Beware of Unguarded Talk: A Cautionary Tale of Privilege Waiver in Wisconsin

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Loose lips sink ships.

And, at least according to the Wisconsin Court of Appeals, they can sink the protections afforded to privileged communications.

A decision last week in a criminal case could have considerable effect on a client’s waiver of the attorney-client privilege, in civil as well as criminal cases.

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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 reminds litigants that the proper focus of the “minimum contacts” inquiry for specific jurisdiction depends on the defendant’s intentional contacts with the forum jurisdiction. In affirming the district court’s dismissal for lack of personal jurisdiction, the Court rejected the plaintiffs’ “chain-of-causation theory,” which fundamentally relied upon the plaintiffs’ own contacts with the forum state, rather than any accident-related contacts of the defendants.

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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 know this, but they need to rely on some form of contract for their services, so the struggle begins to create a binding contract (where a purchaser “receives reasonable notice of those terms”) when the purchaser doesn’t devote the time or attention to reading the essential terms.

The Seventh Circuit’s recent decision in Sgouros v. TransUnion Corp., No. 15-1371 (7th Cir. March 25, 2016), decided under Illinois law, is a cautionary tale for those that operate in this digital realm. The court declined to enforce an arbitration provision because that term was buried at the bottom of a scrollable window (and not immediately visible on the page), with no prompt directing the user to scroll to the bottom. Chief Judge Diane Wood wrote for the court, in an instructive opinion that included screenshots from TransUnion’s webpage.

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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 technology foils us here), all to memorialize the meeting of the minds, is a significant—and consequential—step.

That is the essence of the Seventh Circuit’s decision in Beverly v. Abbott Laboratories, No. 15-1098 (7th Cir. Mar. 16, 2016), a case in which the court upheld the district court’s decision to enforce a handwritten agreement reached in mediation. Judge Ann Claire Williams wrote for the court. The case, decided under Illinois law, is a notable exhibition of the court’s pro-enforcement attitude on these issues.

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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 Litigation, No. 15-1828 (Feb. 17, 2016). The case is instructive for Wisconsin practitioners as to the Seventh Circuit’s deference to the business judgment rule embodied in many states’ corporations statutes. As emphasized in our Supreme Court’s decision in Data Key Partners v. Permira Advisers LLC, 2014 WI 86, Wisconsin, too, has a strong business judgment rule, see Wis. Stat. § 180.0828(1). And, like Indiana, Wisconsin looks for guidance to Delaware corporate-governance law when applying it.

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