Third Circuit Holds Consumers Had Standing to Sue Retailers for Use of Website “Session Replay” Technology Which Secretly Intercepted Personal Payment Information

Eight plaintiffs brought a putative class action against Bass Pro Shops and Cabela’s, alleging that the retailers secretly embedded “Session Replay Code” on their websites that recorded users’ online interactions, including mouse movements, clicks, keystrokes, and text entries, without consent. The plaintiffs claimed that this data collection violated federal and state privacy laws. Two plaintiffs, Heather Cornell and Peter Montecalvo, made purchases on the websites and entered personal identifying and payment information, while the remaining six plaintiffs only browsed products without submitting sensitive data. The district court dismissed all claims for lack of Article III standing. On appeal, the Third Circuit reversed in part. The court held that Cornell and Montecalvo sufficiently alleged a concrete injury because the interception of their credit or debit card information closely resembled the common-law privacy tort of intrusion upon seclusion. The court reasoned that individuals have a reasonable expectation that sensitive financial information will remain private, and surreptitious electronic interception of that information constitutes a highly offensive invasion of privacy. However, the court affirmed the ruling that the six plaintiffs who merely browsed products without entering personal information failed to allege a concrete injury.

In re BPS Direct, LLC; Cabela's, LLC Wiretapping Litig., No. 23-3235, 2026 WL 1280969 (3d Cir. May 11, 2026).

PROFESSIONAL LIABILITY / E & O

Texas Supreme Court Rules Cashing Conditional Refund Check Barred Further Recovery in Legal Malpractice Lawsuit

Sixth Circuit Holds Unpaid Leave for Guide-Dog Training Was a Reasonable ADA Accommodation for Disabled Teacher

The plaintiff in this Americans with Disabilities Act lawsuit, Andrea Tumbleson, was a long-serving public school art teacher with a progressive disability causing severe hearing and vision loss. As her condition worsened, Tumbleson applied for a guide dog and was accepted into a three-week training program. She requested to use thirteen days of accrued paid sick leave to attend the training, asserting that it was medically necessary and part of her treatment plan. The school district denied the request on the ground that guide-dog training did not fall within the district’s sick-leave policy for “personal illness,” but granted her unpaid leave as an accommodation under the ADA. After completing the training and receiving her guide dog, Tumbleson sued the school district for disability discrimination. The Sixth Circuit affirmed the district court’s grant of summary judgment to the district. The court reasoned that the ADA requires only a reasonable accommodation, not the employee’s preferred accommodation. Here, the school’s grant of unpaid leave was reasonable because it allowed Tumbleson to complete the training and perform her job. While the unpaid leave caused Tumbleson financial hardship, these financial difficulties were not relevant to the reasonableness analysis because they arose outside the work environment.

Tumbleson v. Lakota Loc. Sch. Dist., No. 25-3548, 2026 WL 1328618 (6th Cir. May 13, 2026).

Sixth Circuit Holds Out-of-State Debt Collector Subject to Michigan Jurisdiction After Targeting Michigan Wages Through Garnishment

In this case, the Sixth Circuit addressed whether a Michigan federal court could exercise personal jurisdiction over an Oklahoma debt-collection law firm. Plaintiff Alexander Ross purchased a vehicle in Oklahoma with his former wife and moved to Michigan after the divorce. After the loan went into default, the creditor retained defendant Robinson, Hoover, & Fudge (RHF) to sue both borrowers in Oklahoma state court. After failing to personally serve Ross despite evidence that he had left the state, RHF obtained a default judgment against Ross. RHF later learned that Ross lived and worked in Michigan and initiated garnishment proceedings, ultimately causing Ross’s employer to withhold wages. The district court dismissed for lack of personal jurisdiction. The Sixth Circuit reversed, finding that RHF purposefully directed its conduct toward the forum state. RHF knew Ross resided in Michigan, knew his wages were earned there, and intentionally initiated garnishment that predictably caused economic injury in Michigan. Jurisdiction was also reasonable because Michigan has a strong interest in protecting residents from unlawful out-of-state collection practices. The court also held Michigan’s long-arm statute was satisfied because RHF caused tort-like economic consequences in Michigan.

Ross v. Robinson, Hoover & Fudge, PLLC, No. 25-1802, 2026 WL 1091235 (6th Cir. Apr. 22, 2026).

EPL / LABOR & EMPLOYMENT

D.C. Circuit Finds Employee’s Public Criticism of Employer Unprotected Where Testimony Failed to Link Remarks to Labor Dispute

Colorado High Court Rejects Effort to Expand Insurer Liability to Car Rental Companies Selling Supplemental Insurance

The Supreme Court of Colorado addressed whether a car rental company can be deemed an insurer of customers who purchase supplemental insurance through their rental agreements. In 2020, a Hertz customer purchased supplemental insurance with uninsured/underinsured motorist coverage. The next day, two passengers were injured in a hit-and-run accident while riding in the rental car. The passengers’ claims were covered under a policy issued by ACE American Insurance Company (Chubb), under which Chubb was the insurer, Hertz was the named insured, and the passengers were additional insureds. Claims were investigated and partially paid by Chubb’s claims administrator. Dissatisfied with payment amounts, the plaintiffs sued Hertz for breach of contract, bad faith, and unreasonable delay or denial of benefits. The trial court dismissed the claims on the basis that Hertz was not an insurer, but the appellate court reversed. The Supreme Court reinstated the dismissal. The court explained that legislative amendments to Title 10 of the Colorado Revised Statutes expressly distinguished car rental companies from insurers. The court also found that Hertz could not be treated as a common-law de facto insurer because, while Hertz had some involvement in the review of claims, its primary business was car rentals.

Hertz Corp. v. Babayev, 2026 CO 26 (Apr. 27, 2026).

Wisconsin Supreme Court Upholds COVID-19 Immunity Statute, Finds No Jury Trial Right Where Claims Are Eliminated

The case concerns a constitutional challenge to Wisconsin Statute § 895.4801, which was enacted during the COVID-19 pandemic to provide broad civil immunity to health care providers for acts or omissions occurring within a defined emergency period. Savannah Wren, a high-risk pregnancy patient, received treatment from Columbia St. Mary’s Hospital and later delivered a stillborn child. She filed a medical malpractice lawsuit. The trial court dismissed the case based on statutory immunity, but the Wisconsin Court of Appeals reversed, holding the statute was facially unconstitutional for violating the state constitutional right to a jury trial. On review, the Wisconsin Supreme Court held that the statute does not violate the right to a jury trial. The court reasoned that Article XIV, Section 13 of the Wisconsin Constitution allows the legislature to alter or suspend common law causes of action. Because § 895.4801 lawfully eliminated certain claims during the pandemic, no cause of action existed. Without any underlying cause of action, there was no right to a jury trial.

Wren v. Columbia St. Mary's Hosp. Milwaukee, Inc., 2026 WI 11 (April 10, 2026).

FINANCIAL INSTITUTIONS 

Fourth Circuit Holds Mortgage Servicer Statements During Bankruptcy Stay Were Informational, Not Violations of the FDCPA

Eleventh Circuit Revives Title VII Claims, Finds Amended Complaint Relates Back to Original Filing

Plaintiff Michael Smith sued his employer, Pepsi, after he was terminated shortly after reporting a racially hostile workplace incident. Smith exhausted his administrative remedies by filing a charge with the EEOC and received a right-to-sue letter. Proceeding pro se, he filed suit and ultimately submitted a fifth amended complaint alleging Title VII race discrimination and retaliation. The district court dismissed the fifth amended complaint, holding that it was untimely because it did not relate back to the original complaint filed within the 90-day limitations period. The Eleventh Circuit reversed. The court held that the fifth amended complaint related back to the original complaint because both arose from the same underlying incident and facts. The court rejected Pepsi’s argument that the fifth amended complaint did not relate back because Smith’s original complaint did not raise a retaliation claim, explaining that the relevant issue was whether the claims in the amended complaint arose out of different facts, not whether the same cause of action was asserted. The court also held sua sponte that the district court had applied the wrong standard by requiring Smith to establish a prima facie case rather than the more lenient standard required to state a plausible claim.

Smith v. Pepsi Bottling Group, et al., No. 24-11597, 2026 WL 937070 (11th Cir. Apr. 7, 2026).

Supreme Court Rejects Contributory Liability for ISP’s Failure to Terminate Users

In this case, the Supreme Court addressed whether an internet service provider (ISP) may be held liable for “materially contributing” to copyright infringement because the ISP did not terminate access to accounts which it knew people were using for copyright infringement. Cox Communications (Cox) is an ISP with approximately six million subscribers. After using software to identify illegal uploads and downloads of copyrighted material and trace the activity to particular ISP addresses, Sony Music sent Cox over 160,000 notices identifying IP addresses of Cox subscribers associated with copyright infringement. Although Cox contractually prohibits subscribers from using their connection to infringe copyright, Cox did not terminate internet service to the accounts. Sony sued Cox for copyright infringement, advancing a contributory liability theory. The Fourth Circuit affirmed the jury’s verdict in favor of Sony. The Supreme Court reversed, holding that because Cox neither induced users’ infringement nor provided a service tailored to infringement, Cox was not contributorily liable. The court explained that under its prior precedent, mere knowledge that a service will be used for infringement is insufficient to establish intent, and Cox had simply provided internet access, which has many uses other than copyright infringement.

Cox Commc'ns, Inc. v. Sony Music Ent., No. 24-171, 2026 WL 815823 (U.S. Mar. 25, 2026).

