2022 OADC Convention CLE Book

2022 OADC OADC ANNUAL CONVENTION Oregon Association of Defense Counsel

THURSDAY, JUNE 16 – SATURDAY, JUNE 18 | SUNRIVER RESORT - SUNRIVER, OREGON

2022 OADC Convention CLE Materials

Make Your Lodging Reservation Today!

Contact Sunriver Resort directly at 800.547.3922 and ask for the OADC’s 2022 Annual Convention room block or make your reservation online at https://www.sunriverresort.com/group-stays/oregon-association-ofdefense-counsel

CLE Credit NOTES Application has been made to the Oregon and Washington State Bars for approximately 8 general CLE credit hours.

The State Bars reserve the right to make the final determination of eligible CLE credits

www.oadc.com

OADC Oregon Association of Defense Counsel

2022 OADC ANNUAL CONVENTION CLE MATERIALS TABLE OF CONTENTS General Session: The Psychology of Negotiation........................................................................................................................................... 6 General Session: Mediator Panel – Mediating Oregon Cases..................................................................................................................... 13 Lightning Round Sessions: • Techniques for Successfully Challenging the Pleadings via Pre-AnswerTo Dismiss.................................................................... 22 • Work Product: Why it’s Different than Attorney/Client Priviledge...................................................................................................... 29 • ORS 30.140 Issues and Practice Tips on the Duty to Defend in Construction Defect Matters.............................................. 39 • Construction Mediation Tips, Tricks and Trends........................................................................................................................................ 43 • Moody: Where we are 6 Months in Bad Faith in Oregon.......................................................................................................................... 47 • The State of Common-Law Indemnity in Oregon and the Real-World Effects of Eclectic I & II................................................ 78 • Expert Discovery and Motions for Summary Judgment in Oregon..................................................................................................... 80 General Session: A Supreme Overview.............................................................................................................................................................. 82 General Session: Appellate Update: Keeping Your Practice Current........................................................................................................ 116 General Session: Trial by COVID: Factors to Consider in Civil Litigation.................................................................................................. 149 Breakout A1: Advanced Leave & Accommodation Issues for Defense Counsel................................................................................. 157 Breakout A2: If you Build it: An Oregon Construction Update..................................................................................................................... 204 Breakout A3: Bad Faith Claims in Oregon and the Impact of Moody vs. Oregon.................................................................................. 208 Community Credit Union & Federal Insurance Company

This information and related materials are provided to you as a registered 2022 OADC Annual Convention attendee only. To maintain the integrity of the program, please do not share this with anyone else.

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OADC Oregon Association of Defense Counsel

Congratulations to our 2022 OADC Award Winners 2022 OADC President’s Award

2022 OADC Attorney on the Rise

OADC 2022 Lifetime Achievement Award Recipient

MICHAEL J. SCOTT

CHRISTINE SARGENT

GORDON WELBORN

2022 OADC Distinguished Service Award

2022 OADC Distinguished Service Award

HELAINA CHINN

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BREANNA THOMPSON

OADC Oregon Association of Defense Counsel

0ADC 2022 ANNUAL CONFERENCE

Schedule at a Glance Friday – June 17

7:30 am

Registration, Continental Breakfast and Exhibits for CLE Attendees

7:45 - 8:00 am

Welcome, Introductions, Awards and Announcements

By Convention Chairs: Donna Lee, Hart Wagner PC; Brian Scott; and Stephen Yoshida, MB Law Group LLP

7:45 - 8:00 am

Award Presentations

8:00 – 9:50 am

The Psychology of Negotiation

Breanna Thompson, Distinguished Service Awared; Helaina Chinn, Distinguished Service Award; Christine Sargent, Attorney on the Rise Award; Gordy Welborn, Lifetime Achievement Award

Presented by Donna Shestowsky, J.D., PH.D.; Martin Luther King Jr. Professor of Law and Director of the Lawyering Skills Education Program, UC Davis School of Law

9:50 – 10:00 am

Networking Break with Exhibits

10:00 – 11:00 am

Mediator Panel

11:00 -11:15 am

Networking Break with Exhibits

11:30 – 12:30 pm

Lightning Round

Mediating Oregon Cases Presented by Senior Judge Daniel L. Harris, Harris Mediation & Arbitration; Judge Jean Mauer, Mauer Mediation; Senior Circuit Court Judge Michael C. Sullivan, Sullivan Dispute Resolution Services

Lloyd Bernstein presents the always popular Lightning Round. Seven minutes each with these seven scintillating topics: 1. Techniques for Successfully Challenging the Pleadings Via Pre-Answer Motions to Dismiss Chris Morgan, Barran Liebman 2. Work Product: Why it’s Different than Attorney/Client Privilege Lauren Blaesing, Markowitz Herbold 3. ORS 30.140: Issues and Practice Tips on the Duty to Defend in Construction Defect Matters Kevin Sasse, Dunn Carney 4. Construction Mediation Tips, Tricks, and Trends Jaimie Fender, Macmillan, Scholz & Marks 5. Moody: Where We are 6 Months in Bad Faith in Oregon Christina Ho 6. The State of Common-Law Indemnity in Oregon and the Real-World Effects of Eclectic I & II Connor King, Watkinson Laird Rubenstein P.C. 7. Expert Discovery and Motions for Summary Judgment in Oregon Elizabeth Esfeld, Preg O’Donnell & Gillett

12:15 pm

CLE Meetings Adjourn

12:45 pm

Golf Tournament at Sunriver’s Meadows Golf Course

3:30 – 4:30 pm

Islands of Fun (hosted by New Lawyers Group)

5:30 – 6:30 pm

Women in Law Social Hour hosted

6:30 – 10:30 pm

A Murder Mystery Show – Murder at Capone’s Place *Schedule, times, presenters, topics subject to change

CLE CREDIT NOTES Application has been made to the Oregon and Washington State Bars for approximately 8 general CLE credit hours. The State Bars reserve the right to make the final determination of eligible CLE credits

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OADC Oregon Association of Defense Counsel

0ADC 2022 ANNUAL CONFERENCE

Schedule at a Glance Saturday – June 18

7:30 am

Continental Breakfast for CLE Attendees

7:45 – 8:00 am

Introductions, Awards and Announcements

By Convention Chairs: Donna Lee, Hart Wagner PC; Brian Scott; and Stephen Yoshida, MB Law Group LLP

8:00 – 9:00 am

A Supreme Overview

Presented by Tom Dupree, Partner, Gibson Dunn, Washington D.C.

9:00 – 9:15 am

Networking Break with Exhibits

9:15– 10:15 am

Appellate Update: Keeping your Practice Current

Presented by Honorable Erin Lagesen, Oregon Court of Appeals; Judge Alycia Sykora, Deschutes County Circuit Judge, and appellate attorney Matt Kalmanson, co-managing partner, Hart Wagner PC

10:15 – 10.30 am

OADC President’s Award Presentation to Mike Scott

10:30 – 10.45 am

Networking Break with Exhibits

10:45 – 11:45 am

Trial by COVID: Factors to Consider in Civil Litigation Presented by: Lori Sicafuse, Litigation Consultant, Courtroom Sciences, Inc.

11:45 – Noon

Networking Break with Exhibits

Noon – 1:00 pm

Breakout Sessions - Choose One A1) EMPLOYMENT PRACTICE GROUP ADVANCED LEAVE AND ACCOMMODATION ISSUES FOR DEFENSE COUNSEL Presented by: Melissa Healy, Stoel Rives, LLP; Jacqueline Houser, Lewis Brisbois Bisgaard & Smith LLP; Chet Nakada, Boli; Christine Sargent, Littler Mendelson, P.C. A2) CONSTRUCTION IF YOU BUILD IT: AN OREGON CONSTRUCTION UPDATE Presented by: Mario Nicholas, Stoel Rives LLP; and Angie Ott, Partner, Ball Janik LLP A3) COVERAGE BAD FAITH CLAIMS IN OREGON AND THE IMPACT OF MOODY VS. OREGON COMMUNITY CREDIT UNION AND FEDERAL INSURANCE COMPANY Presented by: FJ Maloney, Shareholder, Maloney, Lauersdorf, Reiner; and Scott Maclaren, Shareholder, Maloney, Lauersdorf, Reiner

1:00 pm

CLE Meetings Adjourn

2:00 – 6:00 pm

Family Time; Afternoon Open to Enjoy Sunriver *Schedule, times, presenters, topics subject to change

CLE CREDIT NOTES Application has been made to the Oregon and Washington State Bars for approximately 8 general CLE credit hours. The State Bars reserve the right to make the final determination of eligible CLE credits

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OADC Oregon Association of Defense Counsel

2022 OADC ANNUAL CONVENTION CLE MATERIALS The Psychology of Negotiation PRESENTED BY

Donna Shestowsky, UC Davis School of Law June 17, 2022 8:00 – 9:50 am Sunriver Resort 6

High Resolution Headshot Photo (../../images/people/h/shestowsky_-donna.jpg)

Donna Shestowsky UC Davis School of Law - Faculty & Administration - shestowsky - Donna Shestowsky

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Martin Luther King Jr. Professor of Law and Director of the Lawyering Skills Education Program DONNASTOWSKY dshest@ucdavis.edu (mailto:dshest@ucdavis.edu) 530-754-5693 Rm. 2135 King Hall

Education

Psychology, Yale(https://ssrn.com/ University LegalB.S. Scholarship at SSRN author=402976) M.S. Psychology, Yale University

High Resolution Headshot Photo (../../images/ people/h/shestowsky_-donna.jpg)

J.D. Stanford University

Ph.D. Psychology, Stanford University

Donna Shestowsky Biography Donna Shestowsky is Professor of Law and Director of the Lawyering Skills Education Program. She teaches Alternative Dispute Resolution (ADR), Advanced Negotiation and Client Counseling, Criminal Law, Lawyering Process, Negotiation Strategy, and the Seminar in Legal Psychology. Her main research objective is to examine basic assumptions underlying the structure of the legal system and to explore ways in which the legal system might be improved using the methodological and analytic tools of psychological

Martin Luther King Jr. Professor of Law and Director of the theory and research.

Lawyering Skills Education Program Dr. Shestowsky was the sole principal investigator of a multi-year research project, funded by the National Science Foundation and the American Bar Association, which examines how litigants evaluate legal Education based on this work was awarded the 2016 Mangano Dispute Resolution B.S. procedures.

Psychology,One Yalearticle University Advancement Award; another article was awarded the Best Article of 2018 in the field of dispute resolution M.S.from Psychology, Yale University the AALS Section on Alternative Dispute Resolution. She currently conducts field research on online resolution programs in state courts, and laboratory studies that examine how laypeople evaluate J.D. dispute Stanford University online versus in-person procedures for resolving disputes.

Ph.D. Psychology, Stanford University Dr. Shestowsky's legal and psychological commentary has appeared in national sources such as CNN, NPR, and the New York Times. She advises courts in the development of court-connected ADR programs and Biography

2/9/22, 10:37 AMnegotiation education services UC Davis School of Law - Faculty law & Administration - shestowsky Shestowsky She also provides to corporations, firms, and national- Donna organizations.

Donna Shestowsky is Professor of Law and Director of the Lawyering Skills Education coaches the King Hall Negotiation team, which routinely places at the nationals in the ABA’s negotiation Program.

She teaches Alternative Dispute Resolution (ADR), Advanced Negotiation

and client counseling competitions and ranked first in the world in the international law student and Client Counseling, Criminal Law, Lawyering Process, Negotiation Strategy, and negotiations competition. She was the 2007 recipient of the Distinguished Teaching Award. the Seminar in Legal Psychology. Her main research objective is to examine basic https://law.ucdavis.edu/faculty/shestowsky/

assumptions underlying the structureinoftop thejournals legal system and to exploreand ways in including which Her research has been published in both Psychology Law, the Stanford Law Review, Lawmight and Human Behavior, andthe themethodological Journal of Personality and Social She is dedicated the legal system be improved using and analytic tools Psychology. of to helpingtheory legal practitioners make use of empirical research. To that end, she also publishes in journals psychological and research. with broader audiences, such as Court Review and Dispute Resolution Magazine.

Dr. Shestowsky was the sole principal investigator of a multi-year research project, Dr. by Shestowsky wasScience awardedFoundation a J.D. and Ph.D. in Psychology from Stanford University.

During the 2003funded the National and the American Bar Association, which 2004 academic year,evaluate she waslegal jointly appointed One to the faculty at Northwestern School of Law and examines how litigants procedures. article based on this workUniversity was the Kellogg School of Management.

