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Litigation

Arkansas Business Litigation Blog

Arkansas business law and 8th U.S. Circuit Court of Appeals developments in intellectual property (patent, trademark, copyright, trade secrets and covenants not to compete).
By H. William Allen et al.

Post Frequency: 10.8/day

Last Entry: December 31, 2009 at 16:54:02

Preliminary Injunction Affirmed Based on Noncompete Agreement but not Trade Secrets

Posted on May 01, 2008
The Arkansas Court of Appeals affirmed a preliminary injunction in Freeman v. Brown Hiller, Inc., No. 07-717 (4/2/08). Freeman was an insurance agent for BHC. She signed a limited noncompete agreement that prohibited her from soliciting BHC customers for a period of 2 years after her employment ended...

Candy Bouquet Files Arkansas Trademark Infringement Lawsuit

Posted on April 30, 2008
Candy Bouquet has filed a trademark infringement action against one of its former franchisees. Candy Bouquet International, Inc. v. McClendon, No. 08-340 (E.D. Ark., filed 4/ 17/08). According to the complaint, McClendon owned three Candy Boutique franchises...

LaserAim Files Arkansas Patent Infringement Lawsuit

Posted on April 30, 2008
LaserAim has filed a declaratory judgment action in LaserAim Tools, Inc. v. SDA Manufacturing, LLC, No. 08-329 (E.D. Ark., filed 4/9/08). The complaint alleges that LaserAim had developed products that SDA should have disclosed in its application. The lawsuit seeks a declaration that SDA's patent is invalid.

Vestcom Files Declaration of no Patent Infringement in Arkansas

Posted on April 30, 2008
Vestcom has filed a declaratory judgment of no patent infringement in Vestcom International, Inc. v. Information Planning and Management Service, Inc., No. 08-276 (E.D. Ark., filed 4/2/08). Vestcom provides shelf strips to Sears. According to the complaint, IPMS told Sears it holds a patent on the strips...

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A Practitioner's Note on Arkansas's No-Citation Rule, Highlighted by Today's Decision in Dodson

Posted on April 10, 2008
Today's per curiam in Dodson v. Norris highlights a textual subtlety of Rule 5-2: the plain text of the rule does not bar citation of unpublished decisions from other jurisdictions. Rule 5-2 of the Supreme Court and Court of Appeals of Arkansas states, in pertinent part (emphasis supplied): Opinions of the court of appeals not designated for publication shall not be published in the Arkansas Reports and shall not be cited, quoted or referred to by any court or in any argument, brief, or other materials presented to any court (except in continuing or related litigation upon an issue such as res judicata, collateral estoppel, or law of the case)...

Arkansas Supreme Court, Having Recently Declined to Abolish its No-Citation Rule, Bars Litigant From Citing Unpublished Opinions

Posted on April 10, 2008
The Arkansas Supreme Court recently decided not to abolish its no-citation rule. The rule is contained in Arkansas Supreme Court Rule 5-2 and bars litigants from citing any unpublished decision of the Arkansas Court of Appeals in a brief filed in the Arkansas appellate courts...

Objector's Failed Intervention Prevents Arkansas Supreme Court Review of State-Court Coupon Settlement

Posted on April 10, 2008
After receiving notice of a pending coupon settlement in a class action against Little-Rock based cellular service provider Alltel, Frank DeJulius attempted to intervene in the action and object to the settlement. He did not, however, opt out of the settlement...

Chief Justice Hannah Dissents From United States Supreme Court's Medtronic Decision in His Despain Concurrence

Posted on April 10, 2008
Chief Justice Jim Hannah's concurrence in Despain v. Bradburn is also a ringing dissent from the United States Supreme Court's holding in Riegel v. Medtronic. Chief Justice Hannah's concurrence is consistent with but, perhaps, more vigorous than Justice Ginsburg's Medtronic dissent, which expressed concern that the majority's decision "cut[s] deeply into a domain historically occupied by state law...

Arkansas Supreme Court Reverses Despain In Wake of Reigel v. Medtronic

Posted on April 10, 2008
The Arkansas Supreme Court reversed itself in light of a recent decision of the United States Supreme Court in Despain v. Bradburn, No. 07-714. The Court held in an earlier decision that "that the Medical Device Amendment (MDA) to the federal Food, Drug, and Cosmetic Act did not preempt a state-law tort claim filed against the manufacturer of a medical device...