ERISA / FIDUCIARY 

Sixth Circuit Revives ERISA Claims, Holds “Actuarial Equivalent” Requires Reasonable, Current Assumptions

Retired employees sued their employers under the Employee Retirement Income Security Act, alleging that their pension plans used outdated mortality tables to calculate joint and survivor annuity (JSA) benefits, resulting in unlawfully reduced payments. The district courts dismissed the claims, holding that ERISA does not require specific actuarial assumptions. The appellate court reversed. The court focused on the interpretation of 29 U.S.C. § 1055(d), which requires that qualified joint and survivor annuities (QJSAs) be the “actuarial equivalent” of single life annuities (SLAs). The court held that actuarial equivalence requires benefits to have equal present value based on reasonable and accurate assumptions, including up-to-date mortality data. The court relied on the historical usage of the term “actuarial equivalent” before ERISA’s passage. The court rejected the defendants’ argument that ERISA imposes no limits on actuarial assumptions, explaining that such a reading would render the statutory requirement meaningless and permit arbitrary or outdated calculations. Instead, while it allows actuaries some professional discretion, the statute inherently requires reasonable assumptions. Here, because the plaintiffs plausibly alleged the defendants relied on decades-old mortality data that understated life expectancy and reduced benefits, they sufficiently pled claims for ERISA violations and breach of fiduciary duty.

Reichert v. Kellogg Co., No. 24-1442, 2026 WL 734673 (6th Cir. Mar. 16, 2026).

FINANCIAL INSTITUTIONS

Fourth Circuit Dismisses SCRA Claims for Lack of Standing, Finds Injuries Not Traceable to State Officials

The Servicemembers Civil Relief Act (SCRA) provides for the temporary suspension of proceedings which might adversely affect service members while they are deployed, using various procedural protections to ensure that deployed service members are not surprised by adverse legal or financial consequences at home. The service member plaintiffs’ bank accounts were frozen after state court clerks issued writs of garnishment enforcing dubious out-of-state judgments without complying with SCRA’s procedural protections. The plaintiffs sued the governor of Maryland and justices of the Maryland Supreme Court, arguing that the state officials failed to ensure Maryland’s procedures complied with the SCRA. The Fourth Circuit held that the plaintiffs lacked standing because their injuries were not fairly traceable to the actions or omissions of the governor or justices. Rather, the harm resulted from the independent actions of court clerks. The justices’ failure to adopt rules mirroring the SCRA did not coerce or predictably cause the clerks’ noncompliance, since clerks were already bound by federal law. Similarly, the governor’s general executive authority did not connect him to judicial enforcement actions. One judge dissented, arguing that the plaintiffs had standing because justices’ rules have a predictable and determinate effect on clerks’ actions.

Rouse v. Fader, No. 25-1004, 2026 WL 806546 (4th Cir. Mar. 24, 2026).

Wisconsin Supreme Court Holds Defendant’s Offer of Individual Relief to Named Plaintiff Can Bar Class Action for Damages under Wisconsin Consumer Act

Plaintiff Heather Gudex received a debt collection letter from defendant Franklin Collection Service that she claimed falsely implied she could be sued, in violation of the Wisconsin Consumer Act. When Gudex sent Franklin the statutory notice and demand required before bringing a class action, Franklin offered Gudex full individual relief. Gudex rejected the offer and filed a class action lawsuit. Franklin argued that the lawsuit was barred under Wis. Stat. § 426.110(4), which provides that no action for damages may be maintained “if an appropriate remedy…is given, or agreed to be given within a reasonable time, to such party within 30 days after receipt of such notice.” The Wisconsin Supreme Court agreed, holding that a class action for damages cannot be maintained if the defendant provides or agrees to provide an appropriate remedy to the party who sent the statutory notice within 30 days. Analyzing the statutory language and structure of § 426.110(4), the court concluded that the phrase “such party” refers to the individual who send the notice, not the entire class. One justice disagreed, arguing that allowing a defendant to avoid a class action by “picking off” the representative plaintiff defeats the WCA’s class action mechanism.

Gudex v. Franklin Collection Serv., Inc., 2026 WI 6 (March 4, 2026).

EPL / LABOR & EMPLOYMENT 

Employers Cannot Shorten Federal Discrimination Filing Deadlines by Contract, Fourth Circuit Holds

PROFESSIONAL LIABILITY / E & O

Washington Supreme Court Upholds Use of “Exercise of Judgment” Jury Instruction in Medical Malpractice Case

Sixth Circuit Holds EFAA Bars Arbitration of Entire Lawsuit, Not Just Sexual Harassment Claims

ERISA / FIDUCIARY 

Second Circuit Eliminates Employer’s Withdrawal Liability After Interpreting ERISA’s “Unfunded Vested Benefits” Provision

COVERAGE / BAD FAITH

Ohio Supreme Court Requires In Camera Review Before Forcing Insurer to Produce Allegedly Privileged Materials in Bad Faith Case

Eleventh Circuit Revives Hostile Work Environment Claim in Race Discrimination Case

FINANCIAL INSTITUTIONS

Eighth Circuit Affirms Summary Judgment for Mortgage Servicer in FCRA Suit, Holding Minimal Investigation Sufficient Based on Undetailed Dispute Letters

PROFESSIONAL LIABILITY / E & O

Georgia Appellate Court Reverses Dismissal of Medical Malpractice Claim, Emphasizing Lenient Standard for Expert Affidavits at Pleading Stage

Third Circuit Holds Pennsylvania Law Restricts Employer Use of Criminal History Even When Applicant Self-Discloses Conviction

PROFESSIONAL LIABILITY / E & O

New Jersey Supreme Court Adopts Restatement Standard for Attorney Duties to Non-Clients in Legal Malpractice Claims

ERISA / FIDUCIARY 

Sixth Circuit Holds Anthem’s Denial of Residential Mental Health Treatment Procedurally Arbitrary Under ERISA

Connecticut Supreme Court Holds that Insured Suffers Immediate Legal Injury When Insurer Prematurely Exercises Subrogation Rights

EPL / LABOR & EMPLOYMENT

Fourth Circuit Reverses Dismissal of Discrimination Lawsuit, Holding Trial Court Improperly Required Perfect “One-to-One” Match Between Comparators

PROFESSIONAL LIABILITY / E & O

New York Appellate Court Revives Medical Malpractice Claim, Holding Plaintiff’s Expert Opinion Was Not Conclusory and Adequately Countered Defendant’s Expert Opinion

Eleventh Circuit Adopts Effective Vindication Doctrine, Affirming Refusal to Enforce Arbitration Clause Barring Plan-Wide Relief in ERISA Case

Participants in an employee stock ownership plan brought a putative class action lawsuit against the plan administrator, fiduciaries, and trustee alleging that the defendants unlawfully caused the plan to be terminated and its plan shares sold for less than fair market value, in violation of the Employee Retirement Income Security Act (ERISA). The defendants moved to compel arbitration, relying on an arbitration clause which mandated individual arbitration, barred any class, group, or representative claims, and prohibited monetary relief to anyone other than the individual claimant. The district court denied the motion. The Eleventh Circuit affirmed, joining several other circuits in adopting the effective vindication doctrine, which invalidates arbitration provisions that prospectively waive a party’s right to pursue statutory remedies. Here, the arbitration provision was unenforceable because ERISA provides a statutory right to seek plan-wide relief. The court rejected the defendants’ argument that it should not apply the effective vindication doctrine because it was “judge-made and rooted in Supreme Court dicta.” While the Supreme Court has not invalidated any arbitration provisions under the doctrine, it had repeatedly acknowledged the doctrine’s existence, and “judge-made” federal common law is often necessary to “fill in the gaps” in federal legislation.

Williams v. Shapiro, No. 24-11192, 2025 WL 3625999 (11th Cir. Dec. 15, 2025).

FINANCIAL INSTITUTIONS

Seventh Circuit Reverses and Remands FDCPA Lawsuit for Further Consideration of Whether Mortgage Loan Servicer Qualified as Assignee Under Illinois Law

Plaintiff Ramona Milam took out a mortgage loan which was serviced by defendant Selene Finance. When Milam missed payments, Selene sent her a letter threatening acceleration and foreclosure if she did not cure the default within 35 days. However, federal regulations would have prevented Selene from acting on this deadline. Milam sued Selene, alleging the misleading letter was an abusive debt collection practice which violated the Fair Debt Collection Practices Act. The district court dismissed the complaint, holding that Selene was the lender’s assignee and thus entitled under the original mortgage to notice and an opportunity to cure before being sued. The Seventh Circuit reversed, holding that Milam’s complaint did not resolve whether Selene was an assignee. Under Illinois law, an assignment occurs where there is a transfer of “some identifiable interest from the assignor to the assignee.” However, Illinois also recognizes the concept of delegation, which “involves the appointment of another to perform one’s duties” without alienating one’s rights. Milam’s complaint made clear that the lender authorized Selene to act on its behalf, but this authorization could indicate that the lender had simply delegated the performance of contractual duties without assigning its rights.

Milam v. Selene Fin., LP, No. 25-1208, 2025 WL 3705698 (7th Cir. Dec. 22, 2025).