She was admitted Massachusetts in 2004. In 2021, she was 7to theAward; awarded the 2016 Mangano Dispute Resolution Advancement anotherbar article

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to helping legal practitioners make use of empirical research. To that end, she also publishes in journals with broader audiences, such as Court Review and Dispute Resolution Magazine.

Dr. Shestowsky was awarded a J.D. and Ph.D. in Psychology from Stanford University. During the 20032004 academic year, she was jointly appointed to the faculty at Northwestern University School of Law and the Kellogg School of Management. She was admitted to the Massachusetts bar in 2004. In 2021, she was elected as a fellow of the American Bar Foundation.

Subject Areas Alternative Dispute Resolution, Juries, Negotiation Strategy, Change of Venue Surveys

Selected Career Highlights Visiting Assistant Professor, Northwestern University School of Law, 2003-2004 Visiting Assistant Professor, Kellogg School of Management (Northwestern), 2003-2004 Instructor, Stanford University, Department of Psychology, 2001-2002

In the News Professor Shestowsky Delivers Keynote Address at Santa Clara – Stanford Law Dispute Resolution Workshop (/news/news.aspx?id=8902) New Research by Professor Shestowsky Featured in Dispute Resolution Magazine (/news/news.aspx? id=8552) Professor Shestowsky Comments for Daily Journal on JAMS Lawsuit (/news/news.aspx?id=8453) Professor Shestowsky Comments for Media on Alternative Dispute Resolution Suit (/news/news.aspx? id=8301) Research by Professor Shestowsky Featured in Alternatives to the High Cost of Litigation (/news/news.aspx?id=8118) Research by Professor Shestowsky Featured in Dispute Resolution Magazine (/news/news.aspx?id=7021) Professor Shestowsky Comments on Jury Deliberations for Eureka Times-Standard (/news/news.aspx? id=5827) Professor Shestowsky Interviewed on Conflict Resolution by UC Irvine Radio Station (/news/news.aspx? id=4881) Professor Shestowsky Publishes Column on Negotiations Skills in The Recorder (/news/news.aspx? id=4779)

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UC Davis School of Law - Faculty & Administration - shestowsky - Donna Shestowsky

https://law.ucdavis.edu/faculty/shestowsky/

Research by Professor Shestowsky Featured in Dispute Resolution Magazine (/news/news.aspx?id=4767)

Selected Publications Donna Shestowsky, How Useful is Court ADR if People (Still) Don’t Know About it?, in D���������� �� D������ R���������: T�� F����������� A������� (Hinshaw, Schneider, and Cole, eds., 2021).

Donna Shestowsky, Great Expectations? Comparing Litigants’ Attitudes Before and After Using Legal Procedures, 44 L�� ��� H���� B������� 179 (2020), DOI: 10.1037/lhb0000370 (https://psycnet.apa.org/doi/10.1037/lhb0000370)

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UC Davis School of Law - Faculty & Administration - shestowsky - Donna Shestowsky

Research by Professor Shestowsky Featured in Dispute Resolution Magazine (/news/news.aspx?id=4767)

Selected Publications Donna Shestowsky, How Useful is Court ADR if People (Still) Don’t Know About it?, in D���������� �� D������ R���������: T�� F����������� A������� (Hinshaw, Schneider, and Cole, eds., 2021).

Donna Shestowsky, Great Expectations? Comparing Litigants’ Attitudes Before and After Using Legal Procedures, 44 L�� ��� H���� B������� 179 (2020), DOI: 10.1037/lhb0000370 (https://psycnet.apa.org/doi/10.1037/lhb0000370) Mara Olekalns , Donna Shestowsky, Sylvia P. Skratek & Ann-Sophie de Pauw, The Double Helix of Theory and Practice Celebrating Stephen J. Goldberg as a Scholar, Practitioner, and Mentor, N���������� ��� C������� M��������� R������� (2019), DOI: 10.1111/ncmr.12146.

Deborah Goldfarb, Sidnei Priolo-Filho, Janelle Sampana, Donna Shestowsky, Lucia C. A. Williams & Gail S. Goodman, International Comparison of Family Court Professionals’ Perceptions of Parental Alienation and Child Sexual Abuse Allegations, International Journal on Child Maltreatment: Research, Policy and Practice (2019), DOI: 10.1007/s42448-019-00033-6 (https://doi.org/10.1007/s42448-01900033-6).

Sidnei Priolo-Filho, Deborah Goldfarb, Donna Shestowsky, Janelle Sampana, Lucia C. A. Williams & Gail S. Goodman, Judgments Regarding Parental Alienation When Parental Hostility or Child Sexual Abuse is Alleged, Journal of Child Custody (2019), DOI: 10.1080/15379418.2018.1544531 (https://doi.org/10.1080/15379418.2018.1544531).

Ellen E. Deason, Michael Z. Green, Donna Shestowsky, Rory Van Loo, Ellen Waldman, ADR and Access to Justice: Current Perspectives, 33 Ohio State Journal on Dispute Resolution 303 (2018).

Donna Shestowsky, Inside the Mind of the Client: An Analysis of Litigants’ Decision Criteria for Choosing Procedures (https://ssrn.com/abstract=3247353), 36 Conflict Resolution Quarterly 69 (2018).

Donna Shestowsky, Easing the Road to Civil Justice: Improving Litigants’ Awareness of ADR Options 54 Court Review 142 (2018).

Donna Shestowsky, When Ignorance is Not Bliss: An Empirical Study of Litigants' Awareness of CourtSponsored Alternative Dispute Resolution Programs (https://papers.ssrn.com/sol3/papers.cfm? abstract_id=2945706), 22 Harv. Negot. L. Rev. 189 (2017).

Jonni L. Johnson, Sue D. Hobbs, Yoojin Chae, Gail S. Goodman, Donna Shestowsky & Stephanie Block, “I Didn’t Do That!”: Event Valence and Child Age Influence Adults’ Discernment of Preschoolers’ True and False Statements, J. of Interpersonal Violence (2017), DOI: 10.1177/0886260517736276 (https://doi.org/10.1177/0886260517736276).

Pietro Ortolani & Donna Shestowsky, Disputant Psychology: What Can a Comparison with Domestic Arbitration Teach Us? in International Arbitration, in The Roles of Psychology in International Arbitration (Tony Cole ed.) (2017). https://law.ucdavis.edu/faculty/shestowsky/

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UC Davis School of Law - Faculty & Administration - shestowsky - Donna Shestowsky

Donna Shestowsky, The Psychology of Negotiation: Using Persuasion to Negotiate More Effectively, in The Negotiator's Desk Reference (Andrea Kupfer Schneider & Christopher Honeyman eds.) (2017).

Donna Shestowsky, How Litigants Evaluate the Characteristics of Legal Procedures: A Multi-Court Empirical Study (http://ssrn.com/abstract=2729893), 49 U.C. Davis L. Rev. 793 (2016).

Donna Shestowsky, Mediation? Negotiation? Arbitration? Trial?: A Multicourt Study Looks at Litigants' Preferences, Disp. Resol. Mag., Summer 2015.

Donna Shestowsky, How Litigants Evaluate Legal Procedures at the Start of Their Cases, 50 Ct. Rev. 126 (2014).

Donna Shestowsky, The Psychology of Procedural Preference: How Litigants Evaluate Legal Procedures Ex Ante (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2378622), 99 Iowa L. Rev. 637 (2014).

Stephanie D. Block, Donna Shestowsky, Daisy A. Segovia, Gail S. Goodman, Jennifer M. Schaff & Kristen W. Alexander, That Never Happened: Adults’ Discernment of Children’s True and False Memory Reports, 36 L�� & H��. B����. 365 (2012).

Lee Ross & Donna Shestowsky, Two Social Psychologists’ Reflections on Situationism and the Criminal Justice System, in I�������, P���������, ��� L�� 612 (Jon Hanson ed., 2011).

Donna Shestowsky, An Evaluation of the Ventura Superior Court Small Claims Mediation Program (2011) (limited distribution report).

Donna Shestowsky & Jeanne Brett, Disputants’ Perceptions of Dispute Resolution Procedures: An Ex Ante and Ex Post Longitudinal Empirical Study, 41 C���. L. R��. 63 (2008).

Donna Shestowsky, Disputants’ Preferences for Dispute Resolution: Why We Should Care and Why We Know So Little (https://ssrn.com/abstract=1103585), 23 O��� S�. J. �� D���. R����. 549 (2008).

Donna Shestowsky, Misjudging: Implications for Dispute Resolution (https://ssrn.com/abstract=982227), 7 N��. L. J. 487 (2007).

Donna Shestowsky, Dispute Resolution, Psychology of, in E����������� �� L�� ��� S������: A������� ��� G����� P����������� (David S. Clark ed., 2007).

Donna Shestowsky, Psychology and Persuasion, in T�� N���������’� F�������� 361 (Andrea Kupfer Schneider & Christopher Honeyman eds., 2006).

Janice Nadler & Donna Shestowsky, Negotiation, Information Technology, and the Problem of the Faceless Other, in N���������� T����� ��� R������� 145 (Leigh L. Thompson ed., 2006).

Donna Shestowsky, Procedural Preferences in Alternative Dispute Resolution: A Closer, Modern Look at an Old Idea (https://ssrn.com/abstract=600821), 10 P������. P��. P��’� & L. 211 (2004).

Donna Shestowsky & Leonard M. Horowitz, How the Need for Cognition Scale Predicts Behavior in Mock Jury Deliberations, 28 L�� & H��. B����. 305 (2004).

https://law.ucdavis.edu/faculty/shestowsky/

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UC Davis School of Law - Faculty & Administration - shestowsky - Donna Shestowsky

Donna Shestowsky, Improving Summary Jury Trials: Insights from Psychology, 18 O��� S�. J. �� D���. R����. 469 (2003).

Lee Ross & Donna Shestowsky, Contemporary Psychology’s Challenges to Legal Theory and Practice, 97 N�. U. L. R��. 1081 (2003).

Franklin Strier & Donna Shestowsky, Profiling the Profilers: A Study of the Trial Consulting Profession, Its Impact on Trial Justice and What, if Anything, to Do About It, 1999 W��. L. R��. 441 (1999).

Donna Shestowsky, Where is the Common Knowledge? Empirical Support for Requiring Expert Testimony in Sexual Harassment Trials, 51 S���. L. R��. 357 (1999).

Donna Shestowsky, Duane T. Wegener & Leandre R. Fabrigar, Need for Cognition and Interpersonal Influence: Individual Differences in Impact on Dyadic Decisions, 74 J. �� P���������� & S��.

P������. 1317 (1998).

Projects The Psychology of Litigants Project - sole principal investigator for longitudinal study of how litigants evaluate legal procedures, sponsored by the National Science Foundation

Selected Presentations “When Ignorance is not Bliss: Litigants' Awareness of Court-Sponsored ADR Programs,” Keynote, Santa Clara-Stanford Law School Dispute Resolution Workshop, Stanford, March 2018.

“When Ignorance is not Bliss: Litigants' Awareness of Court-Sponsored ADR Programs,” Invited presentation, Northern California ADR Faculty Conference, San Francisco, February 2018.

“ADR and Access to Justice: Current Perspectives,” Panel presentation, Association of American Law Schools Annual Meeting, San Diego, January 2018.

“Arbitrator Advertising and Disclosures.” Panel presentation, Sacramento Bar Association ADR Section, Sacramento, June 2017.

“When ‘Yes’ Means ‘No’: Rethinking Informed Consent to Dispute Resolution Procedures.” Panel presentation, American Bar Association Section on Dispute Resolution Spring Conference, San Francisco, April 2017.

“When Ignorance is not Bliss: Litigants' Awareness of Court-Sponsored ADR Programs.” Panel presentation, American Bar Association Section on Dispute Resolution Spring Conference, San Francisco, April 2017.

“Promoting Better Access to Justice: What Action Items Should be Considered and by Whom.” Panel presentation, Global Pound Conference, San Francisco, February 2017.

“Teaching Viking Investments.” Webinar, Kellogg School of Management, Northwestern University, January 2017. https://law.ucdavis.edu/faculty/shestowsky/

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“Issue Resolution Process Design: Lessons from Psychology and Law.” Invited presentation, Mental Health Oversight and Accountability Commission, Sacramento, August 2016.

“Psychology of Negotiation.” Invited presentation, Mandela Washington Fellowship for Young African Leaders, Specialized Institute on Energy, University of California, Davis, July 2016.

“The Psychology of Negotiation.” Invited presentation, Kilpatrick, Townsend and Stockton LLP, Atlanta, GA, June 2016.

“What Does Recent Research Tell Us About Court ADR?” Panel presentation, American Bar Association Section on Dispute Resolution Spring Conference, New York City, April 2016.