Sensient Technologies Wins Temporary Restraining Order for Trademark Infringement

Posted on March 28, 2008
The Eastern District of Missouri granted a temporary restraining order based on trademark infringement in Sensient Technologies Corp. v. SensoryFlavors, Inc., 2008 WL 762092 (E.D. Mo. 3/21/08). Sensient Technologies is the corporate umbrella that used to be Universal Foods Corporation...

Noncompete Agreements May Need to be Adjusted as Business Lines Expand

Posted on March 21, 2008
The district court of South Dakota denied a preliminary injunction in Universal Underwriters Ins. Co. v. Schmidt, 2008 WL 631197 (D.S.D. 3/6/08). Schmidt was an employee of Universal selling property, casualty and life insurance products to automobile dealers...

Trademark Infringement Case Dismissed as Exception to First-Filed Rule

Posted on March 20, 2008
The Western District of Missouri dismissed a declaratory action claiming no trademark infringement in Sustainable Community Development, LLC v. EMRO USA, Inc., 2008 WL 495603 (W.D. Mo. 2/20/08). The parties have an interesting history. SCD filed suit in 2005, which the parties eventually settled...

Court of Appeals Unceremoniously Rejects Two Common Arguments Against Default Judgments

Posted on March 12, 2008
The Court of Appeals affirmed a default judgment against an insurance company in Aegis Insurance Company v. Robertson, No. CA-07-872. The case started out commonly enough: the plaintiff filed suit in Benton County. "After receipt of service, counsel for appellant ...

Follow the Procedures You Write in Your Contract

Posted on March 08, 2008
The Arkansas Court of Appeals affirmed the trial court's decision in Glenn Mechanical, Inc. v. South Arkansas Regional Health Center, Inc., No. 06-1473 (3/5/08). Glenn obtained a contract to perform dirt work at SARHC. Glenn insisted on writing the contract, which provided that any work changes could only be performed with a written amendment...

Case Dismissed Because Statute of Limitations Had Run

Posted on March 07, 2008
The Arkansas Court of Appeals affirmed dismissal in Bibbs v. Community Bank, No. 07-808 (3/5/08). The plaintiffs defaulted on a loan to Community Bank. The bank sued for foreclosure in 2003, and the plaintiffs filed for bankruptcy. In 2005, they filed this action claiming the bank's misconduct forced them into bankruptcy...

Order Granting Summary Judgment Against One Defendant Out of Seven Not a Final Order, Court of Appeals Holds

Posted on March 07, 2008
The appellants in Castleberry v. Fohn, No. CA07-1040, a Ouachita County medical malpractice case, fell victim to the final order rule when the Arkansas Court of Appeals dismissed their case. The plaintiff, Donald Castleberry, who was suing on behalf of the estate of Bobby L...

Arkansas Supreme Court Holds Defective Workmanship Not an "Accident" Constitutiing an Occurrence Under a Commercial General Liability Insurance Policy

Posted on March 07, 2008
The Arkansas Supreme Court answered a question certified to it by Judge J. Leon Holmes of the Eastern District of Arkansas, in Essex Insurance Company v. John Holder et al., No 07-803. Tom and Kara Baumgartner contracted with J&H Enterprises to build their new home...

Dardanelle Case Against Russellville Dismissed Because a Joint Resolution is not a Contract

Posted on March 03, 2008
The Arkansas Supreme Court affirmed dismissal in City of Dardanelle v. City of Russellville, No. 07-195 (2/28/08). This case involves a long-standing dispute about where Russellville can build a sewage pipeline. They originally chose a location near Dardanelle City Park...

An Electronic Filing Pilot Program for the Arkansas Appellate Courts

Posted on February 29, 2008
The Arkansas appellate courts are starting a electronic filing pilot program. According to the standards document, briefs are to be submitted in searchable PDF formate (except for the addendum) and cannot have "live" links to other parts of the pdf or the Internet in them...

Class Certification in Usury Case Brought by Second Mortgagees Against Trusts Affirmed

Posted on February 29, 2008
The Arkansas Supreme Court affirmed Greene County Judge David Burnett's class certification decision in Firstplus Home Loan Owner 1997-1, et al. v. Bryant, No. 07-740. The plaintiffs are consumers who took out promissory notes secured second mortgages on their homes...