EPL / LABOR & EMPLOYMENT

Sixth Circuit Upholds Dismissal of Restaurant Employee’s Americans with Disabilities Act Lawsuit

Plaintiff Tawna Bowles was hired as a “cashier/service-team member” at Chicken Salad Chick, a fast casual restaurant. Bowles, who suffers from arthritis in her knees, requested that she be able to sit for five minutes after every ten minutes of standing to accommodate her disability. The restaurant denied the request, and Bowles sued, alleging the defendant discriminated against her by failing to make a reasonable accommodation for her disability. The Sixth Circuit upheld the dismissal of the lawsuit at summary judgment, holding that Bowles failed to meet her initial burden of showing that her proposed accommodation was objectively reasonable. Cashier/service-team members were responsible for a wide range of tasks requiring frequent multitasking, including taking customer orders, stocking drink stations, delivering items to customers, and maintaining the guest areas and bathrooms. If Bowles were permitted to continually sit in one location for five out of every fifteen minutes, her job would be isolated to manning the cash register for a third of her shift, leaving her unable to complete numerous duties which could arise at any time. This accommodation would not be reasonable because it would fundamentally alter the position and require her coworkers to perform her job duties for her.

Bowles v. SSRG II, LLC, No. 25-5329, 2025 WL 3653906 (6th Cir. Dec. 17, 2025).

North Carolina Supreme Court Reinstates Summary Judgment in Negligent Retention Case, Holding Lawsuit Barred by Medical Malpractice Statute of Repose

In this case, the North Carolina Supreme Court held that a negligent retention claim against a corporate medical practice qualified as a “medical malpractice action” and was therefore time barred under the statute of repose applicable to medical malpractice claims. The plaintiffs alleged that defendant Raleigh Orthopaedic Clinic negligently retained the defendant surgeon despite numerous reports of his dangerous surgical practices. State law defines a medical malpractice action as a civil action “arising out of the furnishing or failure to furnish professional services in the performance of medical, dental, or other health care by a health care provider.” “Health care provider” is defined to include “any other person who is legally responsible for” the negligence of a medical professional. The court held that the clinic, as a corporate medical entity, qualified as a “health care provider” because it was legally responsible for the surgeon’s negligence. The court rejected the plaintiff’s argument that the clinic did not qualify as a medical provider because it was a non-human entity, relying on precedent interpreting the term “person” to include corporate bodies in the absence of clear legislative intent to the contrary.

Cottle v. Mankin, No. 173PA24, 2025 WL 3559050 (N.C. Dec. 12, 2025).

EPL / LABOR & EMPLOYMENT

Eleventh Circuit Rejects Formulaic Application of McDonnell-Douglas Burden-Shifting Method in Retaliatory Discharge Case

In this case, the Eleventh Circuit highlighted the widespread confusion which has resulted from the frequently utilized McDonnell Douglas burden shifting framework in employment discrimination cases. Under this framework, if a plaintiff establishes a prima facie case, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for its employment action. If the employer does so, the plaintiff can rebut the employer’s proffered reason with evidence of pretext. In the Eleventh Circuit’s view, McDonnell Douglas has inappropriately been construed as a requirement rather than an optional method for proving discrimination or retaliation, leading to dismissals despite the existence of significant evidence of unlawful intent. The plaintiff here alleged that he was unlawfully terminated in retaliation for filing a racial harassment complaint. The trial court dismissed the case at summary judgment, finding the plaintiff had failed to show pretext. The Eleventh Circuit reversed and held as a matter of first impression that summary judgment should not be granted based on a failure to show pretext unless the plaintiff has also failed to put forward enough evidence for the jury to find for the plaintiff on the ultimate question of discrimination or retaliation.

Ismael v. Roundtree, No. 25-10604, 2025 WL 3492930 (11th Cir. Dec. 5, 2025).

PROFESSIONAL LIABILITY / E & O

Attorneys Cannot Rely on Tennessee Public Participation Act to Defend Against Legal Malpractice Suit, Tennessee Supreme Court Holds

In this case, the Tennessee Supreme Court addressed a creative defense to legal malpractice based on the Tennessee Public Participation Act (TPPA), Tennessee’s version of an anti-SLAPP statute. Under the TPPA, a party may seek dismissal of a lawsuit on the grounds that it was filed in response to the party’s exercise of the right to free speech, petition, or association. Here, the defendant attorneys argued that their former client’s lawsuit was filed in response to their exercise of the right of petition—i.e. the filing of the underlying lawsuit on behalf of their client. The court disagreed. Assuming for the sake of argument that filing a lawsuit is an exercise of the right to petition, the court reasoned that when an attorney brings litigation on behalf of his client, the attorney does not personally exercise the right. Rather, under traditional principles of agency law, when an attorney files a lawsuit on behalf of a client, it is the client who files the lawsuit. Thus, to any extent filing a lawsuit is an exercise of the right to petition, an attorney at most facilitates the client’s exercise of that right.

Cartwright v. Thomason Hendrix, P.C., No. W2022-01627-SC-R11-CV, 2025 WL 3523045 (Tenn. Dec. 9, 2025).

Third Circuit Affirms Dismissal of Fraud and FCRA Claims Against Lenders in Solar Panel Financing Scam

In this case, the Third Circuit affirmed dismissal of plaintiff Eva Migliore’s claims against two lenders. Migliore, a senior citizen in New Jersey, was approached at home by a Vision Solar salesman who offered her “free” rooftop solar panels. Without her knowledge, he created a fake email address, forged her signature on several documents—including a sales contract and a 25-year loan agreement for nearly $100,000—and used the lenders’ platform to obtain her credit report. When her son later discovered the forged loan, Migliore sued the solar companies and the lenders for fraud and violations of the New Jersey Consumer Fraud Act (CFA) and the Fair Credit Reporting Act. The Third Circuit found that Migliore’s allegations did not plausibly establish that the salesman acted on behalf of the defendant lenders. The agreement between the lenders and Vision Solar showed the lenders controlled credit criteria and loan approvals, while Vision Solar marketed the systems independently and could not bind or represent the lenders. The contract expressly disclaimed an agency relationship, and Migliore alleged no facts suggesting fiduciary duties or lender control over the salesman’s conduct.

Migliore by Migliore v. Vision Solar LLC, No. 24-1679, 2025 WL 3249147 (3d Cir. Nov. 21, 2025).

CYBER

First Circuit Holds Email Archiving Service Provider Not Liable to Insurer After Healthcare Data Breach

In this case, the First Circuit affirmed summary judgment for defendant Barracuda Networks after a 2018 data breach exposed protected health information (PHI) from Zoll Medical Corporation’s patients. Zoll had contracted with Fusion LLC for data-hosting services, and Fusion used Barracuda’s email-archiving technology. When the breach led to a customer class action against Zoll, its insurer, Axis Insurance, paid the settlement and, as subrogee and assignee, sued Barracuda for equitable indemnification, breach of contract, and breach of the covenant of good faith and fair dealing. The court held the equitable indemnification claim failed because Massachusetts law limits such recovery to situations of derivative or vicarious liability, such as employer-employee or principal-agent relationships. Axis presented no evidence of such a relationship. On the contract claim, Fusion’s failure to include liability-limitation clauses in its customer contracts violated a condition precedent in the OEM agreement with Barracuda. The court rejected the argument that Barracuda waived the condition precedent, noting an anti-waiver clause in the contract. Finally, the implied covenant claim failed because the contract contained no provision regarding any actions required to be taken in response to a data breach.

Axis Ins. Co. v. Barracuda Networks, Inc., No. 24-1920, 2025 WL 3240328 (1st Cir. Nov. 20, 2025).

EPL / LABOR & EMPLOYMENT

Second Circuit Revives Railroad Worker’s Retaliation Claim Under FRSA

Plaintiff Cody Ziparo was a freight train conductor for CSX Transportation. In early 2016, Ziparo’s supervisors pressured him to falsify records, and when Ziparo refused, his supervisors shouted at him, subjected him to additional scrutiny at work, and threatened to fire him for insubordination. The next day, Ziparo filed an internal retaliation complaint. Unrelatedly, about a month later, Ziparo made an error which caused serious damage to a train switch and could have caused a derailment had the train been traveling in the opposite direction. CSX fired Ziparo and Ziparo sued under the Federal Railroad Safety Act (“FRSA”), alleging that CSX unlawfully retaliated against him by first subjecting him to a retaliatory hostile work environment and then firing him. The district court granted summary judgment to CSX. The Second Circuit reversed, finding material factual disputes over whether Ziparo was subjected to a retaliatory hostile work environment and whether Ziparo’s protected activity contributed to his termination. The court highlighted clear evidence of antagonism towards Ziparo, close temporal proximity between Ziparo’s protected activity and his termination, and the fact that CSX did not terminate most other employees who made similar errors at work.

Ziparo v. CSX Transportation, Inc., No. 23-262, 2025 WL 3275465 (2d Cir. Nov. 25, 2025).

South Dakota Supreme Court Affirms Bad Faith Verdict Against Insurer for Inadequate UIM Claim Investigation

In this case, the Supreme Court of South Dakota upheld a jury verdict against an automobile insurer in a breach of contract and bad faith action. The plaintiff, Mark Fiechtner, sought medical treatment for neck pain, vision issues, and memory problems after he was injured in a motor vehicle accident. Fiechtner made a claim to his insurer, American West, which paid the limits of medical benefits coverage under his policy. However, when he sought underinsured motorist (UIM) benefits pursuant to his policy with American West, American West offered him substantially less than what he demanded. On appeal, the court found sufficient evidence supported the jury’s verdict. American West’s claim notes established its entire investigation of the UIM claim consisted of a review of the medical records submitted by Fiechtner’s counsel and a search of Fiechtner’s social media accounts. The claims adjuster, who concluded that Fiechter’s ongoing symptoms were likely caused by “getting older,” had no medical training and did not consult with Fiechtner’s physicians or an independent medical evaluator. In these circumstances, the jury was free to conclude that American West unreasonably denied Fiechtner’s claim.