“Making Use of the Behavioral Sciences: Practical Implications for Mediators,” Invited presentation, Mediation Roundtable, Nixon Peabody LLP, San Francisco April 2016.

“The Psychology of Procedural Preference: How Litigants Evaluate Legal Procedures Ex Ante.” Invited presentation, Herrick Feinstein LLP, New York City, March 2016.

“The Psychology of Procedural Preference: How Litigants Evaluate Legal Procedures Ex Ante,” Invited presentation. St. John’s University, School of Law, New York City, March 2016.

“Mediation? Negotiation? Arbitration? Trial?: Highlights from the First Multi-jurisdiction Study of Litigants' Preferences.” Invited presentation, Appellate Mediation Half-Day Conference, Judicial Counsel of California, Sacramento, September 2015.

“Litigant Psychology: How Litigants Evaluate Legal Procedures.” Webinar presentation, American Arbitration Association, June 2015.

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OADC Oregon Association of Defense Counsel

2022 OADC ANNUAL CONVENTION CLE MATERIALS Mediator Panel: Mediating Cases in Oregon PRESENTED BY Senior Judge Daniel L. Harris, Harris Mediation & Arbitration Judge Jean Mauer, Mauer Mediation Senior Circuit Court Judge Michael C. Sullivan, Sullivan Dispute Resolution Services

June 17, 2022 10:00 – 11:00 am Sunriver Resort 13

Senior Judge Daniel L. Harris, Harris Mediation & Arbitration SeniorJudge Daniel L. Harris, Harris Mediation & Arbitration (www.harrismediator.com). Circuit Court Judge, Jackson County (1997-2013). Civil settlement conference judge (16 years); Oregon Court of Appeals Pro Tem Judge (2005-07). Complex litigation court (2010-13). OSBADR Section (exec com, 2019-present). OSB Licensed Paraprofessional Implementation Committee (Vice Chair, 2020-present). Oregon Bench and Bar Commission on Professionalism (1999-2017). New Judges Seminar, faculty (2002-14). Co-founded William V. Deatherage American Inns of Court. Recipient: 2010 OSB Wallace Carson Award for Judicial Excellence; 2019 OSB Pro Bono Challenge Award (for volunteer legal work in Russia and eastern Europe). Trial Attorney: Harrang Long Gary Rudnick (201315); Davis Gilstrap Harris (1986-97).

Judge Jean Mauer, Mauer Mediation Judge Maurer began her legal career in after receiving her BA from the University of California at Berkeley and graduating cum laude from Santa Clara University Law School.

She served as a prosecutor and in private practice before being appointed to the Oregon Circuit Court Multnomah County trial bench by Governor John Kitzhaber in 1996. She was the first woman to serve as Presiding Judge in Multnomah County Circuit Court, a position she held from 2008-2012. She retired from the bench in 2016 after serving in that position for more than twenty years.

She immediately began work as a full time mediator when she opened her private mediation practice. Her practice is similar to the cases over which she presided as a judge and includes, among others, wrongful death, personal injury, premises liability, medical negligence, legal malpractice, construction defect, product liability, employment discrimination, wrongful termination, contract disputes, estate litigation, sexual assault cases, and securities litigation. She conducted many judicial settlement conferences while on the bench and has conducted more than 1000 mediations as a private mediator.

Senior Circuit Court Judge Michael C. Sullivan, Sullivan Dispute Resolution Services Michael C. Sullivan Occupation: Senior Circuit Court Judge, Mediator, Arbitrator, and Reference Judge Occupational Background: Presiding Judge; 2004 to 2011 Circuit Court Judge; Feb. 1988 to Jan. 2013 District Attorney Jefferson County; 1977 to 1988 Deputy District Attorney Lane County; 1974 to 1977 Educational Background: Benson Polytechnic High School; Portland, Diploma, 1966 Washington University; St. Louis, Bachelor of Science Business Administration, 1970 University of Oregon School of Law; Eugene, Doctor of Jurisprudence, 1973

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Tips for Mediations and Judicial Settlement Conferences OADC June 2022 Conference Sunriver Hon. Jean K Maurer Maurer Mediation Mediation and Judicial Settlement Conferences are now commonplace. They are similar in many respects. Both provide an opportunity for clients to resolve their disputes confidentially and efficiently without the expense of protracted litigation with an uncertain outcome. They allow the client to maintain control over the case, to participate in the process and to have an opportunity to be heard in an non-adversarial setting. They are your client's "day-in-court" and the end result of the case.

Prior to adjustments made because of Covid, mediations, unlike judicial settlement conferences, were typically held in the law offices of one of the attorneys or, occasionally, in a neutral space such as a law library or a conference room belonging to an independent business.

They are relatively informal, conducted by a lawyer or a retired judge selected by the parties, and can take an entire day or more. Since Covid, mediations are frequently conducted remotely by zoom or another platform. The mediator is hired by the lawyers to conduct the process.

As with the changes brought about by Covid in mediation practice, Judicial settlement conferences frequently are conducted remotely with a sitting judge serving as the mediator.

Alternatively, they take place in a courthouse and are presided over by a sitting judge when the court is not in session. The court, rather than the judge, sets the fees which are paid into the court and not to the judge. This approach is typically less expensive. A judge faces docket time constraints and frequently can give only a half day to the case.

In other respects, the process is similar. In each, the parties prepare a confidential statement which is sent to the judge or the mediator in advance. It outlines the factual and legal issues and a summary of the settlement negotiations that may have taken place. Most mediators and judges will advise the lawyers what should be included in the statement. On the day of the mediation or the judicial settlement conference, the parties are often kept separate from one another in rooms set aside for that purpose. The judge or the mediator shuttles between the rooms in an effort to settle the case. Occasionally, mediators or judges will conduct a joint session, but this approach is less common. The process is identical when the parties are using remote technology.

Much preparation must go into presenting your client's case to the judge or the mediator.

The outline below provides tips that apply to most, but not all, cases. It is important to learn what mistakes to avoid so that you can make the best possible case for your client.

1. Choosing the wrong mediator for your case and client •

•

Consider various mediator qualities. Some cases, parties, or counsel call for a particular mediator. ◦ Personality and other characteristics: age, gender, culture, etc. ◦ Background and Experience level ◦ Substantive knowledge ◦ Availability before and after mediation session Mediation style ◦ Facilitative

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◦ Evaluative ◦ Transformative ◦ Restorative 2. Failing to know your case prior to mediation •

Recognize your client's needs, wants and expectations

•

Identify your facts and legal issues as well as your strengths and weaknesses

•

Identify the barriers to settlement

3. Conducting or producing discovery during mediation itself •

Ambushing your opponent with new information after discovery

•

Failing to understand the defense evaluation process and impact on authority

4. Providing the mediator with too much information in your pre-mediation statement •

All of the pleadings in the case

•

All prior motions and legal memoranda

•

All economic loss documents: medical records, pay stubs, receipts, photo's, etc

•

Un-highlighted deposition transcripts

•

String cites to cases

5. Providing the mediator with too little information in your pre-mediation statement •

Status of prior settlement negotiations

•

Untimely delivery of mediation documents

•

Prior court rulings in the case

•

Caselaw that under cuts your position.

6. Failing to prepare your client with a thorough case evaluation in advance of mediation •

Overpromising an outcome

•

Losing objectivity and failing to manage expectations

•

Bringing trial “fighter-pilot” demeanor into the mediation

•

Failing to explain the indirect costs of litigation

•

Failing to obtain client's “evidence” in advance (diary notes, photos, etc)

7. Scheduling the mediation too early or too late in the life of the case •

Advantages and disadvantages of pre-filing mediation

•

Advantages and disadvantages of mediation prior to or after dispositive motions

8. Failing to bring the actual decision-maker to the mediation and/or bringing unnecessary people who may obstruct the process or interfere with the client's ability to be completely honest about the facts •

Failing to be aware of family or cultural dynamics

9. Failing to alert mediator to your expectations as to confidentiality of statements to the mediator and by the mediator to the participants.

16

A view from a Senior Judge on Mediation Senior Judge Michael C. Sullivan June 17, 2022 Ask yourself the question; are you and your client ready to settle?

Be prepared to set aside your and your client’s animosity toward the other side to make a sound economic decision.

Come to the settlement conference not only as a good advocate but a good listener as well. You can learn a lot about your case and the other side’s case by just listening.

Please leave condescending attitudes toward the other side at the door. Arguing with the other side and dropping the F bomb will not further your client’s interests.

Choose the mediator with care. Not every retired judge or effective trial attorney is a good mediator. Is the mediator you are considering experienced? Can he/she talk to litigators, and clients? Will he/she stay until a resolution is reached and then nail the terms down? Will this person do more than convey offers? Is he/she respected by both attorneys?

Don’t force a specific mediator on the other side as a prerequisite to mediation.

Make sure the mediation site is adequate. Not only are separate areas necessary but privacy should be considered. Is WIFI available and will passwords be provided? Can food be ordered in so there is not an hour plus break?

Make sure the attorneys and the mediator can navigate a digital platform. It is important each party has access to their own break out room.

Know your case, review your file carefully and prepare your clients for what to expect. Knowing the key details and issues of your case can make all the difference. On the other hand, don’t get lost in the minutia. Make sure the client keeps an open mind as they may learn important new facts.

Meet with your clients and reach an understanding of what your goals are or what an adequate settlement would be to your clients. Make sure they understand the weaknesses in the case and are fully aware of the costs of going forward.

Prepare a confidential memo for the mediator and make sure he/she gets it at least the day before the conference.

Be prepared with key data you need to calculate values. Settlement decisions are next to impossible without key information.

Be prepared to discuss the unique or difficult legal issues in your case and how they play into the risk benefit analysis.

Be prepared to have the attorneys meet with the mediator so the ground rules can be explained.

17

Know the last offer and demand before you start the mediation. Back tracking is not helpful.

Have an idea of what your first offer is going to be before you show up. Taking an hour or two to make your first offer, does not further settlement.

Know the fee arrangement with your client, especially at mediation, and how much is currently owed?

Providing the Mediator with an accurate snapshot of the estimated cost of trial, including the cost of expert witnesses and the likely number of trial days required is very helpful. Do you have an estimate of how many continuances there are likely to be before trial?

Know the upcoming trial date. If the trial has not yet been scheduled, please have an idea of how long it will be before the case is ready to try.

Do not do a discovery dump the day before mediation and expect a good result. Most attorneys will want to look closely at the discovery before making an offer.

Make sure that all of the right people are at the conference and have full settlement authority. If they are not present make sure they are easily reached by phone, email, etc. The presence of key players increases the odds of settlement.

If settlement is not possible, what can we agree on today?

If settlement is not possible, consider a Reference Judge to resolve the case.

Nail the settlement down. I record it on my I pad. I bring all the parties into one room or record in separate rooms and record the settlement on a video. I ask each litigant on the video a series of questions to make sure they understand the nature of the agreement. Who will prepare the closing documents?

If you continue a settlement conference, it may be months before all the parties are available again.

Please encourage your clients not to bring their children to a mediation. I do understand some attorneys will have to have their children with them.

Don’t be afraid to ask for a private conversation with the mediator if you are having issues with your client.

Please provide the custody evaluation a few days before mediation. I recently had one that was 100 pages long and singled spaced.

Please discourage your client from bringing extra people to the mediation.

The person who is invited to attend for moral support should not be the person who is driving the mediation.

Make sure you have current amounts owed on credit cards, other liabilities, taxes, and values of real estate, and retirement accounts. Know if the retirement accounts are pretax or post tax money and what you think the proposed tax discount should be.

18

Outline of Script for Mediator/Judge

Introduction to the Parties Hello: My name is Michael Sullivan and I am your Mediator.

After speaking to either party as a Mediator, I will no longer be able to try your case as a Senior Judge or a Reference Judge. If this case settles, it is possible I may be able to resolve limited matters like the form of the judgement, if the parties agree.

I will not convey any information I learn about the facts of this case to the trial judge or Reference Judge if we don’t settle this matter.

I will not convey any information you give me during the course of these discussions to the other side unless your attorney approves.

The attorney with you is your legal advisor. I do not provide legal advice as that is your attorney’s job.

Please make your decisions outside my presence with your attorney.

If at any point you would like a private conversation with your attorney, I take no offense at your request and would be happy to step outside.

Although I have 25 plus years’ experience as a Circuit Court Judge, I will not order either party to do something, make ruling on the admissibility of evidence, or determine issues regarding the law.

Do you have any questions or would you like to tell me something? I ask this question once the parties are separated.

Making a record of the settlement.

19

I use an I Pad to record the settlement and provide a copy to each attorney on a flash drive.

