a number of trademarks that have now become famous...

Plastic Surgeon Lifts Copyrighted Photos From Competing Surgeon's Website

Posted on January 02, 2008
The District Court of Nebraska denied a motion to dismiss for lack of personal jurisdiction in Denenberg v. Djordjevic, 2007 WL 4525011 (D. Neb. 12/18/07).  Dr. Steven Denenberg is a plastic surgeon in Omaha, Nebraska. Like many in his profession, he posts before/after photographs on his website to promote his work...

Mahco Has Not Abandoned Its Trademark, At Least Not Yet

Posted on January 02, 2008
The Western District of Arkansas denied plaintiff's motion to dismiss the counterclaim in Lewis & Clark Outdoors, Inc. v. Mahco, Inc., 2007 WL 4510364 (W.D. Ark. 12/18/07) (previously posted 5/1/07). Mahco has counterclaimed against Lewis & Clark Outfitters (LCO) for trademark infringement...

Lloyd Sales Company Files Arkansas Trademark Infringement Declaratory Action Against The Game

Posted on December 20, 2007
A trademark infringement dispute involving university merchandise has taken an interesting turn. See Lloyd Sales Co., Inc. v. The Game, LLC, No. 07-1198 (E.D. Ark., filed 12/18/07). The Game sells merchandise of various universities by placing university logos on its own 3-bar logo...

Car is Devalued $7,000 When Thief Drives it For One Hour Without Damages

Posted on December 20, 2007
The Arkansas Court of Appeals affirmed judgment in Bull Motor Company v. Murphy, No. 07-183 (12/19/07). A thief stole a truck from Bull Motor Company (BMC), but the police recovered it an hour later. The truck  had been driven 40 miles, and it had sustained no damage...

Community of Christ Wins Preliminary Injunction for Trademark Infringement of Church Name

Posted on December 17, 2007
The Western District of Missouri granted a preliminary injunction based on trademark infringement in Community of Christ Copyright Corp. v. Miller, 2007 WL 4333192 (W.D. Mo. 12/7/07).  Community of Christ holds federal trademark registrations for "RLDS" and "Reorganized Church of Jesus Christ of Latter Day Saints...

Eighth Circuit Refuses to Enforce Arkansas Noncompete Agreement

Posted on December 17, 2007
The Eighth Circuit affirmed summary judgment, to both parties, in a unique case involving a noncompete agreement. See Guardian Fiberglass, Inc. v. Whit Davis Lumber Co., __F.3d__ (12/12/07). This is a long post because this brief opinion brings out some interesting points regarding noncompete agreements...