West Virginia Business Litigation Blog

West Virginia Business Litigation Blog

Developments in Business & Commercial Litigation

Revised Rules of Appellate Procedure in Effect at WV Supreme Court

Posted in Appeals

Yesterday was the first day for arguments before the Supreme Court of Appeals of West Virginia under the Revised Rules of Appellate Procedure that went into effect on December 1, 2010. The revised rules govern appeals from final judgments entered by a circuit court on or after December 1, 2010 and petitions for extraordinary relief filed with the Supreme Court on or after December 1, 2010.

If you look at the Court’s docket, you will see some of the changes effected by the revised rules. First, the Court now indicates whether an appeal is argued under Rule 19 (appeals that involve, for example, an allegation that the trial court abused its discretion or erred in applying settled law) or Rule 20 (appeals that involve, for example, cases of first impression or cases involving questions of public policy).

Next, appeals are allotted amounts of time, typically 10 minutes per side

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WV Supreme Court Approves Revised Rules of Appellate Procedure

Posted in Appeals

Supreme Court of Appeals of West Virginia Chief Justice Robin Davis announced yesterday that the Court has issued its final version of the Revised Rules of Appellate Procedure

Here is a press release from the Court’s public information officer summarizing some of the rules’ more significant changes, and here is information on the revised rules from the Court’s website with links to the order approving the revised rules and the revised rules themselves. 

The revised rules become effective on December 1, 2010 as described on the website:

Pursuant to Revised Rule 1(d), the Revised Rules "shall be applicable to all certified questions and appeals arising from rulings, orders or judgments entered on or after December 1, 2010, and to original jurisdiction proceedings in the Supreme Court of Appeals filed on or after December 1, 2010. In cases arising from orders entered prior to

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WV Supreme Court Justice Recuses from Medical Malpractice Appeal

Posted in Appeals

Last week, I wrote about Supreme Court of Appeals Justice Menis Ketchum’s refusal to recuse himself from MacDonald v. City Hospital, Inc., an appeal regarding the constitutionality of damages caps in a medical malpractice case, even though he had stated during his 2008 campaign that he would not vote to change, modify, or overturn the caps. The Blog of Legal Times wrote this post about Justice Ketchum’s decision.

At the beginning of this week, Justice Ketchum changed his mind and decided to recuse himself from the appeal. But what is more interesting than his decision is that he blamed The BLT and the plaintiffs’ lawyers for creating the situation that required his recusal. Here are Justice Ketchum’s memorandum explaining his decision, which referenced The BLT’s post about his original refusal to recuse himself, and the Court’s order reflecting his recusal.

Here is The BLT’s post from Monday addressing

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Recusal Redux at WV Supreme Court

Posted in Courts

Here we go again. Another recusal controversy has developed at the Supreme Court of Appeals of West Virginia. But unlike Caperton v. A. T. Massey Coal Co., Inc., 129 S. Ct. 2252 (2010) , in which the Supreme Court of the United States held that due process required a Supreme Court of Appeals justice to recuse himself when the CEO of the corporation appearing before him contributed $3 million to his campaign, the basis for the recusal in MacDonald v. City Hospital, Inc. (No. 35543) is statements made by Justice Menis Ketchum when he was a candidate for the court.

The Blog of Legal Times posted today about Justice Ketchum’s refusal to recuse himself from MacDonald, which challenges the constitutionality of the West Virginia Medical Professional Liability Act’s $500,000 cap on non-economic damages for the most serious medical malpractice cases. A jury awarded James MacDonald $129,000 for medical expenses and

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VA Approved Prudential’s Use of Retained-Asset Accounts

Posted in Insurance

The scandal over Prudential’s use of retained-asset accounts to pay life insurance proceeds to beneficiaries of deceased service members has now reached the Department of Veterans Affairs. David Evans of Bloomberg.com reported on Monday that in 1999, Prudential reached a verbal agreement with the VA that permitted Prudential to amend its original contract with the VA from 1965, and use retained-asset accounts to pay life insurance proceeds to beneficiaries of deceased service members. The 1965 contract, as well as a revised version in 2007, had required Prudential to make lump-sum payments to those beneficiaries who requested them. 

The amendment was finally memorialized on September 24, 2009, and was made retroactive to September 1, 2009, not 1999, when the parties first reached their verbal agreement. But both the 1965 contract and the 2009 amendment required Prudential to adhere to the original terms of the contract until 2009.