One attorney may place the settlement on the recording. Both parties should listen closely.

The other attorney may make additions or corrections.

Does the other attorney agree with the additions or correction?

Either party may consult with your attorney now if you have any questions.

Parties Did you hear and understand the agreement?

Do you agree to the terms of the settlement as out lined by the attorneys?

Do you understand you don’t get to change your mind in 5 minutes?

Do you understand this is an enforceable agreement in a court of law?

Do you want the Court to accept this settlement of your dissolution?

Did you have ample time to speak to your attorney about the terms of this settlement?

Did your attorney answer all your questions?

Are you satisfied with your attorney?

Did your attorney do everything you wanted them to do on this case?

Are you entering into this negotiated settlement freely and voluntarily?

Did I speak with you during the course of these negotiations?

20

Was I polite and respectful?

Did I tell you your attorney was your legal advisor and I was not?

Were you advised you could have a private conversation with your attorney?

Do you have those private conversations?

Are you satisfied in all respects as to how you have been treated today?

Have you made a full disclosure of all assets and liabilities? (Dissolution) Are you under the influence of drugs or intoxicants?

Are you impaired mentally or physically in such a manner you are not able to make a sound decision?

Are you entering into this settlement freely and voluntarily?

Attorneys Would either attorney like to supplement the recording?

Who will prepare the closing documents?

Separate rooms or Breakout rooms for recording Settlement.

I have the other party review the first video and ask the same questions after getting acknowledgment on the recording they have watched the video with their attorney.

21

OADC Oregon Association of Defense Counsel

2022 OADC ANNUAL CONVENTION CLE MATERIALS LIGHTNING ROUND: Techniques for Successfully Challenging the Pleadings Via Pre-Answer Motions to Dimsiss

PRESENTED BY

Chris Morgan, Barran Liebman June 17, 2022 11:15 am to 12:15 pm Sunriver Resort 22

Chris Morgan, Barran Liebman

Chris Morgan is a partner at Barran Liebman LLP, where h

Chris Morgan is a partner at Barran Liebman LLP, where he specializes in complex specializes in complex employment advice, strategy, and employment advice, strategy, and litigation. He has successfully handled hundreds of successfully handled ofcourts, cases for caseshas for employers of all sizes and industries inhundreds state and federal as well as inemploye front of regulatory agencies such as BOLI and the EEOC. Chris is known for his aggressive and industries in state and federal courts, as well as in fro defense of a wide range of employment-related claims—including those alleging wrongful regulatory agencies asandBOLI and the Chris is termination, harassment, discrimination,such and wage hour violations.

ChrisEEOC. also handles both large small commercial disputes, including contract actions and tort his and aggressive defense of a breach wideofrange of employment-r claims alleging business interference and breach of fiduciary duties.

—including those alleging wrongful termination, harassm

In addition to his litigation work, Chris is a frequent speaker, author, and advisor in discrimination, and wage and hour violations. Chris also h proactive training and policy development. He is passionate about helping businesses large and small disputes, breach of succeed, and provides interactive trainings on employment law, legalcommercial compliance, and risk management.including In line with this focus, Chris recently collaborated with Oregon’s State Accident Insurance Fund to develop a comprehensive series of HR training actions and tort claims alleging business interference an modules for their policyholders.

Chris M. Morgan

fiduciary duties.

Chris graduated cum laude with a B.A. in Political Science from Washington State University and received his J.D., cum laude, from the Gonzaga University School of Law, where he was the class commencement speaker and received the Dean’s Distinguished Achievement scholarship. In addition to his litigation work, Chris is a frequent

speak and advisor in proactive training and policy development Representative Matters Partner • Counsel for Regional Healthcare Organization: Obtained a full dismissal with prejudice of claims alleging whistleblower passionate about helping businesses succeed, and provi retaliation and discrimination. interactive trainings on employment law, legal complianc P: •503-276-2144 Counsel for Regional Healthcare Organization: Obtained a full dismissal with prejudice of claims alleging federal and management. In line with this focus, Chris recently collab state race discrimination.

F: 503-274-1212 Oregon’s State Accident Insurance Fund to develop a co • Counsel for Regional Car Service Organization: Obtained a full dismissal with prejudice of claims alleging federal and series of HR training modules for their policyholders. state 2nd age discrimination.

601 SW

Avenue, 2300 • CounselSuite for Regional Healthcare Organization: Obtained defense verdict in case tried in County Circuit Court alleging breach of contract.

Chris graduated cum laude with a B.A. in Political Scienc Portland, OR 97204 Washington State University and received his J.D., cum la • Counsel for International Construction Company: Obtained dismissal of BOLI charge alleging whistleblower retaliation. the Gonzaga University School of Law, where he was the Email View • Counsel for Regional Childcare Facility: Obtained dismissal of BOLI charge alleging whistleblower retaliation. commencement speaker and received the Dean’s Disting Printable PDF • Counsel for Regional Care Facility: Obtained dismissal of BOLI charge alleging workers’ compensation discrimination Achievement scholarship. and retaliation.

•

Counsel for Regional Law Firm: Obtained defense verdict in case tried in County Circuit Court alleging unpaid wages.

Representative Matters Assistant: • Counsel for Multi-National Energy Company: Obtained dismissal of BOLI charge alleging retaliation and race Lauren Heesacker discrimination.

• Counsel for Regional Healthcare Organization: Obta (503) 276-2199 • Counsel for Regional Non-Profit Corporation: Obtained dismissal of BOLI charge alleging discrimination and dismissal with prejudice of claims alleging whistleb lheesacker@barran. whistleblower retaliation. retaliation and discrimination. com • Counsel for Large Public Health Organization: Obtained dismissal of BOLI charge alleging discrimination, retaliation, and

• Counsel for Regional Healthcare Organization: Obta Practice Areas • Counsel for Regional Non-Profit Corporation: Obtained dismissal charge alleging retaliation. federal a dismissal withof BOLI prejudice of whistleblower claims alleging • Counsel for Private Company: Representeddiscrimination. company against claims alleging retaliation, failure to accommodate, • Compliance wrongful discharge, and negligent infliction of emotional distress. Obtained dismissal with prejudice on all claims.

• Counsel for Regional Car Service Organization: Obt Advice dismissal with prejudice of claims alleging federal a constructive discharge.

23

•

Counsel for Private Corporation: Represented large, multi-national corporation against claims alleging retaliation, age discrimination, and breach of contract.

•

Counsel for Private Corporation: Represented large, multi-national corporation against claims alleging retaliation and national origin discrimination.

•

Counsel for Public University: Represented University against federal claims alleging retaliation and national origin discrimination.

•

Counsel for Public County: Represented large Public County against claims alleging harassment, hostile work environment, and intentional infliction of emotional distress.

•

Counsel for Non-Profit Corporation: Represented large Non-Profit against claims alleging retaliation and hostile work environment.

•

Counsel for Non-Profit Corporation: Represented large Non-Profit against claims alleging disability discrimination.

•

Counsel for Private Company: Represented agricultural organization against state and federal claims alleging breach of contract, unlawful deductions, and overtime violations.

•

Counsel for Public County: Represented large Public County against claims alleging harassment, hostile work environment, and intentional infliction of emotional distress.

•

Counsel for Regional Training and Education Institution: Represented company against claims alleging wrongful discharge, discrimination, and retaliation. Obtained dismissal with prejudice on all claims.

•

Counsel for Large Regional Construction Corporation: Obtained dismissal of BOLI charge alleging retaliation and national original discrimination.

Professional Experience & Affiliations • Oregon’s State Accident Insurance Fund (SAIF): Content Creator for Policyholder E-Learning Center HR Modules (20202021) •

American Bar Association Young Lawyers Division: Labor & Employment Committee: Co-Chair (2018-2019); Law Student Outreach Team: Vice-Coordinator (2018-2019); Emerging Leaders Program (2017-2018)

Honors • Oregon Super Lawyers Magazine: Rising Star (2020-present) •

Graduate of the National Institute for Trial Advocacy: Deposition Skills (2018)

Civic Activities • The Portland Opera’s Young Patron Society: Member (2018-present) •

The First Tee of Greater Portland: Ambassador Board, Member (2018-present)

Representative Presentations • Barran Liebman Webinar: “Effective Wage & Hour Practices to Safeguard Your Workplace,” Presenter (6/7/22) •

Portland Human Resource Management Association (PHRMA) Legal Update: “Best Practices for Managing Risky Terminations & Limiting Legal Exposure,” Presenter (5/25/22)

•

SAIF 2022 Workers’ Compensation Seminar: Employment Practices in 2022: Things to Know & Consider,” Presenter (5/5/22)

•

Barran Liebman Annual Seminar: “Know When to Lay Up: Tips for Managing Employee Discipline & Risky Terminations,” Presenter (9/30/21)

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•

Associated General Contractors (AGC) Summer Convention: “Safety Complaints & Retaliation in Oregon: Employers Now Presumed Guilty,” Presenter (8/6/21)

•

SAIF 2021 Workers’ Compensation Seminar: “Employment Law: New Laws & Best Practices for 2021,” Presenter (5/12/21)

•

Barran Liebman Webinar: “Key Policy Considerations For Employers Going In To 2021,” Presenter (12/8/20)

•

Barran Liebman Client Training: “Sexual Harassment: Shifting Tides in Sexual Harassment Training & Prevention,” Presenter (9/30/20)

•

Hillsboro Chamber of Commerce: “Employment Law Hot Topics, Best Practices, & Considerations During COVID-19,” Presenter (8/18/20)

•

Barran Liebman Client Training: “Harassment & Workplace Investigations: Must-Knows & Best Practices for Supervisors,” Presenter (6/22/20)

•

Barran Liebman Client Training: “Form I-9s, Telecommuting Policies, & Workplace Accommodations During COVID-19,” Presenter (6/11/20)

•

Barran Liebman Client Training: “Phase 2 Reopening: Virus-Related Accommodations, & Compliance Considerations,” Presenter (6/11/20)

•

Barran Liebman Client Training: “Re-Opening Your Business: 5 Key Considerations for Employers,” Presenter (5/7/20)

•

Oregon Association of Realtors Webinar: “Drafting an Effective Independent Contractor Agreement,” Presenter (2/13/20)

•

Oregon Association of Realtors Webinar: “Independent Contractors: Best Practices for Compliance With Federal & State Law,” Presenter (10/23/19)

•

Barran Liebman Annual Seminar: “Walking the Tightrope: Sexual Harassment & Settlement

•

Agreements Under Oregon’s Workplace Fairness Act,” Presenter (10/10/19)

•

Barran Liebman Client Training: “HIPAA Training,” Presenter (8/21/19)

•

Associated General Contractors (AGC) Summer Convention: “Hot Topics and Best Practices for the Shifting Landscape of Employment Law,” Co-Presenter (8/9/19)

•

Oregon Fuels Association Annual Conference: “2019 Labor & Employment Law Update,” Presenter (7/15/19)

•

Barran Liebman Client Training: “Supervisor/Manager Training,” Presenter (6/4/19)

•

Barran Liebman Breakfast Seminar: “6 in 60: Advanced HR Strategies & Best Practices for 2019,” Presenter (5/14/19)

•

Barran Liebman Client Training: “Advanced Supervisor Training,” Presenter (5/8/19)

•

Mid-Willamette SHRM Seminar: “Harassment in the Workplace”; “Conducting an Internal Workplace Investigation,” Presenter (4/19/19)

•

SAIF 2019 Workers’ Compensation Seminar: “Employment Law Basics,” Presenter (4/3/19)

•

Oregon Governor’s Occupational Safety & Health Conference: “Employment Law Best Practices,” Presenter (3/6/19)

•

Associated Oregon Loggers Annual Convention: “Employment Law Best Practices,” Presenter (1/19/19)

•

American Payroll Association Portland Metro Chapter: “A Discussion on Pay Equity,” Presenter (11/28/18)

•

Barran Liebman Client Training: “Workers’ Compensation & ADA Accommodation Law,” Presenter (11/2/18)

25

•

Oregon Golf Course Owners Association Conference: “Golf Course Management: Employment Law & Liability,” Presenter (10/28/18)

•

Barran Liebman Client Training: “Safety Training & Employment Law Basics,” Presenter (10/24/18)

•

American Payroll Association Fall Conference: “Payroll Paradise: Deductions, Garnishments, & Oregon’s New Pay Equity Law,” Presenter (10/5/18)

•

Barran Liebman Annual Seminar: “CANOE Survive an ICE Audit? Best Practices for I-9 Compliance & Immigration and Customs Enforcement Interactions,” Presenter (9/27/18)