Fiechtner v. Am. W. Ins. Co., 2025 S.D. 60, 2025 WL 3099067 (Nov. 5, 2025).

PROFESSIONAL LIABILITY / E & O

Mississippi Plaintiff’s Lack of Timely Expert Affidavit Required Summary Judgment for Medical Malpractice Defendants

This case emphasizes the crucial nature of sworn expert testimony to establish a prima facie case of medical negligence and the limits of a trial court’s discretion in excusing a plaintiff’s failure to provide such evidence. The plaintiff, Latisha Jackson, suffered a perforated bowel following a gynecological procedure. Under state law, Jackson was required to produce expert testimony to establish her prima facie case, but she did not produce any expert evidence in response to defendant Lakeland Premier’s motion for summary judgment. Nonetheless, the trial court denied summary judgment and sua sponte granted Jackson an additional thirty days to obtain an expert opinion. Subsequently, Jackson produced an expert affidavit, and the trial court denied summary judgment based on the expert’s opinion. The Supreme Court of Mississippi reversed. The court found that the trial court abused its discretion in granting the extension without making any findings that Jackson had acted with diligence and good faith in attempting to obtain an expert affidavit. Because Jackson failed to submit the required testimony before the original hearing date, no genuine issue of material fact existed and summary judgment was mandatory.

Lakeland Premier Women's Clinic, PLLC v. Jackson, No. 2024-IA-00445-SCT, 2025 WL 3032462 (Miss. Oct. 30, 2025).

EPL / LABOR & EMPLOYMENT

Eighth Circuit Vacates NLRB Order, Holding Home Depot Justified in Restricting “BLM” Apron Display Under Special Circumstances Doctrine

In this case, the Eighth Circuit reviewed a National Labor Relations Board (NLRB) order finding that Home Depot violated the National Labor Relations Act by requiring an employee of its New Brighton, Minnesota store to remove “BLM” (Black Lives Matter) lettering from their mandatory work apron and by constructively discharging the employee when they refused. The Board held that the employee’s refusal to remove the message was a logical outgrowth of employees’ prior complaints about racial discrimination and vandalism of Black History Month displays, making it protected concerted activity, and rejected Home Depot’s “special circumstances” defense. The Eighth Circuit disagreed and vacated the Board’s order, finding that special circumstances justified Home Depot’s actions. The court emphasized that the store was located only a few miles from where George Floyd had recently been murdered, had experienced protest-related closures, and faced heightened employee tensions and community unrest. In these circumstances, the court agreed with Home Depot’s argument that the BLM apron display could pose a risk to employee safety and interfere with Home Depot’s established apolitical public image.

Home Depot U.S.A., Inc. v. Nat'l Lab. Rels. Bd., No. 24-1406, 2025 WL 3099879 (8th Cir. Nov. 6, 2025).

Indiana Supreme Court Adopts “Safe Harbor” Rule for Insurers Using Interpleader Actions in Multi-Claimant Coverage Disputes

In this case, the Indiana Supreme Court addressed the dilemma faced by insurers when policy limits are insufficient to satisfy multiple claimants. If an insurer seeks individual settlements, policy limits may be exhausted before satisfying all claimants, but if an insurer seeks a global settlement, the approach may fail and expose the insured to increased personal liability. Here, after the insured caused a serious car accident, three individuals had potential injury claims against her $100,000 liability policy. When one claimant offered to settle for $50,000, the insurance company rejected the offer and instead filed an interpleader action, depositing the policy limits with the court and naming all claimants. The claimant subsequently obtained an assignment of the insured’s rights and sued the insurer for breach of the duty of good faith and fair dealing and bad faith. The court affirmed summary judgment for the defendant. Noting Indiana’s sparse case law on this issue, the court adopted Section 26 of the Second Restatement of Liability Insurance, which provides that an insurer should try to minimize the insured’s overall liability but may, as a safe harbor from liability to the insured, satisfy this duty by filing an interpleader action.

Baldwin v. Standard Fire Ins. Co., No. 25S-CT-33, 2025 WL 2962254 (Ind. Oct. 21, 2025).

PROFESSIONAL LIABILITY / E & O

Louisiana Appeals Court Revives Legal Malpractice Claim, Clarifying Limits of the “No Right of Action” Exception

In this case, the Louisiana Court of Appeal reversed a trial court judgment that had dismissed plaintiff Dan Strother’s legal malpractice suit based on the finding that he had no right of action. Strother, a Department of Defense employee, had retained the attorney Kathryn Cooper to represent him in a hearing on a temporary restraining order (TRO). While Strother alleged that he had informed Cooper that the restraining order needed to be dismissed to avoid adverse employment consequences, Cooper instead negotiated a resolution which merely allowed the TRO to expire. Subsequently, Strother was suspended without pay and denied a promotion. The trial court found Strother lacked a right of action because he could not prove causation. The appellate court disagreed, emphasizing that the exception of no right of action concerns whether the plaintiff is entitled to bring the suit, not the merits of the case. Because Strother alleged an attorney–client relationship, negligent representation, and damages, he had a valid legal interest and was entitled to bring the suit.

Strother v. Cooper, 2025-260, 2025 WL 3018649 (La. App. 3 Cir. 10/29/25).

EPL / LABOR & EMPLOYMENT

Eleventh Circuit Allows FLSA Claims for Overtime Pay to Proceed for Insurance Adjusters Alleging Independent Contractor Misclassification

After Hurricane Harvey, the plaintiffs were assigned by outsourcing company One Call Claims to adjust insurance claims for a wind and hail insurer. The plaintiffs alleged that they were misclassified as independent contractors and were in fact employees entitled to overtime pay under the Fair Labor Standards Act. The district court granted summary judgment to the defendants. The Eleventh Circuit reversed, finding a genuine dispute of material fact regarding whether the adjusters qualified as employees. Applying a six-factor test, the court pointed to evidence that the companies set the plaintiffs’ work schedules, paid a nonnegotiable rate, and retained the workers for an indefinite period of time. The court rejected the defendants’ emphasis on the fact that the workers had claimed tax deductions as independent contractors for their business expenses, explaining that a worker can be an employee for FLSA purposes without being an employee for other purposes.

Galarza v. One Call Claims, LLC, No. 23-13205, 2025 WL 2935114 (11th Cir. Oct. 16, 2025).

Georgia Appeals Court Revives Malpractice Suit Over Alleged Improper IV Administration that Led to Patient’s Hand Amputation

In this medical malpractice case, the Georgia Court of Appeals reversed the trial court’s grant of summary judgment to the defendants. Plaintiff Georgia Moton alleged that Emory Healthcare nurses negligently administered the anti-seizure medication Dilantin through a small IV in her hand rather than a larger IV in her neck, causing tissue necrosis which led to the amputation of Moton’s left hand. Moton’s medical records were silent on the issue of which IV was used. Moton’s expert witnesses opined that if Dilantin was administered through an IV on the hand, it would very likely cause tissue death, and that based on Moton’s injuries the defendants more likely than not used the hand vein. The trial court found undisputed evidence that Morton was given the medication through the neck IV and that her expert testimony was improperly speculative and inadmissible. The appellate court disagreed. The court pointed to conflicting testimony regarding the administration of the medication and emphasized that it was the jury’s role to resolve this conflict. Moreover, the expert witnesses’ reliance on circumstantial evidence did not render their opinions improperly speculative.

Moton v. Emory Healthcare, Inc., No. A25A1134, 2025 WL 2791532 (Ga. Ct. App. Oct. 1, 2025).

FINANCIAL INSTITUTIONS

Third Circuit Upholds Sanctions Against Consumer Protection Attorneys Who Manufactured FDCPA Claims Using “Gibberish” Dispute Letters

The Third Circuit took a strong stand against the abuse of consumer protection laws, upholding sanctions against a law firm for its handling of debt collection disputes. The attorneys created handwritten “client letters,” burying a sentence vaguely referring to disputing a debt within bizarre gibberish, and then sued when the creditor did not mark the debt as disputed. These letters were “designed to fail,” as the attorneys hoped the letters’ odd format would evade automated screening systems, causing the collectors to fail to mark the debts as disputed and triggering FDCPA liability. The district court dismissed the cases with prejudice, awarded the defendant attorney fees, and ordered the plaintiffs’ attorneys to write letters of apology and attach the sanction order to future debt-dispute cases. The Third Circuit upheld the sanctions, finding the attorneys conduct violated Rule 11 by submitting complaints based on misrepresentations. The court rejected the attorneys’ argument that Rule 11 did not cover “pre-litigation correspondence,” explaining that the letters were intended to improperly influence the judicial process and were attached as exhibits to the complaint.

Sofaly v. Portfolio Recovery Assocs., LLC, No. 24-2639, 2025 WL 2691992 (3d Cir. Sept. 22, 2025).