The unorthodox way that the

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Check Out The Write Lawyer

Posted in Uncategorized

I am happy to announce that I have started another blog called The Write Lawyer, which is live as of today.

It reflects another area of interest of mine, and has a different look and feel than this blog. I anticipate bringing it under the LexBlog umbrella soon, but for now, I hope that you will visit it often and share your comments and questions.

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Bank Analyst Wins the Battle, But Loses the War

Posted in Corporations

A couple of years ago, I posted about the lawsuit filed by BankAtlantic and its holding company against Richard Bove, and his employer, Ladenburg Thalmann & Co., Inc. The lawsuit was based on Bove’s report entitled "Who Is Next?", which ranked 107 bank companies from riskiest to least risky, using two financial ratios as benchmarks on two different lists. BankAtlantic Bancorp., the holding company that controls BankAtlantic, was 10th on one list, and 12th on the other.

Bove is back in the news, courtesy of a story in today’s New York Times entitled "The Loneliest Analyst," which, from its title, gives a pretty good idea of his status, and discusses his travails since the lawsuit was filed.

The good news for Bove is that the suit was settled three months ago and that he paid nothing to the plaintiffs. But the bad news is that his former employer — he quit in February

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Plaintiffs in Class Action Expand Allegations Against Prudential

Posted in Insurance

As reported by Bloomberg.com‘s Carla Main, the plaintiffs in Lucey v. Prudential Ins. Co. of America filed an amended complaint last Monday. Here is my post describing the original complaint. In addition to reflecting the addition of new co-counsel, the amended complaint adds several representative plaintiffs and is much more detailed in its allegations and includes the following introduction:

Congress created group life insurance programs for military servicemembers, veterans, and their families to provide special protection for their beneficiaries in partial compensation for the extraordinary sacrifice these individuals make for our country. Since 1965, Prudential Insurance Company of America ("Prudential") has been trusted to sell these policies, earn the premiums taken from servicemembers; paychecks, and pay beneficiaries when tragedy strikes. It was recently revealed, however, that Prudential has been abusing that trust by failing to pay the benefits in a lump sum as required by federal

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Appeals Court Affirms Injunction Against Executive’s New Position (Which May Not Matter Anyway)

Posted in Appellate Decisions

In June, I read this AP story by Maryclaire Dale about an unfair competition lawsuit filed by Bimbo Bakeries USA, better known as the maker of Thomas’ English Muffins – the “nooks and crannies” muffin – against its former executive, Chris Botticella, who had accepted a position with Hostess Brands, Inc., which makes baked goods under several brands, including Hostess, Wonder Bread, and Drake’s (popularized in a 1992 Seinfeld episode)

Bimbo (sorry, but that’s the plaintiff’s name) wanted to prevent Botticella, who was one of only seven executives with the knowledge necessary to make the muffins, from going to work for Hostess. Bimbo earns $500 million per year in sales from Thomas’ English muffins, so the recipe, and its potential loss to Bimbo, clearly has tangible value.

I thought the case was an interesting example of litigation that typically can be fairly abstract — who can’t relate to nooks and crannies? Anyway, I lost track of the lawsuit until last week, when I read that the Third Circuit Court of Appeals had issued an opinion affirming the district court’s grant of an injunction that prevents Botticella from working for Hostess, at least pending the outcome of the trial on Bimbo’s claims. Bimbo Bakeries USA, Inc. v. Botticella, 2010 WL 2902729 (3rd. Cir., July 26, 2010).

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NY Attorney General Expands Investigation into Retained-Asset Accounts

Posted in Insurance

I’m finishing up a post about an interesting decision last week from the Third Circuit Court of Appeals regarding trade secrets, but in the meantime, I wanted to note this item from today’s Insurance Law 360 (subscription required) that New York State Attorney General Andrew Cuomo has expanded his investigation into retained-asset accounts and subpoenaed records from six other insurance companies, including Genworth Financial, Inc., Guardian Life of America, and Axa SA’s Mony Life Insurance Company.

David Evans, whose story last week exposed MetLife and Prudential’s use of retained-asset accounts, has identified the other companies receiving subpoenas as Unum Group, New York Life Insurance Company, and Northwestern Mutual Life Insurance Company.

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