•

Oregon Workers’ Compensation Annual Educational Conference: “Navigating Marijuana in the Workplace,” Presenter (9/26/18)

•

Barran Liebman Interactive Pay Equity Roundtable: “Oregon’s Equity Laws,” Co-Presenter (7/23/18; 7/24/18; 8/14/18)

•

Mid-Willamette Human Resource Association: “Labor & Employment Law Update,” Presenter (7/10/18)

•

Rogue Valley SHRM Annual Legal Seminar: “Labor & Employment Law Update,” Presenter (5/16/18)

•

Mid-Willamette Valley SHRM Meeting: “Effective Discipline & Discharge,” Presenter (4/24/18)

•

National Electrical Contractors Association: “Employee Handbooks, Workplace Investigations & Documenting Discipline,” Presenter (4/19/18)

•

National Business Institute Human Resource Law Boot Camp: “Employee Handbooks & Policies in the 21st Century”; “Social Media Policies: Balancing Employer Needs & Employee Rights,” (3/12/18)

•

TPD Webinar: “Tax Cuts and Jobs Act: What Your Business Needs to Know,” (2/21/18)

•

Barran Liebman Client Training, “HR Essentials: Legislative Updates and Best Practices,” (2/15/18)

•

Barran Liebman Client Training, “Sexual Harassment Culture Shift: Your Business, Your People, Your Work Environment,” (2/14/18)

•

Northwest EEO: “Employment Law Update,” Presenter (1/16/18)

•

National Business Institute Seminar on Human Resource Law From Start to Finish: “Employment Law Update,” Presenter (10/11/17)

Representative Publications • “COVID-19 Workplace Rule Changes: What Employers Should Know,” Barran Liebman Electronic Alert, April 25, 2022 •

“What Employers Should Know About Lifting COVID-19 Mask Mandates,” Cascade Business News, March 16, 2022

•

“2021 in Review: Notable Cases for Employers to Bear in Mind,” Daily Journal of Commerce, January 28, 2022

•

“Stay on OSHA’s Vaccine or Test Mandate Overturned,” Barran Liebman Electronic Alert, December 21, 2021

•

“Fall 2021: Employment Laws & Policy Updates to Know & Consider,” Cascade Business News, August 18, 2021

•

“A Rebuttable Presumption of Discrimination in Oregon,” Daily Journal of Commerce, June 25, 2021

•

“What Employers Need to Know About PPP Changes,” Oregon Business Report, January 11, 2021

•

“Federal Stimulus Update Part 1: What Employers Need to Know About the PPP,” Barran Liebman Electronic Alert, January 4, 2021

•

“Can Employers Require Workers to Get a COVID-19 Vaccine?,” Barran Liebman Electronic Alert, December 14, 2020

26

•

“What the Oregon Travel Advisory Means for Employees,” Oregon Business Report, December 3, 2020

•

“Does the State’s New Travel Advisory Mean That My Employees Have To Quarantine for 2 Weeks if They Travel for the Thanksgiving Holiday?,” Barran Liebman Electronic Alert, November 24, 2020

•

“COVID Commotion: How to Navigate the Work from Home Waters,” Association of Corporate Counsel Newsletter, June 2020

•

“Four Key Considerations for Employers When the Lockdown Ends,” Daily Journal of Commerce, April 24, 2020

•

“New Federal Emergency Family Leave & Emergency Paid Sick Leave as Part of Coronavirus Aid Package,” Barran Liebman Electronic Alert, March 19, 2020

•

“Layoffs & Mandatory Closures: What Employers Need to Know & Consider,” Barran Liebman Electronic Alert, March 18, 2020

•

“Employers Take Note: New Form I-9 Rollout,” Barran Liebman Electronic Alert, February 24, 2020

•

“U.S. Department of Labor Raises Salary Threshold for Exempt Employees,” Barran Liebman Electronic Alert, September 24, 2019

•

“Seasonal Employees Pitfalls & Tips for Employers,” Cascade Business News, August 7, 2019

•

“Marijuana Policies in the Workplace: What Employers Need to Know,” Cascade Business News, April 17, 2019

•

“Breaking the ICE: Workplace Audits Are on the Rise,” Daily Journal of Commerce, September 28, 2018

•

“Supreme Court Hands Down Highly Anticipated Public Accommodation Ruling,” Cascade Business News, June 20, 2018

•

“New Legislations Taking Effect Starting July 1, 2018,” Barran Liebman Electronic Alert, June 29, 2018

•

“California Supreme Court Imposes Legal Duty of Care on Universities,” Barran Liebman Electronic Alert, April 13, 2018

•

“More Changes to Come in 2018,” Barran Liebman Electronic Alert, January 11, 2018

•

“Tax Cuts and Jobs Act: What Your Business Needs to Know,” Barran Liebman Electronic Alert, December 28, 2017

•

“Employment Expectations: Free Speech & the Workplace,” Cascade Business News, December 20, 2017

•

“Recent Decisions,” Oregon Civil Rights Newsletter, December 2017

•

“Recent Legal Developments,” Oregon Civil Rights Newsletter, September 2017

27

Lighting Round Outline Oregon Association of Defense Counsel Presentation Friday, June 17, 2022 Topic: Techniques for Successfully Challenging the Pleadings Via Pre-Answer Motions to Dismiss 1) The allegations must be plausible, not possible.

2) Iqbal, Twombly, Tesla, and the Golden State Warriors.

Under the Supreme Court’s affirmation of Twombly in Ashcroft v. Iqbal, there is a decided distinction between claims which state a claim for relief which is possible, and those which state a claim for relief which is plausible. The latter of the two is acceptable, while the former is not.

See Ashcroft at 679 (2009) (“where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not ‘shown’—that the pleader is entitled to relief.”).

Although Courts must generally accept allegations in a complaint as true, they are not “required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001); see also Iqbal at 662 (2009). “Taken together, Iqbal and Tombly require well-pleaded facts, not legal conclusions.” Whitaker v. Tesla Motors, Inc., 985 F.3d 1173, 1176 (9th Cir. 2021).

Where the factual content contained within a complaint does not allow a court to reasonably infer an entitlement to relief that is plausible, the complaint fails to satisfy Twombly and Iqbal. See, e.g., Moss v. U.S. Secret Serv., 572 F.3d 962, 971-72 (9th Cir. 2009) (“The factual content contained within the complaint does not allow us to reasonably infer that the Agents ordered the relocation of Plaintiff’s demonstration.).

3) Successful conferral conferences.

4) Attorney fees under ORS 20.105.

5) Dismissal with prejudice – the futility of amendment.

601 SW Second Avenue  Suite 2300  Portland, Oregon 97204-3159  ph: (503) 228-0500  fax: (503) 274-1212

28

OADC Oregon Association of Defense Counsel

2022 OADC ANNUAL CONVENTION CLE MATERIALS LIGHTNING ROUND: Work Products: Why it’s Different than Attorney/Client Privilege

PRESENTED BY

Lauren Blaesing, Markowitz Herbold June 17, 2022 11:15 am to 12:15 pm Sunriver Resort 29

Lauren Blaesing Shareholder

 503-295-3085  LaurenBlaesing@MarkowitzHerbold.com

Lauren is a trial lawyer that enjoys dissecting complex legal problems and learning the ins and outs of her clients’ businesses. She couples her natural attention to detail with a knack for seeing the bigger picture, whether she is focusing on the technical aspects of a client’s operation or the nuances that de ne client disputes. Lauren skillfully ts the individual pieces of a matter into a theme that frames a case and aligns client goals with a winning legal strategy.

Lauren represents business clients in complex disputes. She has litigated cases involving partnership and commercial lease disputes, non-compete and non-solicitation agreements, nancial elder abuse, business torts, breach of contract, class actions, and professional negligence claims. She is recognized as a Rising Star by Oregon Super Lawyers®, and was honored by the University of Oregon School of Law as an Outstanding Young Alumnus in 2019.

Lauren calls upon her formidable research and writing skills to construct persuasive and winning arguments on behalf of her clients. The many examples include: Second-chaired two week bench trial involving a complex real estate contract dispute Defense of class actions in state and federal courts Represented real estate developer in contract dispute clearing the way for a $400 million mixed-use development in Portland Briefed complex procedural and foreign law issues for an international fraud, corruption, and bribery dispute Successfully briefed time-sensitive, back-to-back temporary restraining orders in state and federal court Briefed issues of rst impression in Oregon federal court on the medical peer review privilege in an anti-discrimination case Drafted a nationwide arbitration agreement that has been successfully upheld in multiple states states https://www.markowitzherbold.com/Lauren-Blaesing 1/2 30

6/1/22, 2:48 PM

Lauren Blaesing

states

Lauren is experienced in all stages of discovery and claims investigation including preparing clients and witnesses for deposition, conducting extensive interviews of witnesses on highly technical subjects, and managing large-scale document discovery. Her work includes trial preparation and brie ng as well as active participation in arbitration and mediation negotiations and proceedings.

Before joining Markowitz Herbold, Lauren served as a judicial law clerk for the Honorable David Schuman of the Oregon Court of Appeals, where she gained a broad knowledge of Oregon law and an appreciation for the interworking of the Oregon judicial system. Lauren earned her J.D. from the University of Oregon, School of Law, where she was an articles editor for the Oregon Law Review and a tutor for the legal research and writing program. She also served on the board of the Women’s Law Forum and worked as a judicial extern for Idaho Supreme Court Justice Roger Burdick.

MARKOWITZ HERBOLD 1455 SW Broadway, Suite 1900 Portland, OR 97201 - 503-295-3085 © 2022 Markowitz Herbold PC - All Rights Reserved

31

Work Product Protection OADC June 17, 2022 Presented By: Lauren Blaesing

32

Work product: It’s different, and underappreciated • Documents and tangible things • (and some intangible things like attorney opinions) • Prepared in anticipation of litigation • Prepared by a party or for the party (or its representative) • Can include non-lawyers

33

What is covered by work product?

• Emails between attorney and client about the litigation strategy • Internal memorandum evaluating threatened claims before they are filed • Attorney’s notes on trial strategy (“attorney mental impressions”) • Attorney’s mental impressions shared only verbally (“intangible” work product under Hickman) • Attorney’s selection of key documents • Emails between non-attorney employees of the party where they were sent at the direction of counsel and in anticipation of litigation

34

Limits on work product • “Prepared in anticipation of litigation” is specific in time and scope • WP attaches when the party has a basis for believing litigation is likely (general fear of ever-present litigation not enough) • No WP for document prepared in regular course of business • Was it created “because of” the prospect of litigation? (9th Cir.)

• Not an absolute privilege • Opposing party can obtain in discovery in some circumstances if meet burden to show “a substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means”

35

Waiver rules are different Attorney-client privilege

Work product

• Client waives if voluntarily discloses or consents to disclose any significant part of the confidential communication • Risk of subject matter waiver

• More forgiving • Attorney, not just client, can assert work product • Disclosure to third party does not waive unless “it has substantially increased the opportunity for the adverse party to obtain the information.”

• Generally limited to the materials disclosed

36

Waiver - prevention Do this

Don’t do this

• RPC 1.6(c) reasonable care • Limit to essential recipients and participants • Repeatedly emphasize confidentiality to clients • Label emails, memos, etc.

• Use secure file transfer links • Put claw-back provision in SPO

• Replying and forwarding email chains without pausing to consider contents and recipients

37

QUESTIONS? Lauren Blaesing Markowitz Herbold PC LaurenBlaesing@MarkowitzHerbold.com 503-295-3085

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OADC Oregon Association of Defense Counsel

2022 OADC ANNUAL CONVENTION CLE MATERIALS LIGHTNING ROUND: ORS 30.140: Issues and Practice Tips on the Duty to Defend in Construction Defect Matters

PRESENTED BY

Kevin Sasse, Dunn Carney June 17, 2022 11:15 am to 12:15 pm Sunriver Resort 39

Kevin T. Sasse Kevin Attorney T. Sasse Attorney Kevin is a member of Dunn Carney’s litigation team. Prior to joining Dunn Carney, Kevin spent three years practicing

insurance recovery and litigation. From that experience, and as a former CPA and internal auditor for the State of Ohio, he knows the practical value of testing every assumption and scrutinizing the smallest details for their relevance and Litigation application.(https://www.dunncarney.com/practice-area/litigation-dispute-resolution/) KEY EXPERTISE

Appellate (https://www.dunncarney.com/practice-area/litigation-dispute-resolution/appellate/)

Through his experiences externing at the Michigan Supreme Court, the United States Court of Appeals for the Sixth Circuit, and the Michigan Court of Appeals, and clerking for the Oregon Tax Court, he knows what litigation strategies are CONTACT effective for a wide variety of cases, whether setting the stage for trial or pursuing relief on appeal.