EPL / LABOR & EMPLOYMENT

Seventh Circuit Upholds Dismissal of Pilots’ Suit Claiming Union Failed to Oppose United Airlines’ COVID-19 Vaccine Mandate

In this case, the Seventh Circuit upheld dismissal of a lawsuit brought by former United Airlines pilots who claimed that their union, ALPA, breached its duty of fair representation by not opposing United’s COVID-19 vaccine mandate. After United required pilots to be vaccinated in 2021, ALPA declined to challenge the policy, reasoning that the collective bargaining agreement allowed United to unilaterally change personnel policies. While the union later filed grievances over the individual terminations of unvaccinated pilots, it refused to pursue broader challenges sought by the pilots. The plaintiffs argued that ALPA’s refusal to challenge the policy was arbitrary, discriminatory, and made in bad faith. The district court dismissed the case, holding that ALPA acted within its wide discretion in interpreting the collective bargaining agreement. The Seventh Circuit affirmed, finding ALPA’s interpretation of the contract at least “arguably justified.” The court also rejected claims of discrimination and bad faith, noting that the complaint lacked any non-speculative, well-pleaded factual allegations which would support findings of discriminatory intent or collusion.

Wickstrom v. Air Line Pilots Ass'n, Int'l, No. 25-1036, 2025 WL 2847771 (7th Cir. Oct. 8, 2025).

Washington Appeals Court Upholds Discipline Against COVID-19 Denier Physician for COVID-19 Patient Care but Reverses Sanctions for Physician's Blog Posts

In this appeal, physician Richard Wilkinson challenged discipline imposed on him by the Washington Medical Commission related to (1) his treatment of seven COVID-19 patients and (2) statements made on his clinic’s blog, in which Wilkinson characterized the pandemic as a “scam,” criticized public health authorities, and promoted the use of ivermectin over vaccines. In his treatment of patients, Wilkinson prescribed ivermectin and other off-label treatments without disclosing their unapproved nature, advised his patients against medically effective treatments such as remdesivir, and failed to obtain meaningful informed consent. Two of his patients died. The appellate court affirmed the discipline related to patient care, finding ample evidence that Wilkinson’s conduct fell below the standard of care, created an unreasonable risk of harm, and in some cases caused harm. However, the court reversed the discipline related to the blog posts, finding that the discipline breached Wilkinson’s First Amendment free speech rights. The court rejected the Commission's argument that it had disciplined Wilkinson only for his speech’s “falsity” rather than its “content,” citing Supreme Court precedent establishing that the First Amendment protects false statements.

Wilkinson v. Washington Med. Comm'n, No. 40061-1-III, 2025 WL 2652817 (Wash. Ct. App. Sept. 16, 2025).

EPL / LABOR & EMPLOYMENT

Second Circuit Revives Hostile Work Environment Claim Tied to Mandatory Implicit Bias Trainings

In this employment discrimination case, a white educator challenged mandatory implicit bias trainings at her workplace, alleging that the trainings and related conduct created a hostile work environment in violation of 42 U.S.C. § 1983. The plaintiff, Leslie Chislett, worked for the New York City Department of Education and served as the Executive Director of the “AP for All” program, an initiative to increase enrollment in Advanced Placement courses by students in underserved communities. The Second Circuit reversed the district court’s grant of summary judgment to the DOE on Chislett’s hostile work environment claim. The court explained that while required implicit bias trainings are not inherently discriminatory, the way the trainings are conducted might be. Here, Chislett presented evidence of concerning generalizations made at the trainings, including that the “white culture” is generally “supremacist,” “defensive,” and “paternalistic,” and instructors telling Chislett that her “interest in excellence was perfectionism and consistent with white supremacy.” Following the trainings, employees used terminology from the trainings to criticize Chislett, accusing her of “operating out of white privilege and supremacy” when she performed ordinary supervisory responsibilities.

Chislett v. New York City Dep't of Educ., No. 24-972-CV, 2025 WL 2725669 (2d Cir. Sept. 25, 2025).

PROFESSIONAL LIABILITY / E & O

California Court Sanctions Attorney $10,000 for Submitting AI-Fabricated Legal Citations

A California appellate court recently issued a blistering opinion as a “warning” to attorneys who inappropriately use artificial intelligence. In a straightforward employment case, plaintiff’s counsel submitted an opening brief in which nearly all the legal quotations were fabricated. The attorney admitted that he had used generative AI to draft the brief but asked the court to not award sanctions because he was unaware that AI tools can create fake legal authority and had no intent to deceive the court. Nonetheless, the court ordered the attorney to pay a $10,000 fine and directed the clerk to serve a copy of the opinion on the state bar. The court emphasized that nothing filed with the court should contain any citations that the attorney responsible for submitting the pleading has not personally read and verified. The court found that the appeal was frivolous for failing to support its assertions with actual legal authority and explained that the award of sanctions was appropriate because the attorney “fundamentally abdicated his responsibility to the court and to his client” and the fabrications required the court to “spend excessive time…to attempt to track down fabricated legal authority.”

Noland v. Land of the Free, L.P., No. B331918, 2025 WL 2629868 (Cal. Ct. App. Sept. 12, 2025).

Third Circuit Revives University Lecturer’s First Amendment Claim, Holding Free Speech Rights Outweighed University’s Speculative “Disruption” Concerns

In this case, the Third Circuit considered whether the New Jersey Institute of Technology (NJIT) violated the First Amendment by declining to renew plaintiff Jason Jorjani’s teaching contract. Jorjani founded an off-campus organization associated with the “Alt Right” and publicly advanced racist theories. In 2017, Jorjani was recorded predicting a future in which Adolf Hitler would be viewed as a historical leader akin to Napoleon. After the New York Times published excerpts, NJIT placed Jorjani on leave, claiming his statements led to on-campus disruption, and ultimately decided against renewing Jorjani’s contract. Jorjani sued, alleging First Amendment retaliation. The Third Circuit reversed the district court’s grant of summary judgment to NJIT. The parties agreed that under the test set forth in Pickering v. Board of Education, Jorjani’s speech was made as a private citizen and involved a matter of public concern. The remaining issue was whether NJIT’s interests outweighed Jorjani’s free speech rights. The court found the alleged “disruption” was mostly speculative and showed only minor burdens such as emailed complaints without evidence that Jorjani’s speech impaired teaching, student relations, or institutional functioning. Therefore, NJIT’s interests were insufficient to outweigh Jorjani’s speech rights.

Jorjani v. New Jersey Inst. of Tech., No. 24-2588, 2025 WL 2586673 (3d Cir. Sept. 8, 2025).

ERISA / FIDUCIARY

Seventh Circuit Holds Changing Disability Onset Date in Appeal Created “New Claim” Requiring Administrative Exhaustion under ERISA

In this case, the Seventh Circuit affirmed the denial of long-term disability benefits based on the plaintiff’s failure to exhaust administrative remedies. The plaintiff, Karen Moratz, was the principal flutist for the Indianapolis Symphony Orchestra (ISO). In March 2020, ISO furloughed its musicians due to the COVID-19 pandemic. Moratz contracted COVID-19 in December 2020 and developed chronic dizziness and tinnitus that prevented her from performing. The insurer denied Moratz’s February 2022 application for long term disability benefits, reasoning that she was not an “active, full-time employee” at the time her disability began. Moratz appealed, this time providing evidence that she had been rehired in September 2021 as a full-time employee but was forced to go on sick leave when her symptoms made it impossible to rehearse. The insurer rejected the appeal, maintaining that this new evidence reflected a fundamentally different claim requiring a separate application. The Seventh Circuit agreed. The court reasoned that because Moratz’s appeal sought coverage beginning in September 2021 instead of December 2020, she had made a claim for a separate loss under the policy, requiring her to exhaust administrative remedies before suing in federal court.

Moratz v. Reliance Standard Life Ins. Co., No. 24-2825, 2025 WL 2505760 (7th Cir. Sept. 2, 2025).

BAD FAITH / INSURANCE

Connecticut Supreme Court Affirms Dismissal of Homeowners’ Negligence Claim, Holding Insurance Brokers Are Not Responsible for Notifying Clients of Policy Nonrenewal

Plaintiffs Lee Deer and Keleen Deer used an insurance brokerage firm to procure homeowner’s insurance. Two years later, the insurer emailed the broker, asking the firm to inform the plaintiffs that their coverage would be dropped if they did not make repairs to their home. The insurer’s attempt to send the plaintiffs a nonrenewal letter directly by certified mail was unsuccessful. The plaintiffs learned their home was no longer insured after the home was destroyed in a fire. They sued the insurer and the insurance broker. With respect to the broker, they asserted a common-law negligence claim based on the broker’s failure to inform them that the insurer intended to not renew the policy. The court held that the broker had no common-law duty to inform the plaintiffs of the impending nonrenewal. Under Connecticut law, absent exceptional circumstances, the agency relationship between a broker and insured ends once the insurance policy is procured. The broker was entitled to rely on the insurer to provide notice of its intention to not renew the policy because the insurer was statutorily and contractually obligated to do so.

Deer v. Nat'l Gen. Ins. Co., No. SC 21045, 2025 WL 2576439 (Conn. Sept. 9, 2025).

Ninth Circuit Holds Website User Lacked Standing to Challenge Business’s Use of Session Replay Technology

This lawsuit addressed a website user’s standing to challenge the use of session replay technology. This technology allows businesses to closely monitor customers’ interactions with their websites by recording electronic communications such as mouse movements, clicks, scrolling, and keystrokes. The plaintiff encountered session replay technology when shopping for pet supplies and alleged invasion of privacy and violations of Pennsylvania’s Wiretapping and Electronic Surveillance Control Act (WESCA). The Ninth Circuit held that the plaintiff had not alleged a concrete injury sufficient to support Article III standing. Under prior precedent, the plaintiff was required to show the harm she suffered was similar to the harm associated with a common law tort. While the plaintiff pointed to the common-law tort of intrusion upon seclusion, this tort requires an intrusion which would be “highly offensive” to a reasonable person. Here, in the court’s view, the website’s tracking of the plaintiff’s website visit was not “highly offensive” but rather seemed “most similar to a store observing shoppers in order to identify aisles that are particularly popular or to spot problems that disrupt potential sales.”

