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SAC's ONLINE LITIGATION ALERT: 2019-24 (06/17/2019)
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Arbitration

• Zoller & Biegelman vs. UBS Securities, LLC & UBS Financial Services, Inc. ▶
No. 16 C 11277 (N.D. Ill., 6/5/19)

When a party selects among arguments as a matter of strategy, he also waives those arguments he decided not to present.
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• Krevosh vs. Westminster Financial Securities, Inc. ▶
No. 18-01434 (D. Nev., 6/4/19)

*An email from a mediator setting forth the basic terms of a settlement is not a new contract and does not supersede arbitration agreements previously signed by the parties. **A party does not waive arbitration by first filing an answer and counterclaim and then filing a motion to compel arbitration one month later. ***The cost of filing a motion for summary judgment prior to any discovery is a self-inflicted wound and does not meet the requirement of prejudice in a waiver argument, where the motion to compel arbitration is filed within one month following the filing of the complaint.
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Business & Employment

• Janvey vs. GMAG, L.L.C ▶
No. 17-11526 (5th Cir., 5/24/19)

Court certified question to the Texas Supreme Court whether a TUFTA good faith defense is available to a transferee on inquiry notice of fraud, who failed to conduct an investigation, but later showed that an investigation would have been futile.
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• Harriman vs. Assoc. Industries, Ins. Co., Inc. ▶
No. 2:18-cv-2750 (D. S.C., 4/7/19)

Where the underlying complaint creates the possibility of coverage under an insurance policy, the insurer must defend.
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• Bordeaux Capital Inc. vs. U.S. Methanol Corp. ▶
No. 2:18-cv-01262 (S.D. W.Va., 5/10/19)

Specificity requirements of Rule 9(b) are relaxed in fraudulent omission cases and when the facts underlying a fraud claim are exclusively within the knowledge or control of Defendant.
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Class Actions

• Walfish vs. Northwestern Mutual Life Insurance Company, et al. ▶
No. 2:16-4981 (D.N.J., 5/6/19)

A “special agent” of a “general agent” selling insurance pursuant to an express independent contractor agreement satisfies New Jersey’s “ABC” test of independent contractor status, both by contract and in fact, so as to remove him from employee status under the New Jersey Wage Payment Law.
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• Contant vs. Bank of America Corp. ▶
No. 17-cv-3139 (S.D.N.Y., 5/17/19)

Exercise of personal jurisdiction over foreign defendants must comport with constitutional due process principles. To base personal jurisdiction on “conspiracy jurisdiction,” plaintiffs must show the existence of a conspiracy, defendant’s participation in the conspiracy, a co-conspirator’s act in furtherance of the conspiracy with sufficient contacts with the forum state, and that defendants’ conspiracy-related conduct is such that defendants could reasonably anticipate being sued in a foreign court.
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Regulatory

• SEC vs. Alpine Securities Corp. ▶
No. 18-2045-cv (2nd Cir., 5/28/19)

The first-filed rule may be applied only where the federal court enjoins prosecution of a later-filed action that constitutes a "duplicative proceeding."
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Securities Customers

• Sutherlin vs. Wells Fargo Bank N.A. ▶
No. 18-11458 (11th Cir., 4/3/19)

Plaintiffs’ efforts to obtain OFAC blocked assets rejected because of prior issuance of writ of garnishment.
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• Yates vs. Casto ▶
No. A-17-1053 (Neb. App., 2/12/19)

Plaintiffs, who enjoyed positive returns in their conservative investments, but who sought damages claiming they should have had more exposure to equities which would have yielded higher returns, cannot overcome the “conservative” investment objectives they communicated to their advisor.
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BOARD OF CONTRIBUTING LEGAL EDITORS

Richard P. Ryder
Editor-in-Chief, SLC

Senior Contributing Editors:          

Jack D. Ballard
Ballard & Littlefield, LLP
Houston, TX


Christopher G. Lazarini
Bass Berry & Sims PLC
Memphis, TN

    Paul J. Dubow
Arbitrator • Mediator
San Francisco, CA


Jeremy A. Root
Stinson Leonard Street LLP
Jefferson City, MO
    Jill I. Gross
Elisabeth Haub School of Law
Pace University
White Plains, NY

Ben Suter
Keesal Young & Logan
San Francisco, CA



Contributing Editors:

David C. Franceski, Jr.
Stradley Ronon
Stevens & Young LLP
Philadelphia, PA

Noah D. Sorkin
Capital Forensics, Inc.
New York, NY
    James L. Komie
Howard & Howard
Chicago, IL


Burton W. Wiand
Wiand Guerra King PL
Tampa, FL



NOTICE: The publisher accepts full responsibility for the summaries presented in this publication and for any views expressed therein. Our Contributing Editors and any law firm or organization with which the Contributing Editors may be affiliated bear no responsibility for the contents of this publication. Moreover, by summarizing a particular decision, a Contributing Editor does not necessarily endorse the holding. To the extent comments or opinions are expressed herein by any editor, such comments or opinions are not necessarily the views of other Contributing Editors or the law firm or organization with which they may be affiliated. Editorial comments and analysis are designed to stimulate thought and convey information of value; they are not intended as, nor do they constitute, legal advice. The decisions summarized herein should not be viewed as authoritative precedent without proper citechecking and adherence to local court rules.
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