No Good Men?

SHERRY F. COLB

Cornell law professor Sherry F. Colb comments on a film called “Promising Young Women,” which purports to be a feminist movie about date rape. While Professor Colb describes the movie as interesting, thought-provoking, and “definitely” worth seeing, she argues that it suggests a view of men and sexual assault that is erroneous and potentially even anti-feminist.

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Last Call at the Bar: Grading the Briefs in Trump Impeachment 2.0

DEAN FALVY

Dean Falvy, a lecturer at the University of Washington School of Law in Seattle, offers thoughts on the legal tactics and briefs filed by each side in former President Trump’s second impeachment trial. Mr. Falvy argues that if Trump can survive a second impeachment vote, it will show that he is still operating where he has always believed himself to be: well beyond the reach of the law.

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Belmora LLC v. Bayer Consumer Care AG

Court: US Court of Appeals for the Fourth Circuit

Dockets: 18-2183, 18-2232

Opinion Date: February 2, 2021

Judge: Floyd

Areas of Law: Business Law

Bayer filed suit against Belmora, alleging that Belmora engaged in unfair competition in violation of section 43(a) of the Lanham Act. The district court held that Bayer's section 43(a) claims were time-barred. In this case, because the Lanham Act does not include a limitations period for section 43(a) claims, the district court borrowed the statute of limitations from the most analogous state law, declining to apply the equitable doctrine of laches to those claims. The Fourth Circuit vacated the district court's judgment, concluding that the equitable doctrine of laches, rather than a statute of limitations, is the appropriate defense to Bayer's section 43(a) claims. The court also concluded that the district court failed to consider whether Bayer's related state-law claims were subject to tolling. The court remanded to the district court to determine in the first instance whether Bayer's section 43(a) claims are barred by laches and whether Bayer's related state-law claims are subject to tolling. The court affirmed the district court's judgment in all other respects.

Chu v. Old Republic Home Protection Company, Inc.

Court: California Courts of Appeal

Docket: B302792(Second Appellate District)

Opinion Date: January 29, 2021

Judge: Kim

Areas of Law: Business Law, Insurance Law

The Court of Appeal affirmed the trial court's order dismissing with prejudice plaintiffs' claims against defendants for breach of the implied covenant of good faith and fair dealing (bad faith claim) and violation of the Unfair Competition Law, Bus. & Prof. Code, section 17200 et seq. (UCL claim). The court concluded that an evaluation of the policy considerations underlying tort liability in the traditional insurance context demonstrates that home protection contracts are not sufficiently analogous to insurance to support the imposition of tort liability. Furthermore, the fact that the Insurance Code may regulate a company is not dispositive of whether that company should be subject to the same tort liability as traditional insurance companies. Rather, that issue is determined based on the policy considerations set forth in Cates Construction, Inc. v. Talbot Partners (1999) 21 Cal.4th 28, 43–44, and regardless of whether home protection companies are subject to certain Insurance Code regulations. The court also concluded that plaintiffs forfeited their judicial estoppel argument by failing to timely or adequately raise it in opposition to the demurrer. Finally, the court rejected plaintiffs' unfair competition claims, concluding that California Code of Regulations, title 10, section 2695.9 does not apply to defendant.

Medipro Medical Staffing, LLC v. Certified Nursing Registry, Inc.

Court: California Courts of Appeal

Docket: B305910(Second Appellate District)

Opinion Date: February 4, 2021

Judge: Brian M. Hoffstadt

Areas of Law: Business Law, Civil Procedure

By statute, a trial court has the discretion to appoint a receiver to aid in the collection of a judgment if doing so "is a reasonable method to obtain the fair and orderly satisfaction of the judgment." The Court of Appeal held that a trial court abuses that discretion if it appoints a receiver to aid in the collection of a money judgment where the record contains no evidence that the judgment debtors had obfuscated or frustrated the creditor's collection efforts and no evidence that less intrusive collection methods were inadequate or ineffective. The court reversed the trial court's order order appointing a receiver and its subsidiary injunction obligating the judgment debtors to cooperate with the receiver. In this case, the trial court abused its discretion in appointing a receiver to enforce Medipro's money judgment because there was no evidence—let alone the substantial evidence necessary to sustain a proper exercise of discretion—that Certified or Defendant Sy had engaged in obfuscation or other obstreperous conduct to the degree that the other collection mechanisms available under the Enforcement of Judgments Law were ineffective.

Wood v. U.S. Bank National Ass'n

Court: Delaware Court of Chancery

Docket: C.A. No. 2017-0034-JTL

Opinion Date: February 4, 2021

Judge: Laster

Areas of Law: Business Law, Civil Procedure

The Court of Chancery granted Plaintiffs' motion to compel the production of documents and denied Defendants' motion for a retroactive extension in the time to respond, holding that Defendants are required to product all documents responsive to the requests for production of documents within fourteen days. Through Heartland Family Group, LLC, Alexander Burns controlled Southport Lane, L.P. and its affiliates (the Southport Entities). Plaintiffs sued Burns and Heartland, arguing that certain transactions rendered two companies acquired by the Southport Entities insolvent. Plaintiffs served requests for production of documents on Defendants. In response, Defendants invoked the Fifth Amendment. Plaintiffs then moved to compel the production of documents and responses to interrogatories. Defendants moved for a retroactive extension. The Court of Chancery granted Plaintiffs' motion to compel and denied the motion for a retroactive extension, holding that Defendants' invocation of the Self-Incrimination Clause is overruled.

Hartman v. BigInch Fabricators & Construction Holding Co.

Court: Supreme Court of Indiana

Docket: 20S-PL-00618

Opinion Date: January 28, 2021

Judge: Loretta H. Rush

Areas of Law: Business Law

In this challenge to an appraiser's valuation of corporate shares, the Supreme Court held that the shareholder agreement's valuation term clearly contemplated a fair market valuation of the selling shareholder's shares. Plaintiff, who held a minority portion of the shares of BigInch Fabricators & Construction Holding Company, Inc., a closely held corporation, was terminated without cause. Applying a fair market value standard, an appraiser hired by BigInch discounted Plaintiff's shares for their lack of marketability and Plaintiff's lack of control. Plaintiff brought this action seeking a declaratory judgment that the discounts were inapplicable because the shareholder agreement did not contemplate a fair market value standard. The trial court granted summary judgment for BigInch. The Supreme Court affirmed, holding that the plain language of the shareholder agreement called for BigInch to pay Plaintiff the fair market value of his shares, and so a third-party appraiser could apply minority and marketability discounts.