Popa v. Microsoft Corp., No. 24-14, 2025 WL 2448824 (9th Cir. Aug. 26, 2025).

EPL / LABOR & EMPLOYMENT

Fourth Circuit Revives Professor’s Discrimination Lawsuit Based on Evidence of Pretext

A university professor claimed her employer denied her promotions because of her sex, paid her less than male colleagues, and demoted her because she made protected complaints. She sued, alleging violations of Title VII, Title IX, and Section 1983. In response, the university claimed the plaintiff was denied promotions because she lacked a strong publication history, was paid less because she had less experience, and was demoted to an at-will position because the university happened to discover that her initial contract had never been renewed. The Fourth Circuit reversed the district court’s grant of summary judgment, finding evidence of pretext. For example, the chair of the department told a graduate student that the plaintiff would never be approved for tenure and was being underpaid because she was a “disgusting lesbian” whom the chair wanted to leave campus. The evidence also showed that the university believed the plaintiff was well qualified when it hired her and offered different justifications at different times for the denial of promotions. Regarding the plaintiff’s retaliation claim, the court found that the close timing between the plaintiff’s protected complaints and her demotion was sufficient to establish causation at summary judgment.

Hollis v. Morgan State Univ., No. 24-1476, 2025 WL 2460501 (4th Cir. Aug. 27, 2025).

PROFESSIONAL LIABILITY / E & O

Supreme Court of California Holds Lawsuit Against Skilled Nursing Facility Not Necessarily Medical Malpractice Action Subjecting Plaintiffs to Mandatory Arbitration

The plaintiffs sued a 24-hour skilled nursing facility following their son’s death. The parents’ complaint alleged that their son suffered multiple falls and infections at the facility and that the facility failed to hire enough staff and keep the building in good repair. The defendant filed a motion to compel arbitration under California’s Medical Injury Compensation Reform Act (MICRA), which subjects all wrongful death actions for medical malpractice to mandatory arbitration so long as the decedent had signed an arbitration agreement. The Supreme Court of California reversed the holding of the appellate court that the plaintiffs must be forced to arbitrate their wrongful death claim. The court explained that the lawsuit did not necessarily fall within the scope of MICRA’s arbitration rule just because a skilled nursing facility was the defendant; the rule applies only to negligence in the provision of medical care, not custodial care. Here, the plaintiffs’ complaint did not adequately explain whether they alleged negligence in the provision of medical care, custodial care, or both. The court instructed that on remand, the trial court should grant the plaintiffs leave to amend their complaint to flesh out their allegations before ruling on the defendant’s motion.

Holland v. Silverscreen Healthcare, Inc., No. S285429, 2025 WL 2349863 (Cal. Aug. 14, 2025).

Fourth Circuit Adopts Flexible Reasonableness Standard for Evaluating Whether Union Member Has Met “Demand Requirement” to Sue Union for Breach of Fiduciary Duty

The Fourth Circuit addressed whether plaintiff Sandra Gardner, a member of the International Association of Machinists (IAM), met the statutory “demand requirement” prerequisite to sue IAM for breach of fiduciary duty. 29 U.S.C. § 501 requires a union member to (1) demand the union take corrective action and (2) show “good cause” before filing a lawsuit. Gardner alleged that the union’s general secretary-treasurer misused union funds for personal travel. Gardner sent letters to IAM’s international president and executive council demanding both an accounting of misappropriated funds and that the union sue the secretary-treasurer to recover the funds. After IAM hired an outside accounting firm, which reported no wrongdoing, IAM declined to take further action. The district court denied Gardener’s application to sue, holding she failed to meet the demand requirement because IAM obtained an accounting and therefore acted on her request. The Fourth Circuit reversed, holding that the demand requirement is satisfied if a reasonable union would be put on notice of the corrective action demanded by the union members. Gardner’s letters made clear that she wanted both accounting and a lawsuit. Because IAM provided only an accounting, it did not fulfill her demand.

Gardner v. Int'l Ass'n of Machinists & Aerospace Workers, No. 24-2089, 2025 WL 2302430 (4th Cir. Aug. 11, 2025).

COVERAGE / BAD FAITH

Minnesota Statute Required Insurer to Cover Roof Repair Costs Despite Policy Exclusion

The Minnesota Supreme Court addressed whether an insurer was required to cover certain roof repair costs despite a policy exclusion. After a hailstorm damaged shingles on a house, the homeowner’s contractor discovered the roof decking had gaps exceeding state code limits for shingle installation. To comply with the code, the contractor installed new sheathing before affixing the shingles. The insurer denied coverage for the sheathing, citing a “roof damage limitation endorsement” in the insurance policy excluding materials beneath the outermost roofing layer. The court held that the insurer was required to cover the sheathing under Minn. Stat. § 65A.10, subd. 1, which requires replacement cost insurance to cover repairs “in accordance with the minimum code” after a partial loss. While the shingles were the only part of the roof damaged in the storm, the building code prohibited installing shingles on decking with gaps over one-eighth of an inch—meaning that the contractor could not have lawfully replaced the shingles without installing new sheathing. Therefore, Section 65A.10’s statutory mandate invalidated the endorsement excluding such coverage. However, the insurer was not required to cover the contractor’s overhead and profit because doing so was not required to comply with the building code.

Great Nw. Ins. Co. v. Campbell, No. A23-0519, 2025 WL 2155182 (Minn. July 30, 2025).

FINANCIAL INSTITUTIONS

Wisconsin Court of Appeals Declines to Recognize “Meaningful Involvement” Theory of Recovery under Wisconsin Consumer Act

As a matter of first impression, the Wisconsin Court of Appeals held that the federal “meaningful involvement” doctrine applicable to the Fair Debt Collection Practices Act (FDCPA) does not extend to actions brought under the Wisconsin Consumer Act (WCA). The debtor alleged that she received a form letter signed by an attorney who was not actually meaningfully involved in the decision to send the demand letter or file a small claims action against her. Courts have held that under the FDCPA, it is unlawful for a creditor to send a communication falsely representing or implying it is from an attorney without the attorney’s meaningful involvement in the process. Such communications are considered misleading because they falsely imply that an attorney made a professional judgment that the debt is delinquent and a candidate for legal action. However, the WCA uses different language than the FDCPA, forbidding only communications which falsely give “the appearance of being authorized, issued, or approved” by an attorney. Here, the attorney had indisputably “authorized” the letter by signing it, regardless of his level of involvement in the matter. Therefore, the debtor’s claim was not viable.

Plaza Servs. LLC v. Burton, No. 2024AP1129, 2025 WL 2048528 (Wis. Ct. App. July 22, 2025).

Eleventh Circuit Rules Holds FCRA Plaintiff Who Expended Time and Money to Correct Incorrect Credit Report Information Lacked Standing, Finding Harm “Self-Inflicted”

In this case, the Eleventh Circuit addressed the circumstances under which a plaintiff has standing to sue under the Fair Credit Reporting Act based on her expenditure of time and money to correct incorrect information in her credit report. The plaintiff, Jessica Nelson, identified several inaccuracies in her Experian credit report and engaged in repeated correspondence to have them corrected, spending around $20 on certified mail. Although the disputed information was never disclosed to a third party, she claimed that her time and expense, as well as an increased risk of identity theft, constituted a concrete injury. The court disagreed. The court explained that while previous case law recognized that time and money spent correcting published credit report errors can establish standing, those rulings involved the dissemination of false information to third parties. In the court’s view, Nelson’s expenditure of time and money was self-imposed and holding otherwise would allow plaintiffs to manufacture standing by incurring costs to rectify otherwise harmless credit report errors. The court also rejected Nelson’s theory of increased identity theft risk as speculative.

Nelson v. Experian Info. Sols. Inc., No. 24-10147, 2025 WL 2016752 (11th Cir. July 18, 2025).

EPL / LABOR & EMPLOYMENT

Eighth Circuit Revives Americans with Disabilities Act Case Based on Evidence Employer Regarded Employee as Disabled

David Meza was an employee of Union Pacific Railroad Company who suffered a traumatic brain injury. Although his treating physicians cleared him to return to work, Union Pacific’s medical examiner expressed concern over a risk of future seizures. Subsequently, the company imposed work restrictions that prevented Meza from returning to his job. Under the ADA, a nondisabled plaintiff can prove disability discrimination if the employer “regards him as” disabled. The district court dismissed the case, finding the railroad did not view Meza as currently disabled but was merely concerned he would potentially become impaired in the future. The Eighth Circuit disagreed, finding a genuine issue of material fact as to whether Union Pacific regarded Meza as having a present impairment. The medical examiner’s report references a “chemical alternation” in Meza’s brain and an ongoing risk of seizures. The court distinguished Morriss v. BNSF, in which another railroad refused to hire the plaintiff due to perceived future health risks associated with his weight. In Morriss, the employer was concerned that a “physical characteristic”—not a presently existing impairment—created a risk of future health issues which could affect his ability to do his job safely.

Meza v. Union Pac. R.R. Co., No. 24-1367, 2025 WL 2090535 (8th Cir. July 25, 2025).

