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Litigation

Northwest Business Litigation Blog

Resource for in-house counsel, business executives, human resource managers and others who monitor litigation and legal issues affecting Northwest USA businesses.
By Ater Wynne LLP

Post Frequency: 2.4/day

Last Entry: April 11, 2013 at 12:56:09

New Portland sick leave ordinance will go into effect January 1, 2014

Posted on April 11, 2013
Following in the footsteps of Seattle, San Francisco, and others, the City of Portland enacted a sick leave ordinance on March 13, 2013, applicable to employees who work at least 240 hours per calendar year within the City limits. Employees...

US Supreme Court: Class certification inquiry may involve a ruling on the merits

Posted on April 04, 2013
Courts considering motions to certify a class action can't shy away from considering the merits, if doing so is necessary to determine whether the class meets the requirements of FRCP 23(a). That was the conclusion reached last week by the...

Employers must exercise caution when withdrawing offers of employment

Posted on April 03, 2013
The Oregon Supreme Court in Cocchiara v. Lithia Motors, Inc., (discussed in our earlier blog post here) opened up the possibility of a promissory estoppel or fraud claim against an employer who withdraws an offer of at-will employment. The Supreme...

Retracting an at-will job offer puts employer at risk for a tort claim

Posted on March 20, 2013
The Oregon Supreme Court this month held that a person offered at-will employment may be able to state a claim for promissory estoppel and fraud when the prospective employer retracts the offer. In Cocchiara v. Lithia Motors, Inc., according to...

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Securities fraud: Proof of materiality not required to obtain class certification

Posted on March 04, 2013
Last week the U.S. Supreme Court held that a securities fraud plaintiff need not prove the materiality of defendant's alleged misrepresentations or omissions in order to obtain class certification. While materiality is a necessary element of a securities fraud claim,...

LLC member's breach of fiduciary duty results in 600,000-1 ratio of punitive to compensatory damages

Posted on December 31, 2012
Last week the Oregon Court of Appeals again addressed the appropriate ratio of punitive to compensatory damages when compensatory damages are modest. One week after affirming an award of punitive damages that was 200 times compensatory damages in Lithia Medford...

Oregon Court of Appeals affirms 200-1 ratio of puntive damages to compensatory damages

Posted on December 27, 2012
The Oregon Court of Appeals last week affirmed a jury award of $100,000 in punitive damages in a case where compensatory damages were $500. The Court applied the standards set forth by the Oregon Supreme Court last year in Hamlin...

Ater Wynne vindicates trademark owner against prior user of mark

Posted on December 06, 2012
A federal judge in Illinois recently ruled that a Chicago company's long-term use of the term "vault" to describe its product did not defeat an Oregon company's use of the term as a registered trademark. Edsal Manufactoring Company, Inc., an...

US Supreme Court: Federal Arbitration Act bars state court from ruling on contract's validity

Posted on November 29, 2012
This week the U.S. Supreme Court again affirmed the broad scope of the Federal Arbitration Act, holding that when a contract includes a valid arbitration provision, an arbitrator, and not a court, should decide in the first instance whether the...

(Mostly) Business as Usual after Voter Approval of Washington's Marijuana Initiative

Posted on November 14, 2012
On election day, voters in Washington decriminalized the production, processing, sale, and possession of marijuana under state law by approving Initiative Measure No. 502 (I-502). Effective December 6, 2012, Washington law will no longer prohibit the possession of specified amounts...

Ninth Circuit enforces sham affidavit rule, rejecting explanation for recovered memory

Posted on October 02, 2012
Even famed test pilot Chuck Yeager can't avoid the sham affidavit rule. Last month the Ninth Circuit affirmed a district court judge's decision to disregard a declaration that Yeager submitted in opposition to a summary judgment motion, on the ground...

Oregon Court of Appeals dismisses age discrimination suit for failure to follow employer's ADR policy

Posted on September 20, 2012
Last week, the Oregon Court of Appeals upheld the dismissal of an employee?s age discrimination claim under state law for failure to comply with the employer?s grievance and arbitration procedure. In Hatkoff v. Portland Adventist Medical Center, the employee had...

Employer confidentiality policies may be unlawful

Posted on September 19, 2012
Earlier this year, the NLRB Office of General Counsel issued OM 12-59, its third memo on employer social media policies, addressing whether such policies violate an employee?s right under Section 7 of the National Labor Relations Act to engage in...

Ninth Circuit overrules longstanding precedent, allows appeal of dismissed claims not realleged in an amended complaint

Posted on September 17, 2012
Buried in a lengthy Ninth Circuit opinion about a controversial Arizona sheriff is a procedural nugget of interest to federal court litigants: Failure to reallege a dismissed claim in an amended complaint no longer constitutes a waiver of the right...

Occasional handyman is an employee for Oregon unemployment tax purposes

Posted on August 18, 2012
Last week, the Oregon Court of Appeals held that a handyman was an employee, and not an independent contractor, for unemployment tax purposes. Under Oregon law, an independent contractor must be both "free from direction and control over the means...