503.306.5339 Kevin graduated magna cum laude from Michigan State University College of Law, where he was a managing editor of 503.224.7324 Fax the Journal of Business and Securities Law and a moot court board member.  Kevin T. Sasse

 Kevin believes that nothing can replace the work accomplished by local organizations. He has served on committees  Aurora Hood, Paralegal for the Multnomah Bar Association’s Young Lawyers Section and serves on the Portland Opera Ambassador Board,

where he helps build interest in the opera among young patrons. You will also see him volunteering his time to various organizationsvCard in the (/delivery/vcf/3597) Portland metro area.

Download

Print (/delivery/pdf/3597) In his free time, Kevin enjoys climbing, mountaineering, and trail running. He is also a season subscriber to Portland Opera and Oregon Ballet Theatre.

Admissions Oregon Education Michigan State University College of Law, J.D., magna cum laude The University of Findlay, B.S., Economics The University of Findlay, B.S., Accounting with emphasis in Financial and Managerial, cum laude

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ORS 30.140 Issues and Practice Tips on the Duty to Defend in Construction Defect Matters What is ORS 30.140?

•

ORS 30.140 applies to “construction agreements,” and prohibits any provision requiring a person or that person’s insurer to indemnify another against liability for damage or injury caused in whole or in part by the negligence of the indemnitee. o However, ORS 30.140 does not prevent an agreement that requires a person to indemnify the indemnitee for the person’s own fault. o Basically, a contractor is only required to indemnify another contractor for its own fault.

•

“Construction agreements” are broadly defined to mean “any written agreement for the planning, design, construction, alteration, repair, improvement or maintenance of any building, highway, road excavation or other structure, project, development or improvement attached to real estate including moving, demolition or tunneling in connection therewith.” o ORS 30.140 has been applied to suppliers that specially manufactured materials for a construction project. See First Mercury Ins. Co. v. Westchester Surplus Lines Ins. Co., 152 F. Supp. 3d 1320, 1323–24 (D. Or. 2016), aff’d 731 F. App’x 716 (9th Cir. 2018).

Why should I care about ORS 30.140?

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As defense counsel, you have a responsibility to review all applicable construction agreements and issue tenders as appropriate. You will need to evaluate whether another party’s response is appropriate.

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Although many indemnity disputes may concern settlement funding, the value of a defense can be significant.

What if the plaintiff did not name any other defendants?

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Not dispositive. West Hills Dev. Co. v. Chartis Claims, Inc. Or. Auto. Ins. Co., 360 Or. 650, 665 (2016) (rejecting argument that a complaint must “rule in” coverage and holding coverage was triggered even though “policy only covered West Hills for L&T’s liability” and “the complaint did not name L&T or allege that West Hills was liable for L&T’s negligence”).

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Look for claims of supervision, or allegations of subcontractors or agents.

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When does ORS 30.140 apply?

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Clearly applies when a claim “indisputably” arises out of the fault of the indemnitee. See Sunset Presbyterian Church v. Andersen Const. Co., 268 Or. App. 309 (2014); Sec. Nat’l Ins. Co. v. Sunset Presbyterian Church, 289 Or. App. 193 (2017).

•

Less clear if a claim may or may not arise out of the fault of the indemnitee. Homeland Ins. Co. of New York v. AAM, Inc., No. 3:15-cv-01745-PK, 2016 WL 2841944 (D. Or. May 13, 2016).

Doesn’t the “defend-one-defend-all” rule apply?

•

No. See Sunset Presbyterian Church v. Andersen Const. Co., 268 Or. App. 309 (2014) (other contractors via an indemnification agreement); Sec. Nat’l Ins. Co. v. Sunset Presbyterian Church, 289 Or. App. 193 (2017) (their insurers).

How do I allocate defense costs?

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Keep careful billing records!

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Break up tasks between those attributable solely to indemnifiable claims and those attributable solely to claims not indemnifiable.

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Also break out tasks that are attributable to the case as a whole.

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No appellate decision addressing allocation pursuant to ORS 30.140.

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An Oregon court might apply the Lamb-Weston rule from the insurance world and have the parties apportion defense costs on a pro-rata basis. See Lamb -Weston, Inc. v. Or. Auto. Ins. Co., 219 Or. 110, 341 P.2d 110 (1959).

Does a jury have to apportion fault before defense costs can be allocated?

•

No, defense costs can be allocated after a settlement. See Sunset Presbyterian Church v.

Andersen Const. Co., 268 Or. App. 309 (2014); Sec. Nat’l Ins. Co. v. Sunset Presbyterian Church, 289 Or. App. 193 (2017).

Should my client enter into a cost-sharing agreement?

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Maybe. Your client may find some peace in knowing that it won’t have to follow up any settlement or jury verdict with continued litigation over apportionment of defense costs.

In Sec. Nat’l Ins. Co. v. Sunset Presbyterian Church, 289 Or. App. 193 (2017), the parties stipulated on remand to the amount of fees that should be allocated.

What if I waived subrogation or indemnity?

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ORS 30.145 essentially says that a party to a construction agreement cannot accomplish what is prohibited under ORS 30.140 via a waiver of subrogation.

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OADC Oregon Association of Defense Counsel

2022 OADC ANNUAL CONVENTION CLE MATERIALS LIGHTNING ROUND: Construction Mediation Tips, Tricks and Trends

PRESENTED BY

Jaimie Fender, Macmillan, Scholz & Marks June 17, 2022 11:15 am to 12:15 pm Sunriver Resort 43

a

JAIMIE FENDER jfender@msmlegal.com

JAIMIE FENDER jfender@msmlegal.com Jaimie has been a practicing attorney in the Portland metro area since 2012. Prior to joining MacMillan, Scholz & Marks LLC, Jaimie worked for a Seattle-based �rm focusing on mortgage and lending litigation.

6/1/22, 2:51 PM

Jaimie Fender MSM Legal a highly regarded Prior to that, Jaimie worked with Stuart M. - Brown,

Portland Litigator; focusing predominantly business and area since Jaimie has been a practicing attorney in theon Portland metro

https://msmlegal.com/attorneys/jaimie-fender/

commercial litigation.

Though born in Oregon and a proud University 2012. Prior to joining MacMillan, Scholz & Marks LLC, Jaimie worked

1/3

of Oregon alumnus,�rm Jaimie worked Paris for 3and years at the for a Seattle-based focusing oninmortgage lending litigation.

Organization Economic Development to Prior to that, for Jaimie workedCooperation with Stuart and M. Brown, a highlyprior regarded moving to London for law school. https://msmlegal.com/attorneys/jaimie-fender/

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Jaimie is a very active member of the legal community. Before aging out, she served for many years on the Executive Committee of the Oregon New Lawyers Division of the Oregon State Bar. She was 44

selected as the 2017 Volunteer of the Year and her groundbreaking 5

of Oregon alumnus, Jaimie worked in Paris for 3 years at the Organization for Economic Cooperation and Development prior to moving to London for law school.

Jaimie is a very active member of the legal community. Before aging out, she served for many years on the Executive Committee of the Oregon New Lawyers Division of the Oregon State Bar. She was selected as the 2017 Volunteer of the Year and her groundbreaking 5 part CLE series entitled “Uncommonly Discussed Veterans Issues” was named the 2017 Project of the Year. Jaimie was the 2018 Chair of the Military & Veterans Law Section of the Oregon State Bar. More recently, Jaimie served as the Co-Chair of the Multnomah Bar Association’s Equity, Diversity and Inclusion Ambassadors subcommittee and as an At Large Member of the Executive Committee of the Military & Veterans Law Section. Currently, she is the Chair of the Women in Law Af�nity Group of the Oregon Association of Defense Counsel, an Emerge Oregon 2021 alumnus, and the Mayor of King City, Oregon.



EDUCATION

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PROFESSIONAL INVOLVEMENT

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PUBLICATIONS

U.S. NEWS & WORLD REPORT NAMES MACMILLAN, SCHOLZ & MARKS IN “BEST LAW FIRMS” RANKINGS

by MSM Legal https://msmlegal.com/attorneys/jaimie-fender/

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CLE OUTLINE

Title: Construction Defect Mediation Tips, Tricks and Trends

Outline: The recent retirement of Mike Scott, who was the primary mediator for construction defect (CD) lawsuit, left a gaping void in this specific niche. I will discuss the current landscape of CD mediations, breaking the discussion up with tips, tricks and trends.

Tips & Tricks: CD mediations are complicated. You must be familiar with construction means and methods, heavily rely on your experts input, and understand natural degradation vs actual defective construction. There are often insurance coverage issues which can interfere with the desire to settle. I will discuss several tips and tricks that I and others have found helpful to achieve a successful outcome.

Obstacles: I will discuss obstacles practitioners frequently come across during settlement negotiations and mediations in the CD world; and ideas on how to best address them.

Trends: I will discuss the current landscape of CD mediations following Mike Scott’s retirement. I will interview several current CD mediators to obtain their observations on the current trends. I will discuss my observations and trends I have experienced.

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OADC Oregon Association of Defense Counsel

2022 OADC ANNUAL CONVENTION CLE MATERIALS LIGHTNING ROUND: Moody: Where we are 6 Months in Bad Faith in Oregon PRESENTED BY

Christina Ho June 17, 2022 11:15 am to 12:15 pm Sunriver Resort 47

Christina Ho I have over a decade of experience in litigation. My practice focuses on first and third party litigation. I have conducted successful arbitrations and trials in Oregon and Washington. In addition to trial work, I’ve assisted in, and conducted hundreds of examinations under oath in California, Oregon and Washington on first party SIU matters.

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OADC Sunriver 2022 Lightening Round Outline – Moody v. Oregon Community Credit Union and Federal Insurance Company: Where we are Six Months into Bad Faith in Oregon Christina Anh Ho, P.K. Schrieffer LLP I. •

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II. •

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III. • • • • IV.

Overview of Mood v. Oregon Community Credit Union and Federal Insurance Company Facts Christine Moody (“Plaintiff”), who was the beneficiary to her husband’s life insurance policy, brought suit against Federal Insurance Company (“Defendant”) for unreasonably denying her claim for accidental loss of life benefits after her husband’s death.

Federal Insurance had contracted to provide life insurance benefits of $3,000 to be paid in the event of Troy Moody’s death. He was accidentally shot and killed while on a camping trip.

The Sheriff’s toxicology report stated there was evidence Mr. Moody had tested positive for marijuana, and as such, the Defendant asserted the exclusion applied.

Plaintiff’s position was Mr. Moody died because he was shot and not because he was under the influence of marijuana.

Moody Holding The court held Plaintiff was entitled to bring a negligence per se claim against the insurer for violating an independent standard of care laid out in ORS 746.230(1)(d) and (f) The court ruled plaintiff was entitled to damages for pain and suffering.

In recognizing a negligence per se claim arising out of the alleged breach of insurance contract, the Court analyzed the claim under the elements of negligence per se which requires: (1) defendant violated a statute; (2) plaintiff was injured as a result of that violation; (3) plaintiff was a member of the class of persons meant to be protected by the statute, and; (4) the injury plaintiff suffered is of a type that the statute was enacted to prevent.

Changes at the claim investigation and EUO stage due to Moody Increase in requests for claim documents prior to EUO Increase in requests for recorded statements prior to EUO Letters requesting same, cite to Moody signaling insured’s counsels setting up bad faith at claim stage How to deal with this? o Letters in response asserting work product and addressing why insurer does not have an obligation to provide documents Post Moody Complaints and Take Aways

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• • • • V. VI. • •

Review of Post-Moody Complaints: Imholt v. Farmers Ins. Co.; Jenkins v. Foremost Complaint Increase in prayer amount due to noneconomic damages Reserving the right to move for punitive damages – note Moody did not limit the type of damages so we are seeing the result of this now Mental anguish due to Plaintiff’s inability to obtain necessary medical care in UIM breach claim, but this could apply to PIP as well Status of Appeal of Moody How to deal with lack of clarity in Moody and new allegations in Complaints Post – Moody We need rulings for clarity Rule 21 Motions

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Moody v. Oregon Community Credit Union and Federal Insurance Company: Where we are Six Months into Bad Faith in Oregon Presented by: Christina Anh Ho

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Overview of Moody Facts: Christine Moody (“Plaintiff”), who was the beneficiary to her husband’s life insurance policy, brought suit against Federal Insurance Company (“Defendant”) for unreasonably denying her claim for accidental loss of life benefits after her husband’s death.

