Northwest Business Litigation

Oregon Court of Appeals on pleading prejudgment interest

A plaintiff is entitled to recover prejudgment interest -- i.e., interest accruing through the date judgment is entered -- if plaintiff can prove the exact amount claimed to be due by defendant, and the dates during which plaintiff was deprived of use of that sum.  

In Oregon state court there is an additional procedural hurdle to recovering prejudgment interest:  plaintiff must both request interest in the prayer of the complaint, and plead facts sufficient to show an entitlement to prejudgment interest.  Today in Tasaki v. Moriarty, the Oregon Court of Appeals reiterated that longstanding pleading rule, and held that plaintiff met the pleading standard even though the prayer in the complaint didn't mention prejudgment interest, but simply prayed for $25,000 "together with any interest accumulated on such sum."

Ninth Circuit: No jury trial and no money damages for ADA retaliation claim

In a case decided earlier this month, the Ninth Circuit held that a plaintiff claiming retailiation under the Americans with Disabilities Act is limited to equitable remedies.  In Alvarado v. Cajun Operating Co., plaintiff filed several claims against his former employer, including a claim for retaliation under the ADA.  Defendant immediately moved the court to bar plaintiff from seeking a jury trial or compensatory or punitive damages for his retaliation claim.  The district court granted the motion and the Ninth Circuit affirmed.

Remedies under the ADA are provided by the statute itself, and through the remedies assigned to it by the more general Civil Rights Act, 42 USC sec. 1981(a).  The Ninth Circuit noted that amendments to the Civil Rights Act extended compensatory and punitive damages to certain claims under the ADA, not including retaliation.  Relying on the plain language of the ADA and the exclusion of retaliation claims from those specified in the Civil Rights Act, the Ninth Circuit concluded that plaintiffs continue to be limited to equitable relief for retaliation claims. 

COBRA Subsidy Extended

Today the President signed an extension to the COBRA subsidy (see pages 64-65 regarding section 1010) previously approved by Congress in a rare Saturday session.  The new law extends the eligibility period for the COBRA premium subsidy for an additional two months (through Feb. 28, 2010) and the maximum period for receiving the subsidy for an additional six months (from nine to 15 months).  One immediate effect is to provide eligibility for December terminations that cause a loss of health plan coverage on January 1, which under the previous statute were not eligible for the subsidy. 

Subsidy recipients who had reached the end of the subsidy period before the legislation extended it to 15 months will have additional time to pay the reduced premiums related to the extension.  To continue their coverage they must pay the 35% of premium costs by February 17, 2010 or, if later, 30 days after notice of the extension is provided by the plan administrator.

COBRA Administrators now have some immediate tasks:

(1) For December terminations, provide a new subsidy notice that incorporates the new provisions.

(2) For COBRA beneficiaries that lost subsidy eligibility at the end of November, provide information regarding the extension of the subsidy period through June 30, 2010 (subject to earlier termination for loss of COBRA eligibility).

(3) Update COBRA subsidy Notice forms to reflect the extensions of the eligibility period and the subsidy period for use with future terminated employees.

Cameras will be allowed in federal district courts in the Ninth Circuit

Ninth Circuit Chief Judge Alex Kozinski yesterday announced that, for the first time, video recordings will be allowed in the district courts within the circuit.  Criminal cases and jury trials will be excluded from the experimental program.  Chief judges of each district will select cases to be recorded, and will report on their experiences to the Judicial Council of the Ninth Circuit. 

Cost of repair fails as measure of fraud damages, Oregon Court of Appeals holds

The wrong measure of damages sunk a claim for fraud in a case decided yesterday by the Oregon Court of Appeals.  In Morasch v. Hood, the plaintiffs alleged fraud in connection with defendants' sale of real property to plaintiffs.  Plaintiffs offered evidence of the cost of repairing or altering the property to bring it into conformity with defendants' representations, and the jury used that evidence to award damages to plaintiffs.  On appeal, defendants disputed whether the cost to repair is the proper measure of damages. 

The Court of Appeals held that the "out-of-pocket" damages rule applies, which means that plaintiff must show the difference between the purchase price and the fair market value on the date of sale.  And the fair market value is the value it would have had if defendants hadn't misrepresented the property.  Because plaintiff failed to show the value the property would have had if defendants had told the truth, the jury was unable to apply the correct measure of damages, and its verdict was properly vacated.

Supreme Court limits review of attorney-client privilege orders

The U.S. Supreme Court today held that a court's order compelling production of confidential information based on a waiver of the attorney-client privilege is not immediately appealable.  As a result, a party seeking to protect privileged material in federal court may have to wait until after entry of judgment to obtain appellate review.

In Mohawk Industries, Inc. v. Carpenter, a former employee of Mohawk sued for wrongful termination and sought production of documents relating to a meeting he had with the company's lawyers.  The District Court ordered production based on what it concluded was Mohawk's waiver of the privilege.  When the court declined to certify the order for interlocutory appeal, the company filed an appeal under 28 USC sec. 1291, which gives the Courts of Appeal jurisdiction of final judgments and a limited class of prejudgment orders.  The Supreme Court, citing the federal courts' preference for a "single appeal" in each case, agreed that the order compelling production of confidential material is not among those entitled to immediate appellate review, and affirmed dismissal.

Justice Sonia Sotomayor, writing for a unanimous Court, stated that a party disputing an order to produce materials based on a waiver of a privilege has several options short of producing the materials and waiting to raise the issue after entry of judgment.  The party can, for example, ask the trial court to certify an interlocutory appeal (which the District Court refused to do in this case), or refuse to produce the disputed materials and incur court-imposed sanctions which would be subject to appeal after entry of judgment.

Justice Sotomayor noted that Congress, in the 1990 Rules Enabling Act, expressed an intention that the universe of appealable prejudgment orders be expanded, if at all, by rulemaking and not by court decision.