PROFESSIONAL LIABILITY / E & O

Michigan Appellate Court Holds Loss-of-Services Damages Remain Available under Amended Wrongful Death Act

The son of the plaintiff in this medical malpractice case died a few days after he was born. The plaintiff claimed that her son’s death caused her to suffer lost-earning capacity damages and loss-of-services damages. On appeal from the denial of the defendants’ motion for partial summary judgment, the parties agreed that lost-earning-capacity damages were not available under the state’s wrongful death act (WDA) and the Michigan Supreme Court’s holding in Daher v. Prime Healthcare Servs. However, Daher did not resolve whether loss-of-services damages remained available following legislative revisions to the WDA. As a matter of first impression, the Court of Appeals of Michigan held that loss-of-services damages are not barred as a matter of law. Reviewing the text and legislative history of the WDA, the court concluded that recent revisions to the WDA did not intend to remove any types of damages traditionally available in wrongful death actions. Though the WDA does not explicitly mention loss-of-services damages, such damages had long been available at common law. To abrogate the common law, the legislature would have had to “speak in no uncertain terms,” and it did not do so.

Demott v. VHS Harper-Hutzel Hosp., Inc., No. 369500, 2025 WL 2004671 (Mich. Ct. App. July 17, 2025).

COVERAGE / BAD FAITH

Mississippi Supreme Court Upholds $10 Million Punitive Damages Award Against Insurer

The plaintiffs had a homeowner’s insurance policy with United Services Automobile Association (USAA) when their home was destroyed by Hurricane Katrina in 2005. The policy covered damage caused by wind but not by flooding or storm surge. The plaintiffs maintained they suffered a total loss caused by wind and requested that USAA pay the policy limits totaling over $2 million. USAA paid much less, claiming most of the damage was not caused by wind. A jury awarded the plaintiffs approximately $1.5 million in compensatory damages and $10 million in punitive damages. On appeal, USAA argued that it was improper for the trial court to submit the issue of punitive damages to the jury. In a bad faith case, a jury may be allowed to consider punitive damages only where a reasonable juror could have identified either malice or gross disregard for the rights of others. The Mississippi Supreme Court upheld the punitive damages award. The court emphasized that USAA’s own engineer’s report highlighted the extent of the wind damage and advised that USAA was responsible for replacing all the windows and the contents of every room with windows. USAA also delayed payment of the plaintiffs’ claims for several years.

United Servs. Auto. Ass'n v. Est. of Sylvia F., No. 2023-CA-00049-SCT, 2024 WL 4985302 (Miss. Dec. 5, 2024).

PROFESSIONAL LIABILITY / E & O
Alaska Supreme Court Upholds Dismissal of Informed Consent Case Based on Lack of Causation Evidence
The parents of a stillborn child sued the midwives attending the birth for medical malpractice and failure to obtain informed consent. The plaintiffs argued that the midwives failed to inform the mother of the heightened risks associated with her advanced maternal age and history of miscarriage, which would have led her to choose hospital delivery, and alleged that the midwives’ delayed response to fetal distress caused the stillbirth. However, the midwives’ expert witness opined that the child’s death was caused by an infection unrelated to the midwives’ care. The superior court granted summary judgment for the midwives, finding that the plaintiffs failed to provide evidence of causation. The Alaska Supreme Court affirmed. Reviewing the evidence, the court explained that the plaintiffs’ expert witnesses did not identify a definitive cause of death or rebut the midwives’ expert. The court rejected the plaintiffs’ argument that under Alaska’s informed consent statute, it was unnecessary to prove causation. While the statute does not mention a causation requirement, the statutory language and legislative history provided no basis to believe the legislature intended to abrogate the common law causation requirement.
Goodwin v. Mat-Su Midwifery, Inc., No. S-18401, 2024 WL 4998438 (Alaska Dec. 6, 2024).

Plaintiffs Sufficiently Alleged Breach of Fiduciary Duties in ERISA Lawsuit
Five employees brought a class action lawsuit under the Employee Retirement Income Security Act (ERISA) against their employer and its fiduciaries, alleging breaches of fiduciary duties in managing a retirement savings plan. The plaintiffs claimed the defendants imprudently retained underperforming funds, inadequately monitored fiduciary agents, and failed to request a waiver of share class thresholds, which would have provided access to lower-cost investment options if the defendants had negotiated effectively. The district court dismissed the lawsuit for failure to state a claim, finding the allegations regarding imprudence insufficient and speculative, particularly regarding the waiver of share class thresholds. The Eighth Circuit reversed. The court found that the plaintiffs plausibly alleged a breach of the ERISA duty of prudence, noting that it is “beyond dispute” that “wasting beneficiaries’ money is imprudent.” The plaintiffs sufficiently alleged the defendants breached their fiduciary duties by failing to request a waiver of the share class thresholds by alleging that the plan, which was one of the largest in the country, had tremendous bargaining power, and that the investment provider would have waived its advertised minimum investment threshold for lower-cost shares if the administrator had requested a waiver.
Johnson v. Parker-Hannifin Corp., No. 24-3014, 2024 WL 4834717 (6th Cir. Nov. 20, 2024).

PROFESSIONAL LIABILITY / E & O

Nebraska Supreme Court Addresses Recovery of Noneconomic Damages in Legal Malpractice Actions Arising from Child Custody Disputes

In this case, the Nebraska Supreme Court addressed a certified question from federal district court: Under what circumstances, if any, may a plaintiff recover noneconomic damages in a legal malpractice action arising from a child custody dispute? The plaintiff sued his former attorney, alleging that the attorney negligently advised him to accept a temporary custody arrangement and failed to advocate for his custody rights. Based on a review of case law from Nebraska and other jurisdictions, the court held that noneconomic damages may be recoverable in such cases, but only where an attorney's conduct is egregious or intentionally aimed at destroying the parent-child relationship. The court explained that noneconomic damages are traditionally recoverable only in cases involving physical injury or egregious or intentional conduct, not negligence. The general measure of damages in legal malpractice cases is the actual economic loss caused by the attorney's conduct, due to the difficulty of quantifying emotional harm and risk of overburdening the legal system with subjective claims. However, the intrinsic value of the parent-child relationship and possibility for extreme harm justify a limited exception to these general rules in cases of egregious misconduct.

Gilbert v. Johnson, 318 Neb. 105 (Nov. 22, 2024).

EPL / LABOR & EMPLOYMENT

First Circuit Upholds Dismissal of Age Discrimination Lawsuit, Holds Plaintiff Failed to Show Pretext

The First Circuit upheld the district court’s summary judgment in favor of the employer, Trader Joe’s, in this age discrimination lawsuit. The plaintiff was 77-year-old long-term employee who was terminated after purchasing alcohol for her 19-year-old grandson, a fellow store employee. The court applied the McDonnell Douglas burden-shifting framework for age discrimination claims. The court assumed that the plaintiff established a prima facie case, and given Trader Joe’s articulation of a legitimate, nondiscriminatory reason for the termination–the plaintiff’s violation of its alcohol policy and Massachusetts law–the only remaining issue was whether the plaintiff could show this reason was pretextual. The plaintiff argued that she did not actually violate state law or the store’s policy, referencing a Massachusetts statute which permits grandparents to allow their grandchildren to possess alcoholic beverages on premises they own or control, and arguing that the store’s policy prohibited only the sale of alcohol to an underage person, not the purchase of alcohol for an underage person. The court rejected this argument, emphasizing that the relevant inquiry was not whether the plaintiff actually violated the law or policy, but whether Trader Joe’s genuinely believed she did at the time of her termination.

Cocuzzo v. Trader Joe's E. Inc., No. 23-1695, 2024 WL 4799281 (1st Cir. Nov. 15, 2024).

Iowa Supreme Court Holds Admission of Hearsay Evidence Deprived Medical Clinic of Fair Trial, Reversing $97 Million Jury Verdict
In this medical malpractice case, the Iowa Supreme Court reversed a jury verdict awarding over $97 million to the plaintiff, the conservator of a baby injured during delivery. The plaintiff alleged that the doctor negligently used a vacuum device, causing the baby’s brain injuries. On appeal, the clinic challenged the admission of a vacuum device package insert that listed conditions under which the device should not be used and potential injuries. The court ruled the insert was inadmissible hearsay and that its admission deprived the clinic of a fair trial. The court rejected the plaintiff’s argument that the insert was properly admitted under Iowa’s residual exception and market reports exception. The court explained that the residual exception requires the hearsay evidence to be superior to other available evidence, but here, the plaintiff’s expert testimony was more detailed and related to the specific facts of the case. In addition, the market reports exception applies only to straightforward, objective facts, not evaluative or liability-limiting statements like those in the insert. The insert’s admission was particularly prejudicial because the plaintiff’s attorney emphasized the insert during closing arguments and misleadingly implied the insert was endorsed by the FDA.
S.K. by & through Tarbox v. Obstetric & Gynecologic Assocs. of Iowa City & Coralville, P.C., No. 22-1317, 2024 WL 4714425 (Iowa Nov. 8, 2024).