Federal Insurance had contracted to provide life insurance benefits of $3,000 to be paid in the event of Troy Moody’s death. He was accidentally shot and killed while on a camping trip.

Defendant asserted its policy exclusion that any accidents caused by or resulting from the insured being under the influence.

The Sheriff’s toxicology report stated there was evidence Mr. Moody had tested positive for marijuana, and as such, the Defendant asserted the exclusion applied.

Plaintiff’s position was Mr. Moody died because he was shot and not because he was under the influence of marijuana.

Plaintiff brought suit and alleged Defendant was negligent per se under ORS 746.230(1) and Defendant’s negligence had caused her emotional distress. ORS 746.230(1) provides that an insurer may not refuse to pay claims without conducting a reasonable investigation or fail to attempt in good faith to promptly and equitably settle claims when liability is reasonably clear. Plaintiff alleged $3,000 in economic damages and $47,000 in noneconomic damages.

Procedural Posture: Defendant moved to dismiss the negligence per se claim and strike the allegation of damages for emotional distress on the ground that a negligence claim may not be predicated on a breach of the insurance policy. The trial court granted Defendant’s Motion.

Court of Appeals Holding: The court held Plaintiff was entitled to bring a negligence per se claim against the insurer for violating an independent standard of care laid out in ORS 746.230(1)(d) and (f) The court ruled plaintiff was entitled to damages for pain and suffering.

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Moody’s Holding In recognizing a negligence per se claim arising out of the alleged breach of insurance contract, the Court analyzed the claim under the elements of negligence per se which requires: (1) defendant violated a statute; (2) plaintiff was injured as a result of that violation; (3) plaintiff was a member of the class of persons meant to be protected by the statute, and; (4) the injury plaintiff suffered is of a type that the statute was enacted to prevent.

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Requests for Claim Documents at the Investigation Stage

Many times, when an insured is represented by counsel, their attorney will request copies of the insured’s recorded statements and other documents prepared by the insurer in the investigation prior to the examination under oath (“EUO”). However, at the EUO stage, there is no obligation to provide such documents, and many are protected by the work product doctrine.

After Moody, not only was there an increase in requests for claim file documents and recorded statements of the insureds, but such requests were also accompanied by a citation to Moody.

This signals insured’s counsels are preparing for a bad faith case at the EUO stage and are planning on relying, at least in part, on an insurer not providing claim file documents and/or recorded statements in such litigation.

How to deal with this? Make sure to address the request in writing and be specific about why documents are not being provided, i.e. work product. Invite insured’s counsel to provide authority the insured is entitled to such documents.

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Analyzing a Post-Moody Complaint Laurie Imholt v. Farmers Ins. Co. of Oregon – Alleged breach of UIM and PIP benefits 

Excerpts from the Complaint:

***

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

Laurie Imholt v. Farmers Ins. Co. of Oregon – Excerpts from the Complaint Continued…

***

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Laurie

Imholt v. Farmers Ins. Co. of Oregon – Excerpts from the Complaint Continued…

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Laurie Imholt v. Farmers Ins. Co. of Oregon – Excerpts from the Complaint Continued…

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Laurie Imholt v. Farmers Ins. Co. of Oregon – Excerpts from the Complaint Continued…

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Higher prayer amounts due to the inclusion of non-economic damages, what may have once been a $50,000 or $100,000 exposure case, can now be a case with exposure into the millions

Post–Moody Complaint Trends

Plaintiff claiming the denial of the claim resulted in the inability to obtain medical treatment which caused mental anguish

Plaintiff’s reserving the right to or indicating he/she intends to move for punitive damages How can we address post-Moody Complaints seeking punitive damages, as well as other damages the Moody Court did not specifically address? We need rulings on Rule 21 and MSJs to clarify what damages will and will not be permitted

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2/28/2022 3:11 PM 22CV07254

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2/25/2022 1:36 PM 22CV06948

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IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR THE COUNTY OF YAMHILL 22CV06948 EMILY JENKINS, ) Case No. ________ ) Plaintiff, ) COMPLAINT ) v. ) (Breach of Insurance ) Contract; Negligence Per Se) FOREMOST INSURANCE COMPANY ) GRAND RAPIDS, MICHIGAN, ) (Not Subject to Mandatory ) Arbitration) Defendant. ) ) JURY TRIAL REQUESTED ) ) Fee Authority: ORS ) 21.160(1)(c) ) ) Prayer Amount: $775,000

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CLAIM FOR RELIEF (Breach of Insurance Contract)

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COUNT 1 (Express Contract)

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1.

20 21 22

Plaintiff Emily Jenkins (“plaintiff”) is, and at all times mentioned herein was an, Oregon resident and the owner of a home located at 9540 SE Eola Hills Road, Amity, Oregon (the “property”).

BONAPARTE & BONAPARTE, LLP

Page 1 – COMPLAINT 72

ONE SW COLUMBIA STREET, NO. 460 PORTLAND, OR 97204 TELEPHONE (503) 242-0005 email: bob@bb-law.net stephen@bb-law.net

1

2.

2

Defendant Foremost Insurance Company Grand Rapids, Michigan

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(“defendant”) is, and at all times mentioned herein was, an insurance

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provider conducting business in Oregon.

3.

5 6 7

Defendant issued a homeowners insurance policy No. 1030922077376-20 (the “policy”) to plaintiff. The policy was issued for valuable consideration in the form of policy premiums, which were paid by plaintiff.

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4.

Pursuant to the policy, defendant insured plaintiff’s home and agreed

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to pay for accidental losses, including damage to structure and contents, and additional living expenses (“ALE”).

5.

12 13

While the policy was in force, in August 2020, plaintiff suffered an accidental fire loss.

6.

14

The losses suffered by plaintiff fall within the coverage of defendant’s

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policy. Pursuant to the terms of the policy, plaintiff sought payment from defendant for all her damages. Defendant has refused to pay all of plaintiff’s damages.

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7.

Defendant’s denial and refusal to pay all of plaintiff’s damages

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constitutes a breach of the insurance contract. /// /// /// BONAPARTE & BONAPARTE, LLP

Page 2 – COMPLAINT 73

ONE SW COLUMBIA STREET, NO. 460 PORTLAND, OR 97204 TELEPHONE (503) 242-0005 email: bob@bb-law.net stephen@bb-law.net

1

8.

2 3

As a result of defendant’s breach of contract, plaintiff has been damaged in the amount of $275,000.

9.

4

Plaintiff is entitled to attorney fees under ORS 742.061.

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COUNT 2 (Implied Covenant)

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10.

8

Plaintiff realleges and incorporates by reference the allegations in

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paragraphs 1-9.

11.

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Defendant failed to make payment, refused to make payment, and

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delayed payment for the accidental losses, in violation of the policy of

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insurance, thus causing damages to plaintiff.

12.

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Defendant violated the implied covenant of good faith and fair dealing in failing properly to investigate the loss, adjust the claim, and pay plaintiff for all the damages sustained:

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a. In August 2020, plaintiff suffered an accidental fire loss.

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b. Plaintiff promptly reported the loss, and provided proper proof of loss.

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c. Defendant has repudiated the contract.

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d. Plaintiff has supplied all information and documentation

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requested by defendant.

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///

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/// BONAPARTE & BONAPARTE, LLP

Page 3 – COMPLAINT 74

ONE SW COLUMBIA STREET, NO. 460 PORTLAND, OR 97204 TELEPHONE (503) 242-0005 email: bob@bb-law.net stephen@bb-law.net

1 2 3

13.

It was foreseeable to defendant that if it breached its obligations under the insurance policy, plaintiff would suffer damages.

14.

4 5 6

As a result of the breach of contract by defendant, plaintiff has suffered damages as set forth in paragraph 8.

SECOND CLAIM FOR RELIEF (Negligence Per Se)

7 8

9 10 11 12

15.

The allegations in paragraphs 1-14 are incorporated herein by reference.

16.

Because defendant is a corporation that sells insurance and provides insurance coverage to Oregon consumers, the Oregon Legislature through

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ORS 746.230 requires defendant to follow a standard of care in the

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performance of its insurance contracts independent of, in addition to, and

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outside of the terms of the insurance contract.

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17.

Defendant negligently performed its obligations under ORS 746.230 in its review, investigation, and eventual decision to deny insurance benefits

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following the devastating accidental loss suffered by plaintiff in one or more

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of the following ways:

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a. By refusing to pay the full insurance benefits without conducting a reasonable investigation based on all available information, in violation of ORS 746.230(1)(d);

22 BONAPARTE & BONAPARTE, LLP

Page 4 – COMPLAINT 75

ONE SW COLUMBIA STREET, NO. 460 PORTLAND, OR 97204 TELEPHONE (503) 242-0005 email: bob@bb-law.net stephen@bb-law.net

1

b. By failing to affirm or deny coverage of claims within a

2

reasonable time after proof of loss, in violation of ORS

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746.230(1)(e);

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c. By not attempting, in good faith, to promptly and equitably settle a claim in which the insurer's liability has become reasonably clear, in violation of ORS 746.230(1)(f); d. By compelling plaintiff to initiate this litigation to recover amounts due by offering substantially less than the amount of

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the covered loss pled as damages in this action, in violation of

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ORS 746.230(1)(g); and

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e. By attempting to settle claims for less than the amount to which a reasonable person would believe a reasonable person was entitled after referring to written or printed advertising material accompanying or made part of an application, in violation of ORS 746.230(1)(h).

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Defendant knew, or in the exercise of reasonable care as a corporation engaged in the business of marketing and selling insurance, should have known, that one or more of its foregoing acts or omissions would create a highly unreasonable risk of harm to plaintiff. In committing those acts

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and/or omissions, defendant either intentionally disregarded the duty of care

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it owed to plaintiff under ORS 746.230(1)(d)-(h) or was, at minimum,

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recklessly indifferent to the obligations it owed plaintiff pursuant to its statutory duties of care. Plaintiff plans to amend this complaint to include a claim for punitive damages.

22 BONAPARTE & BONAPARTE, LLP

Page 5 – COMPLAINT 76

ONE SW COLUMBIA STREET, NO. 460 PORTLAND, OR 97204 TELEPHONE (503) 242-0005 email: bob@bb-law.net stephen@bb-law.net

1

19.

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As a result of defendant's negligent performance of its statutory

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obligations when administering the insurance contract, the insured suffered

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the economic loss of the value of the contractual benefit.

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20.

As a result of defendant’s negligent performance of its statutory obligations when administering the insurance contract, the insured suffered the noneconomic loss of increased emotional distress and anxiety caused by

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having fewer financial resources to navigate her devastating accidental loss,

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in an amount not to exceed $500,000.

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WHEREFORE, plaintiff prays for relief from defendant as follows: a. On the FIRST CLAIM FOR RELIEF: For damages in the amount of $275,000; b. On the SECOND CLAIM FOR RELIEF: For non-economic damages in the amount of $500,000; c. For prejudgment interest at the legal rate from August 15, 2020; d. For plaintiff’s attorney fees, costs and disbursements herein; and e. For such other relief as the court deems just and proper.

Dated February 25, 2022.

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BONAPARTE & BONAPARTE, LLP By /s/Robert E.L. Bonaparte Robert E.L. Bonaparte, OSB No. 883411 Stephen D. Leggatt, OSB #036013 Of Attorneys for Plaintiff Emily Jenkins

21 22 BONAPARTE & BONAPARTE, LLP

Page 6 – COMPLAINT 77

ONE SW COLUMBIA STREET, NO. 460 PORTLAND, OR 97204 TELEPHONE (503) 242-0005 email: bob@bb-law.net stephen@bb-law.net

OADC Oregon Association of Defense Counsel

2022 OADC ANNUAL CONVENTION CLE MATERIALS LIGHTNING ROUND: The State of Common-Law Indemnity in Oregon and the Real-World Effects of Eclectic I & II

PRESENTED BY

Connor King, Watkinson Laird Rubenstein June 17, 2022 11:15 am to 12:15 pm Sunriver Resort 78

Con

After Co Law, he b experien construc injury, pr few year Eugene a

Connor D. King After Connor graduated from the University of Oregon School of Law, he began his career litigating in Portland where he gained experience handling a variety of cases concerning everything from construction defect, product liability, and copyrights to personal injury, premises liability, and wrongful death. After practicing for a few years in Portland, Connor couldn’t resist returning to his roots in Eugene at Watkinson Laird Rubenstein, P.C. Connor represents both plaintiffs and defendants at all stages of litigation from pre-suit to resolution. Connor’s practice currently includes representing clients in lawsuits concerning breach of contract, property disputes, trust and estate disputes, and more.

Outside of work, Connor enjoys reading, playing tennis, spending time with his w ife and three daughters, and getting out to the Oregon coast as often as possible.