Express Scripts May be Short-Lived in Light of Recent Supreme Court Decision

Posted on February 29, 2008
Thanks to Mac Golden for pointing us to Preston v. Ferrer, 552 U.S. __ (2008), which probably invalidates the Eighth Circuit's recent decision, Express Scripts v. Aegon Direct Marketing Services, Inc., (previously posted 2/20/08). Ferrer is television's Judge Alex; Preston is an attorney who provided professional services to Ferrer...

What is the Procedure For Supplementing a Summary Judgment Response After the Reply is Filed but Before the 14-Day Limit?

Posted on February 28, 2008
The Arkansas Court of Appeals affirmed summary judgment in Neal v. Farris, No. 07-839 (2/27/08). his case concerns a dispute about summary judgment procedure. As we all know, the nonmovant has 21 days to respond, and then the movant has 14 days to file a reply...

eBay Files Arkansas Patent Infringement Lawsuit

Posted on February 27, 2008
eBay filed a patent infringement lawsuit in the Western District of Arkansas. eBay, Inc. v. IDT Corp., No. 08-4015 (filed 2/20/08). According to the Complaint, eBay holds the patent for a long distance telephone communication system. The Complaint alleges IDT is infringing this patent, particularly through its PennyTalk calling cards.

Removing Digital Watermark is Anticircumvention Violation

Posted on February 27, 2008
A pro se plaintiff obtained judgment for copyright infringement and anticircumvention violations in Gregerson v. Vilana Financial, Inc., 2008 WL 451060 (D. Minn. 2/15/08) (previously posted here 9/12/07 and here 1/31/07). Vilana copied two of Gregerson's photographs, and the court had previously granted him summary judgment as to copyright infringement liability...

Insurance Judgment Reversed Because There was no Substantial Evidence to Support the Jury Verdict

Posted on February 21, 2008
The Arkansas Court of Appeals reversed judgment in Farm Bureau Mut. Ins. Co. of Am. v. Nowlin, No. 06-1053 (2/20/08). Nowlin took ownership of his deceased mother's home and had it insured by Farm Bureau. The home was destroyed by fire in May 2003...

Default Judgment Reversed Because of Procedural Error

Posted on February 21, 2008
The Arkansas Court of Appeals reversed a grant of default judgment in Brooks v. Farmers Bank and Trust Co., No. 07-694 (2/20/08). Farmers Bank properly served Brooks with the complaint, but he failed to answer. The bank did not move for default judgment, but there was a "hearing on the Bank's complaint" (we're not sure what that is)...

Court Commends Professionalism of Counsel in Trade Secret Dispute

Posted on February 20, 2008
The Southern District of Iowa entered judgment after jury trial in a trade secret misappropriation case. C Plus Northwest, Inc. v. DeGroot, 2008 WL 391271 (S.D. Iowa 2/14/08). The facts of the case are not particularly exceptional. Mr. Sjogren owned C Plus; defendants were key employees...

Jury Will Determine if Trademark License Creates Franchise Under Arkansas Franchise Practices Act

Posted on February 20, 2008
The Eastern District of Arkansas denied cross motions for summary judgment in Otto Dental Supply, Inc. v. Kerr Corp., 2008 WL 410630 (E.D. Ark. 2/13/08). For 25 years, Otto Dental was an authorized dealer of Kerr, using Kerr's trademarks to market and sell its goods...

Eighth Circuit Holds That Arbitrability Must be Determined by the Court Unless Contract States Otherwise

Posted on February 20, 2008
The Eighth Circuit affirmed a denial of a motion to dismiss pending arbitration in Express Scripts, Inc. v. Aegon Direct Marketing Services, Inc., No. 07-1971 (2/13/08). This is a long post, but this case has two important points for the validity of arbitration clauses in the Eighth Circuit...

CenterPoint Energy Gets Writ of Mandamus and Writ of Prohibition to Enforce Supreme Court's Order

Posted on February 18, 2008
The Arkansas Supreme Court granted a writ of mandamus and writ of prohibition in CenterPoint Energy, Inc. v. Miller County Circuit Court, No. 07-924 (2/14/08). In a class action against CenterPoint, the named plaintiffs were an Arkansas plaintiff (Johnson) and a Texas plaintiff (Engledowl)...

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