COVERAGE / BAD FAITH

Indiana Supreme Court Addresses Interpretation of State’s Underinsured Motorist Statute

The plaintiff was injured in a collision with a passenger vehicle while driving a truck for his employer. After recovering the full amount available from the other vehicle’s liability insurer, he sought recovery from his employer’s insurance company, ACE American Insurance Company (ACE). ACE refused to pay. Indiana law requires motor vehicle liability insurance policies to include underinsured motorist coverage, but exempts “commercial umbrella or excess liability policies” from this requirement. The statute does not define “excess liability policies.” ACE argued that the exemption applied and also pointed out that the policy’s terms provided no coverage until the insured paid a $3 million “retained limit.” The plaintiff argued that the exemption was intended to apply only to traditional umbrella and excess liability policies which provide excess coverage over underlying insurance, not those which provide coverage beyond a retained limit. Undertaking detailed statutory and case law analysis, the Indiana Supreme Court concluded that the statute was ambiguous and that both parties offered a reasonable interpretation. Nonetheless, the court ruled in favor of the plaintiff, relying on the simple principle that under Indiana law, ambiguity must be resolved in favor of the insured.
 
Loomis v. ACE Am. Ins. Co., No. 24S-CQ-69, 2024 WL 4614631 (Ind. Oct. 30, 2024).

FINANCIAL INSTITUTIONS

Eleventh Circuit Reverses Dismissal of FCRA Lawsuit Against Missouri Student Loan Servicer

The plaintiff sued the United States Department of Education (“the Department”) and the Higher Education Loan Authority of the State of Missouri (“MOHELA”) under the Fair Credit Reporting Act after finding errors on his credit report. The district court dismissed the case, holding that the Department was entitled to sovereign immunity and MOHELA was entitled to Eleventh Amendment immunity as an “arm of the state.” The Tenth Circuit reversed. With respect to the Department, the Court relied on the Supreme Court’s February 2024 holding that the FCRA waives the federal government’s sovereign immunity. As for MOHELA, the court held as a matter of first impression that MOHELA was not an arm of the state. Numerous factors supporting this holding, including MOHELA’s autonomy in setting its own policies and independently entering into contracts, a state statute providing that MOHELA had the authority to sue and be sued, and MOHELA’s ability to generate revenue independent from state funding.

Good v. Dep't of Educ., No. 22-3286, 2024 WL 4745213 (10th Cir. Nov. 12, 2024).

Second Circuit Holds Newsletter Subscriber Whose Video Viewing History Was Disclosed to Facebook Stated Claim Under Video Privacy Protection Act

In this digital privacy case, the Second Circuit provided a close analysis of how the 1988 Video Privacy Protection Act (VPPA) may be applied “in today’s increasingly online world.” The plaintiff, a professional basketball player, subscribed to the NBA’s online newsletter. The subscription gave him access to videos on the NBA’s website, and he watched videos while logged in to his Facebook account. This caused his personal viewing history to be disclosed to Meta (formerly the Facebook Company). He alleged that the NBA violated the VPPA, which makes it unlawful for a “video tape service provider” to “knowingly disclose…personally identifiable information concerning any consumer of such provider.” The district court dismissed the case, holding that the VPPA’s definition of “consumer” is limited to consumers of audiovisual “goods or services,” which the online newsletter was not. The VPPA defines the term “consumer” as “any renter, purchaser, or subscriber of goods or services from a video tape service provider” but does not explicitly define the phrase “subscriber of goods or services.” The Second Circuit reversed. Closely analyzing the statute’s text, purposes, and legislative history, the court concluded that the phrase “goods or services” was expansive enough to include the newsletter.

Salazar v. Nat'l Basketball Ass'n, No. 23-1147, 2024 WL 4487971 (2d Cir. Oct. 15, 2024).

EPL / LABOR & EMPLOYMENT
Eleventh Circuit Upholds Default Judgment as Sanction for Employer’s Egregious Discovery Violations

The defendant was sued under the Fair Labor Standards Act (FLSA) by four employees, who alleged wage and hour violations. The district court entered a default judgment against the defendant as a sanction for the defendant’s noncompliance with its discovery obligations. On appeal, the defendant argued that default judgment, a sanction of last resort, was an excessive sanction. The Eleventh Circuit disagreed, finding that it was “hard to imagine a more appropriate case than this one” and “years of obstinance, dozens of discovery violations, and unceasing attempts to blame others finally caught up with” the defendant. The district court ordered the defendant to produce crucial time and pay records twelve separate times. The defendant promised to do so, but repeatedly failed to comply, making various excuses and falsely claiming its third-party payroll processor was responsible for the delay. Lesser sanctions failed to end the defendant’s noncompliance. Faced with an upcoming wage-and-hour trial without any documentation of wages or hours, the district court had little choice but to issue the default judgment.

Hornady v. Outokumpu Stainless USA, LLC, No. 22-13691, 2024 WL 4471161 (11th Cir. Oct. 11, 2024).

PROFESSIONAL LIABILITY / E & O
Standard of Care Expert Testimony Not Required Where Special Education Teacher Physically Restrained and Hit Four-Year-Old Child
This case addressed the issue of whether expert testimony was required in a negligence lawsuit where the parties disputed the applicable standard of care. A special education teacher physically restrained a four-year-old student and struck him in the face after the child resisted her attempts to transition him from one activity to another. The child’s parents sued the school district, alleging that the school district failed to properly supervise and train the teacher. The trial court dismissed the case because the plaintiffs did not provide an expert on the standard of care required for training and supervision in special education. The Kansas Court of Appeals reversed. The court explained that the plaintiffs did not allege that the school breached a professional standard of care outside the common knowledge of jurors, in which case expert testimony would be required. Rather, the plaintiffs alleged the school failed to properly train and supervise the teacher to not physically restrain and hit their child. The court emphasized that the school did not argue that the teacher acted appropriately based on being a special education teacher; in fact, the teacher was fired after the incident. In these circumstances, no expert testimony was required.

S.B. v. Sedgwick Cnty. Area Educ. Servs. Interlocal Coop. #618, 556 P.3d 902 (Kan. Ct. App. Oct. 11, 2024).

Public School Principal Who Was Retaliated Against for Reporting Discrimination in Student Athletics Stated Claim Under Title VI

After a public school principal complained that her students were victims of race discrimination in athletic programs, the Department of Education (DOE) investigated her based on allegations that she was trying to recruit students into a communist organization. Though the investigators eventually concluded they could not substantiate the allegations, the principal alleged that the investigation damaged her reputation. She sued under Title VI, alleging that the DOE unlawfully retaliated against her for complaining about race discrimination. The district court held that she failed to state a claim. The court relied on Section 604 of Title VI, which bars claims challenging “employment practices.” The district court reasoned that the retaliation claim challenged an “employment practice” because it arose from her employer’s investigation of her as an employee. The Second Circuit reversed. The court held that a Title VI retaliation claim is an action “with respect to any employment practice” only if the underlying protected activity concerns opposing unlawful employment discrimination. The court reasoned that the purpose of Section 604 is to protect employers from double liability under both Title VI and Title VII. Here, the principal complained about discrimination against students, not workplace discrimination prohibited by Title VII.

Bloomberg v. New York City Dep't of Educ., No. 23-343-CV, 2024 WL 4376584 (2d Cir. Oct. 3, 2024).

FINANCIAL INSTITUTIONS

Eighth Circuit Reverses Summary Judgment for Plaintiff in FDCPA Case Based on Plaintiff’s Lack of Standing

The plaintiff alleged that a letter she received from a debt collection agency violated the Fair Debt Collection Practices Act (FDCPA) by including improper utility fees, failing to provide required information about disputing the debt, and listing an excessive interest rate. She asserted harm in the form of a violation of her statutory rights, inaccurate information, a risk of future tangible harm, emotional distress, and the loss of time and money. The district court granted summary judgment to the plaintiff on the merits. On appeal, the Eighth Circuit Court of Appeals vacated the district court’s judgment and remanded the case with instructions to dismiss for lack of subject-matter jurisdiction. The court held that the plaintiff had not shown she suffered a concrete injury as a result of the alleged FDCPA violations. The court reasoned that a mere violation of statutory rights does not confer standing and the plaintiff had not shown any adverse consequences from the alleged lack of information. Under Eighth Circuit precedent, the plaintiff’s emotional distress was insufficient to establish standing. Additionally, the court found the plaintiff’s claims of financial harm conclusory, as she did not provide any documentation showing actual monetary losses.

Hekel v. Hunter Warfield, Inc., No. 23-3091, 2024 WL 4402009 (8th Cir. Oct. 4, 2024).

PROFESSIONAL LIABILITY / E & O

Colorado Appeals Court Provides Comprehensive Guidance on Retaining Lien Statute

This case provides detailed guidance on the application of Colorado’s retaining lien statute, which has rarely been addressed in case law. Colorado law authorizes an attorney to retain client files until compensation is paid. Here, the dispute originated from the plaintiffs’ investment in a company represented by Ruebel, the defendant attorney. After the company defaulted on a $2.5 million line of credit, the plaintiffs and the company entered into a forbearance agreement, which was negotiated by Ruebel. After defaults by buyers, the company ultimately was left without assets and dissolved. The plaintiffs then sued Ruebel for legal malpractice, claiming they lost nearly their entire investment due to Ruebel’s negligence. During litigation, the plaintiffs sought production of Ruebel’s files, but Ruebel refused, citing Colorado’s retaining lien statute and the company’s unpaid legal fees. The district court ruled in favor of Ruebel. The appellate court reversed. The court concluded that a retaining lien is not absolute and must be weighed against public policy. The court set out numerous factors the district court failed to consider, including whether the lien could be enforced if the company were unable to pay the outstanding fees and whether the plaintiffs were Ruebel’s clients.

Norton v. Ruebel, 2024 COA 108 (Colo. App. 2024).