Category Archives: Federal Decisions

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Water Splash Reveals a Glaring Omission in Wisconsin's Service-of-Process Rules, Which Ought To Be Fixed

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Today’s unanimous U.S. Supreme Court decision in Water Splash, Inc. v. Menon, 581 U.S. ___, No. 16-254, points out a glaring omission in Wisconsin’s service-of-process rules that ought to be fixed, so that Wisconsin plaintiffs are not unnecessarily put at a disadvantage when suing overseas defendants in state court. Justice Samuel Alito’s decision, reversing the … Continue reading this entry

Midland Funding Highlights Peculiar Feature of Wisconsin's Statute-of-Limitations Law

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The U.S. Supreme Court’s decision today in Midland Funding, LLC v. Johnson, 581 U.S. ___, No. 16-348, draws attention in passing to a peculiar feature of Wisconsin law on the effect of statutes of limitations. The 5-3 decision, in an opinion by Justice Stephen Breyer, holds that a debt collector that files a proof of … Continue reading this entry

A Softer, Gentler Seventh Circuit Reconsiders “Substantial Compliance” under Rule 11

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Those who practice regularly before the U.S. Court of Appeals for the Seventh Circuit know that the court has not been reluctant to punish a misbehaving lawyer. So the court’s recent decision in Riffner v. PNC Bank, No. 15-2142 (7th Cir. Mar. 10, 2017), might come as a bit of a surprise. Unlike (apparently) all … Continue reading this entry

Seventh Circuit Explains Disclosure of Hybrid Witnesses under Fed. R. Civ. P. 26(a)(2)(C)

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The Seventh Circuit’s recent decision in Indianapolis Airport Authority v. Travelers Property Casualty Co. of America, No. 16-2675 (7th Cir. Feb. 17, 2017), written by Judge David Hamilton, is one for civil litigators to take note of. It appears to be the first time the Seventh Circuit has used Federal Rule of Civil Procedure 26(a)(2)(C). … Continue reading this entry

Waiting for Gorsuch: SCOTUS Kicks Important Class-Action Waiver Case to Next Term

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Last week, the United States Supreme Court informed litigants in Epic Systems Corp. v. Lewis that it is pushing the case to its October 2017 term. The lawsuit, which rose up through the Western District of Wisconsin and the Seventh Circuit, presents the High Court with a chance to resolve a robust circuit split on … Continue reading this entry

Seventh Circuit Confirms that Parties Seeking Review of an Interlocutory Order Have 30 Days to Request a Rule 54(b) Judgment

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The rule of 28 U.S.C. § 1291 limits the appealability of district court orders to “final decisions.” Although an order resolving fewer than all claims of all parties is not a final decision for purposes of appeal, Rule 54(b), Fed. R. Civ. P., permits district courts to make such orders appealable by expressly determining that “there … Continue reading this entry

Simultaneous Decisions from the 7th Circuit: How the Later-Argued Case Became Binding Precedent

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The Seventh Circuit is very serious about treating its panel decisions as the “law of the court” unless and until they are overruled by the en banc court or a higher authority. Hence, its Circuit Rule 40(e) requires a panel that contemplates issuing an opinion that would overrule a prior decision or create a conflict … Continue reading this entry

Supreme Court Calls for the Views of the Solicitor General in a Case That the 7th Circuit Could Not Review En Banc

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Last summer, we wrote about a unique situation that arose in the case of Rubin v. Islamic Republic of Iran, No. 14-1935 (7th Cir. July 19, 2016), in which the Seventh Circuit found itself unable to assemble a “majority” of the judges in regular active service who were eligible to vote whether to rehear a case … Continue reading this entry

The Case of the Vanishing § 1292(b) Certification

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Nothing about the Seventh Circuit’s recent per curiam decision in Kenosha Unified School District No. 1 Board of Education v. Whitaker, No. 16-8019 (7th Cir. Nov. 14, 2016), could be considered much of a mystery, but file the case away as something you don’t see often. It answers the question of what happens to the … Continue reading this entry

Seventh Circuit Recognizes “Substantial Truthfulness” Defense to Tortious Interference Claims under Wisconsin Law

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As we wrap up another election cycle that has kept “fact checkers” working overtime analyzing the many dubious claims by candidates of all political persuasions, the Seventh Circuit has issued a decision that reminds us of the value of the truth—at least insofar as it concerns truth (or “substantial truthfulness” in this case) as a … Continue reading this entry

Seventh Circuit Determines that Service-of-Suit Clauses Can Waive Statutory Right of Removal

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Pine Top Receivables has returned to the published opinions of the U.S. Court of Appeals for the Seventh Circuit. We previously wrote about Pine Top’s successful attempt to compel arbitration with a Uruguayan company and the intersection of the Federal Arbitration Act and the Panama Convention. Pine Top was again before the Seventh Circuit in … Continue reading this entry

Coming Up Short: When There Aren't Enough Judges Eligible To Rehear A Case En Banc