Oregon Court of Appeals derails MERS non-judicial foreclosures

Posted on July 23, 2012
Last week the Oregon Court of Appeals weighed in on an issue being litigated around the country by homeowners who have defaulted on their mortgages: whether a nonjudicial foreclosure can occur where there has been no recorded assignment to the...

"Nerve center" test for subject matter jurisdiction doesn't impose a heightened pleading standard

Posted on June 29, 2012
When a plaintiff invokes the federal courts' diversity jurisdiction, it must plead both the state of incorporation and the principal place of business of corporate parties. In 2010, the U.S. Supreme Court in Hertz Corp. v. Friend adopted the "nerve...

Oregon Court of Appeals: Plaintiff shareholder may have a direct action against a fellow shareholder, even if their shares are diluted equally

Posted on June 27, 2012
In Kollman v. Cell Tech International, Inc., decided last month by the Oregon Court of Appeals, one of the issues before the court was whether the plaintiff shareholder's claim against another shareholder for breach of fiduciary duty was derivative or...

Supreme Court agrees with Ninth Circuit that drug company representatives are ?salesmen?

Posted on June 26, 2012
Last week the Supreme Court affirmed a decision of the Ninth Circuit holding that pharmaceutical sales representatives are not entitled to overtime under the Fair Labor Standards Act because they are covered by the FLSA's "outside sales" exemption. In Christopher...

Oregon Supreme Court: Constitution provides no absolute right to view trial evidence

Posted on June 16, 2012
An Oregon Supreme Court opinion that received signficant media attention this week has implications for the litigation of trade secret cases in the state. The opinion focused on the Open Courts provison of the Oregon Constitution, and the immediate issue...

Oregon Supreme Court on apparent agency liability for personal injuries

Posted on May 11, 2012
The Oregon Supreme Court last month held that an LLC that leased office space to a physician could not be held liable on an apparent agency theory for physical injuries suffered by the physician's patient. In Eads v. Borman, the...

Ninth Circuit won't criminalize violations of computer use policies

Posted on May 03, 2012
The federal Computer Fraud and Abuse Act, 18 USC sec. 1030, imposes criminal liability for unauthorized access to a computer, or for exceeding authorized access. An en banc panel of the Ninth Circuit last month narrowly interpreted the CFAA, holding....

Oregon Court of Appeals affirms judgment against title company in real estate sale gone wrong

Posted on April 24, 2012
A title company is liable for negligence in a real estate transaction in which plaintiff thought he had purchased a lot that -- it was later discovered -- had already been sold to another party. Last week the Oregon Court...

D.C. Circuit enjoins NLRB's rule requiring notice of employee union rights

Posted on April 18, 2012
On April 17, 2012, the D.C. Circuit issued an injunction blocking the National Labor Relation Board's controversial rule that would have required most private sector employers to post a notice of employee rights under the National Labor Relations Act...

Washington expands statutory limitation on contractual indemnity obligations

Posted on April 16, 2012
Washington will alter the limitation on indemnity obligations in the construction arena when amendments to RCW 4.24.115 become effective on June 7, 2012. The current version of the law limits the contractual indemnity obligations a party can incur related to...

Ater Wynne scores victory in Idaho Supreme Court employment case

Posted on April 05, 2012
Last month the Idaho Supreme Court addressed the rights of at-will employees, affirming summary judgment for the employer on contract and tort claims asserted by a laid-off employee. Ater Wynne attorney Lori Irish Bauman briefed and argued the case on...

Failure to allege right to fees in a pleading or motion sinks attorney fee award

Posted on April 04, 2012
The Oregon Court of Appeals last week drew a hard line in enforcing the procedures for recovering attorney fees. In Anderson v. Dry Cleaning To-Your-Door, Inc., the Court reversed a trial court award of more than $100,000 in attorney fees...

Exclusive remedy of Oregon's workers compensation law won't protect member of LLC

Posted on April 02, 2012
The Oregon Court of Appeals recently held that a member of a limited liability company is not protected from suit by the exclusive remedy provision of Oregon?s workers? compensation law, Oregon Revised Statutes 656.018. In Cortez v. Nacco Materials Handling...

Oregon Supreme Court: No remedy for stolen medical records absent actual, present injury

Posted on March 22, 2012
The lack of an actual, present injury prevents recovery by plaintiffs whose electronic patient records were stolen from the car of an employee of Providence Health System. So held the Oregon Supreme Court last month in Paul v. Providence Health...

Oregon Court of Appeals draws a line between independent contractors and employees

Posted on March 02, 2012
This week, the Oregon Court of Appeals, in Avanti Press, Inc. v. Emp't Dept. Tax, provided welcome relief to companies that engage independent contractors. In a world where courts and state and federal agencies have increasingly pursued companies for "misclassification"...

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