Wis. Supreme Court Applies the Discovery Rule to Accrual of Wrongful Death Claims


Yesterday, Wisconsin’s supreme court decided that the discovery rule—that is, the rule that a tort claim for which the legislature has provided no other rule “accrues” for statute-of-limitations purposes when the plaintiff discovers both his injury and the identity of the tortfeasor—applies to statutes of limitations for both wrongful death (belonging to close relatives to compensate them for their own losses) and survival (belonging to the decedents and passing to their estates) actions. Christ v. Exxon Mobil, 2015 WI 58.

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Did Justice Thomas Foreshadow the Downfall of Obamacare in Baker Botts?


By no means do we think that we might reliably predict the outcome of such a politically charged case as King v. Burwell, No. 14-114, the latest challenge to the Affordable Care Act.

But for those who like to read tea leaves from the Supreme Court, section III.B.2 of the Court’s decision (released yesterday) in Baker Botts LLP v. Asarco LLC, No. 14-103, might be worth paying attention to. The upshot of Baker Botts is that the law firm could not recover attorneys’  fees incurred in defending its fee application in bankruptcy because § 330(a)(1) of the Bankruptcy Code does not authorize bankruptcy courts to award fees for defending fee applications.

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Seventh Circuit Says Violations of Wisconsin’s Theft-by-Contractor Statute Are Not Dischargeable in Bankruptcy


The Bankruptcy Code prevents an individual debtor from discharging certain debts, including, upon request of the creditor, debts for “fraud or defalcation while acting in a fiduciary capacity.” 11 U.S.C. § 523(a)(4). The Seventh Circuit recently confirmed in Stoughton Lumber Co., Inc. v. Sveum, No. 14-3339 (June 4, 2015), that a contractor’s debt for misappropriation of funds that are to be held in trust for subcontractors may be non-dischargeable under the Code if the misappropriation is intentional.

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The ECF System Ate My Homework: Seventh Circuit Pardons Tardy Lawyer


Can a complaint be “filed” before the “filing process” is completed? Actually, yes, according to Farley v. Koepp, No. 14-1695, a recent decision from the Seventh Circuit written by Judge Sykes.

Here is the scene: Late on a Friday afternoon (as all these sort of stories begin), an attorney’s assistant emails a complaint to the clerk’s office in the Southern District of Illinois, thus complying with the first step of the local rule. (Filers in that court could not open new cases on CM/ECF on their own at the time.) The clerk responds after 5 p.m., informing the filer that the CM/ECF case file is available for uploading the complaint. On the following Monday, the assistant attempts to upload the complaint electronically, but she fails to do so, reporting that “complications arose concerning the electronic payment of the filing fee.” Regardless of those complications, the last day to file the complaint within the limitations period was Monday (of course, it was), and the district court dismisses the case, ruling that the complaint, filed finally on Tuesday, was untimely.

The Seventh Circuit reversed—and, in the process, provided a bit of a lesson to all those who file complaints electronically.

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Wisconsin Supreme Court Accepts New Cases: Occurrences, 12% Interest, and Donning and Doffing


Last Friday, Wisconsin’s supreme court announced that it had accepted seven new cases. Three of them are of particular interest to Wisconsin businesses.

In Wis. Pharmacal Co. v. Nebraska Cultures of Cal., 2013AP613/687, the court of appeals addressed whether the negligent provision of an ingredient to a probiotic manufacturer constituted an “occurrence” under a CGL policy. The court of appeals held that there was coverage. In our post, we warned that, “[b]arring review by the supreme court, the court’s detailed discussion of the CGL policies will have broad ramifications in future disputes between suppliers and manufacturers.” Apparently the supreme court thinks it necessary to weigh in. The court will take up three issues related to CGL policy interpretation: the grant of coverage, the definition of “occurrence,” and a “business risk” exclusion.

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