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Every now and then we see something in the reported decisions of the U.S. Court of Appeals for the Seventh Circuit that seems noteworthy because we’ve never seen it before. The following is one such example. Seventh Circuit Rule 40(e) is entitled “Rehearing Sua Sponte before Decision,” and it provides, in relevant part, that a … Continue reading this entry

Seventh Circuit Reverses Promotional Service Decision Under the Robinson-Patman Act

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On August 12, 2016, the Seventh Circuit decided Woodman’s Food Market, Inc. v. Clorox Co., No. 15-3001, and held that Clorox’s refusal to sell bulk-sized packages of certain products to some retailers, like Woodman’s, when it sold bulk-sized items to “big box” retailers, like Costco and Sam’s Club, was not a violation of the Robinson-Patman … Continue reading this entry

Seventh Circuit Ditches “Convincing Mosaic” Standard in Employment Cases

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In the past, we have counseled our clients on steps they can take to avoid creating a “convincing mosaic” of employment discrimination. The Seventh Circuit Court of Appeals first discussed the convincing mosaic of discrimination more than 20 years ago as a metaphor to explain one way that an employee could combine lots of different … Continue reading this entry

Seventh Circuit Cuts Through First Amendment Forum Jargon and Issues Robust Defense of Free Expression

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Like many cities across the country, Fort Wayne, Indiana raises money through advertisements that it sells on the inside and outside of the buses it operates. And like many cities, Fort Wayne has a number of regulations on the content of those ads. Most of these regulations are uncontroversial – think of prohibitions on images … Continue reading this entry

The Seventh Circuit Empowers Litigants to Revisit Class Definitions

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Class actions, and Rule 23 of the Federal Rules of Civil Procedure, have long been rife with controversy. It’s safe to assume that the Seventh Circuit’s decision last week in Fonder v. Sheriff of Kankakee Cnty., No. 15-2905 (7th Cir. May 26, 2016), will likely garner mixed reviews from the bar. Fonder is a reminder … Continue reading this entry

Seventh Circuit Rejects Plaintiffs’ Chain-of-Causation Theory of Personal Jurisdiction

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Although spring-break season is officially over, a recent Seventh Circuit decision offers a lesson to vacationers: When choosing your next vacation destination, make sure it’s somewhere you would be willing to visit again. You might need to litigate there. In Noboa v. Barceló Corporación Empresarial, SA, 812 F.3d 571 (7th Cir. 2016), the Seventh Circuit … Continue reading this entry

Beware the Scrollable Window: The Seventh Circuit Strikes Down an Internet Contract

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If you’re like us—and most others, we’ll venture to guess—you’ve never read all the terms and conditions of the iTunes end-user license agreement. We doubt that it’s a scintillating read, but, regardless, most consumers don’t slog through these contractual tomes because they have better things to do. Apple and others in the world of e-commerce … Continue reading this entry

Seventh Circuit Reinforces the Importance of Memorializing Agreements in Mediation

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Put it in writing. How many times have those four words been uttered in the course of commerce? Many more than we care to count, to be sure. For the fact remains that the act of putting pen to paper, ribbon to page, or transmitting bits in a particular fashion (the complicated subsurface of modern … Continue reading this entry

Seventh Circuit Applies Strong Business Judgment Rule to Reject Assertion of Demand Futility

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In a recent decision in a diversity case, the Seventh Circuit deferred to a state legislature’s “strongly pro-management version of the business judgment rule,” rejecting a derivative claim filed by shareholders in an Indiana corporation who had failed to make a demand on the corporation’s board of directors. In re: Biglari Holdings, Inc. Shareholder Derivative … Continue reading this entry

In re Sentinel Management: The Seventh Circuit Considers Equitable Subordination

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Equitable subordination in bankruptcy can be a powerful tool, providing a court with considerable latitude to set things right insofar as the estates of the penniless and the rights of their creditors are concerned. But it’s also a doctrine more frequently discussed than applied (even 11 U.S.C. § 510(c)(1), the statute authorizing the remedy’s use, offers … Continue reading this entry

The Assignment of Visiting Federal Judges, and a Little Wisconsin Judicial History

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A decision from the U.S. Court of Appeals for the D.C. Circuit earlier this month, Wrenn v. District of Columbia, D.C. Cir. No. 15-7057, is a reminder of the crucial importance of crossing t’s and dotting i’s when it comes to the temporary assignment of federal judges to hold court outside their own districts. This … Continue reading this entry

Seventh Circuit Reins in EEOC: Agency Cannot Bypass Conciliation Requirement

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On December 17, the Seventh Circuit in U.S. Equal Employment Opportunity Commission v. CVS Pharmacy, Inc., No. 14-3653 (7th Cir. Dec. 17, 2015), rejected the EEOC’s aggressive effort to sue an employer without engaging in conciliation or even alleging discrimination or retaliation. Employers—at least in Wisconsin, Illinois, and Indiana—can breathe a little easier now that … Continue reading this entry