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Connor r litigation includes contract,

Outside time with Oregon c

OADC Oregon Association of Defense Counsel

2022 OADC ANNUAL CONVENTION CLE MATERIALS LIGHTNING ROUND: Expert Discovery and Motions for Summary Judgement in Oregon

PRESENTED BY

Elizabeth Esfeld, Preg O’Donnell & Gillett June 17, 2022 11:15 am to 12:15 pm Sunriver Resort 80

Anna Elizabeth “Lizz” Anna Elizabeth “Liz” Esfield Esfeld

Home » Attorneys » Oregon » Anna Elizabeth “Lizz” Esfeld

Associate, Associate, Preg O’Donnell & Gillett

Areas Practice Email:of aesfeld@pregodonnell.com Business Litigation Vcard:

Seattle Professional Experience Lizz has of handled a wide-range of civil litigation matters including insurance defense, commercial, Areas Practice Members construction, employment, personal injury, malpractice, and insurance coverage claims. She has gainedBusiness a wide range of knowledge by defending clients in a number industries with complicated Litigation Eric of P. Gillett legal issues. She has signi cant pre-trial and trial experience and has obtained defense verdicts at Mark F. O’Donnell trial as well as won at arbitration and settled matters prior to trial.

Justin E. Bolster John K.where Butlershe represented clients Prior to relocating to Portland, Lizz practiced for six years in Chicago, in all aspects of litigation. She has presented CLEs on audit trials, and mindfulness William T. Cornell and the law.

Outside of work Lizz is a certi ed yoga instructor, loves to travel, and is learning woodworking and Jeffrey W.Nepali.

Daly Emma O. Gillespie Education J. Hansen Lizz earned herExperience Juris Doctor from DePaul College of Law in 2013. While in law school, sheBennett competed for the DePaul Appellate Professional Moot Court Team. She was champion of the William J. Bauer Moot Court Competition in Chicago, best oralist and quarterLori K. O’Tool Lizz has a wide-range of civil litigation matters insurance nalist athandled the National Juvenile Law Competition in Costaincluding Mesa, California, and semi- nalist at the David M.National Poore First Amendment Competition in Nashville, Tennessee.

DePaul College of Law’s faculty elected her to the Order of the Barristers, a national defense, commercial, construction, employment, personal injury, malpractice, Of Counsel honors societycoverage recognizing achievement in written andrange oral advocacy.

She also received the CALI Excellence for the Future and insurance claims.

She has gained a wide of knowledge Award in Civil Litigation Strategy. by defending clients in a number of industries with complicated legal issues.

David Cottnair She has signi cant pre-trial and trial experience and has obtained defense Lizz attended Truman State University where she received a Bachelor of Science, Cum Laude, While at Truman State, Jason in A.biology.

Harrington verdicts at trial as well as wonPresident, at arbitration settled matters prior Committee, to Lizz served as Student Body Chairand of the Vision Document and Chair of the Student Debra Dickerson Academic Affairs Committee as well as student representative to Faculty Senate, and the Curriculum Commission. She was also involved in the trial.

Christine E. Tavares Beta Beta Beta and Omicron Delta Kappa honors fraternities.

Prior to relocating to Portland, Lizz practiced for six years in Chicago, where Associates Admitted to Practice she represented clients in all aspects of litigation. She has presented CLEs Oregon State Courts (OSB #192527) Stephanie B. on audit trials, and mindfulness and the law. Outside of work Lizz is a Ballard Illinois State Courts (ARDC #6312751) certi ed yoga instructor, loves to travel, and is learning woodworking and Naomi I. Ahsan Washington State Courts (WSBA #55895) Nepali.

United States District Court for Oregon https://www.pregodonnell.com/attorneys/portland/anna-elizabeth-liz-esfeld/

1/3 United States District Court for the Northern District of Illinois United States District Court for the Western District of Washington

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OADC Oregon Association of Defense Counsel

2022 OADC ANNUAL CONVENTION CLE MATERIALS A Supreme Overview PRESENTED BY

Tom Dupree, Gibson Dunn, Washington D.C. June 18, 2022 8:00 – 9:00 am Sunriver Resort 82

Thomas H. Dupree Jr. Thomas H. Dupree Jr. is Co-Partner-in-Charge of the Washington, DC office of Gibson, Dunn & Crutcher, co-chair of the firm’s nationwide Appellate and Constitutional Law practice group, and a member of the firm’s litigation department.

Mr. Dupree is an experienced trial and appellate advocate. He has argued more than 90 appeals in the federal courts, including in all thirteen circuits as well as the United States Supreme Court. He has represented clients throughout the country in a wide variety of trial and appellate matters, including cases involving punitive damages, class actions, product liability, arbitration, intellectual property, employment, and constitutional challenges to federal and state statutes. Chambers and Partners has named Mr. Dupree one of the leading appellate lawyers in the United States every year from 2012 through 2022.

Mr. Dupree previously served in the United States Department of Justice. He was appointed Deputy Assistant Attorney General for the Civil Division, and later became the Principal Deputy Assistant Attorney General. In that capacity, he served as the division’s second-in-command, overseeing the more than 900 lawyers in the Civil Appellate, Commercial, Federal Programs and Torts branches, as well as the Office of Immigration Litigation and the Office of Consumer Litigation. Mr. Dupree was responsible for managing many of the government’s most significant cases involving regulatory, commercial, constitutional and national security matters on behalf of virtually all of the federal agencies, the White House, and senior federal officials. Before being named the division’s top deputy, Mr. Dupree ran its largest litigating branch, managing a staff of 280 lawyers.

Legal Times has called Mr. Dupree “no stranger to high-profile work.” Among other things, he played a substantial role in the successful representation of George W. Bush before the United States Supreme Court in Bush v. Gore, and represented New England Patriots quarterback Tom Brady in challenging his “Deflategate” suspension.

Mr. Dupree argued and won, by a unanimous 9-0 vote, a landmark personal jurisdiction case in the United States Supreme Court, Daimler AG v. Bauman. For this achievement, American Lawyer magazine named him Litigator of the Week, noting that he “won over both the liberal and conservative wings of the court.”

In 2021, American Lawyer again named Mr. Dupree its Litigator of the Week. This time he was recognized for winning a highprofile appeal in the midst of the chaos enveloping the U.S. Capitol on January 6.

Other matters Mr. Dupree has handled include: •

Persuading the Supreme Court to grant a petition for certiorari on behalf of a major automobile manufacturer and to vacate a $290 million punitive damage award, which had been the largest personal injury award ever affirmed on appeal in United States history.

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Winning an appeal on behalf of Jerry and Jessica Seinfeld in the United States Court of Appeals for the Second Circuit in a copyright and trademark case involving the New York Times #1 bestselling book Deceptively Delicious.

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Persuading a federal court of appeals to reverse and decertify one of the largest employment discrimination class actions ever certified in the United States.

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Winning an appeal for singer-songwriter Bob Dylan in a multimillion-dollar breach of contract case.

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Successfully representing Facebook and its CEO Mark Zuckerberg in a federal lawsuit arising from the plaintiff’s fraudulent claim of a significant ownership stake in Facebook.

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Successfully representing superagent Scott Boras in confidential baseball-related arbitrations.

Mr. Dupree appears frequently on national television as a legal analyst. He is a regular guest on Fox News Channel and MSNBC. He has also appeared on NBC Nightly News, PBS NewsHour, ABC World News Tonight, and Good Morning America, as well as on CNN, CNBC, Bloomberg, Court TV, and C-Span. He has been quoted in numerous print publications, including the New York Times, the Wall Street Journal, the Washington Post, the Los Angeles Times and many others, discussing legal issues and

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developments. In addition, Mr. Dupree has testified before Congress on constitutional and separation-of-powers issues, including the President’s authority to act through executive order.

Mr. Dupree graduated cum laude from Williams College, and with Honors from the University of Chicago Law School, where he served as an Editor of the University of Chicago Law Review. After law school, he clerked for the Honorable Jerry E. Smith of the United States Court of Appeals for the Fifth Circuit.

Education University of Chicago - 1997 Juris Doctor Williams College - 1992 Bachelor of Arts Admissions District of Columbia Bar

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SUPREME COURT OF THE UNITED STATES OCTOBER TERM 2021 Argued Cases 1. Wooden v. United States, No. 20-5279 (6th Cir., 945 F.3d 498; cert. granted Feb. 22, 2021; argued Oct. 4, 2021). Whether offenses that were committed as part of a single criminal spree, but sequentially in time, were “committed on occasions different from one another” for purposes of a sentencing enhancement under the Armed Career Criminal Act. Decided Mar. 7, 2022 (595 U.S. ). Sixth Circuit/Reversed. Justice Kagan for a unanimous Court (Sotomayor, J., concurring; Kavanaugh, J., concurring; Barrett, J., joined by Thomas, J., concurring in part and concurring in the judgment; Gorsuch, J., joined in part by Sotomayor, J., concurring in the judgment). The Court held that “[c]onvictions arising from a single criminal episode” are not committed on separate “occasions.” The ordinary meaning of “occasion” suggests that offenses committed at the same time, in the same place, and as part of the same scheme compose one occasion. And statutory history, too, suggests that Congress enacted the “occasions” clause to prevent enhanced sentences based on multiple offenses committed as part of a single criminal spree. Because a defendant who commits multiple related crimes on the same evening is not—for that reason—a “career criminal,” the Court declined to apply the ACCA’s sentencing enhancement.

2. Mississippi v. Tennessee, No. 22O143 (Original Jurisdiction; exceptions to the Report of the Special Master filed Feb. 22, 2021; exceptions opposed Apr. 23, 2021; case set for oral argument in due course July 2, 2021; argued Oct. 4, 2021). The Questions Presented are: (1) Whether the Court will grant Mississippi leave to file an original action to seek relief from respondents’ use of a pumping operation to take approximately 252 billion gallons of high-quality groundwater. (2) Whether Mississippi has sole sovereign authority over and control of groundwater naturally stored within its borders, including in sandstone within Mississippi’s borders.

(3) Whether Mississippi is entitled to damages, injunctive, and other equitable relief for the Mississippi intrastate groundwater intentionally and forcibly taken by respondents.

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Decided Nov. 22, 2021 (595 U.S. ). Exceptions overruled in part and sustained in part; case dismissed without leave to amend. Chief Justice Roberts for a unanimous Court. The Court held that interstate aquafers are subject to the doctrine of equitable apportionment. The City of Memphis, Tennessee, sources drinking water from the Middle Claiborne Aquifer, which underlies multiple States, including Mississippi. To resolve disputes about interstate surface water, the Supreme Court applies the doctrine of equitable apportionment, which “aims to produce a fair allocation of a shared water resource between two or more States.” The Court concluded that the same doctrine should apply to interstate aquifers, since water in the aquifers is a transboundary resources that flows naturally between different States. Mississippi does not have sovereign ownership of all groundwater beneath its surface, because each State into which the water could naturally flow shares an interest in that water. Nor does Tennessee invade Mississippi land to draw water—its wells are drilled straight down and do not cross state lines. And because Mississippi neither sought leave to amend nor offered a proposed amended complaint seeking equitable apportionment, the Court dismissed without leave to amend.

3. Hemphill v. New York, No. 20-637 (N.Y., 150 N.E. 3d 356; cert. granted Apr. 19, 2021; argued Oct. 5, 2021). Whether, or under what circumstances, a criminal defendant, whose argumentation or instruction of evidence at trial “opens the door” to the admission of responsive evidence that would otherwise be barred by the rules of evidence, also forfeits his right to exclude evidence otherwise barred by the Confrontation Clause.

Decided Jan. 20, 2022 (595 U.S. ). New York Court of Appeals/Reversed and remanded. Justice Sotomayor for an 8–1 Court (Alito, J., joined by Kavanaugh, J., concurring; Thomas, J., dissenting). The Court held that the Confrontation Clause bars the introduction of unconfronted testimonial hearsay whether or not it is reasonably necessary to correct a misleading impression made by the defendant. The Supreme Court held in Crawford v. Washington, 541 U.S. 36 (2004), that the Confrontation Clause prohibits the government from introducing unconfronted testimonial hearsay unless an exception to that rule was established at the time of the Founding. Under New York law, however, a defendant could “open the door” by offering misleading argument or evidence that unconfronted testimonial hearsay was reasonably necessary to rebut. The Court determined that petitioner properly presented his constitutional challenge to that rule below and, on the merits, that the rule is inconsistent with Crawford. New York did not argue that the “opening the door” rule “was an exception to the right to confrontation at common law.”

And the Court rejected New York’s argument that the rule was merely a procedural rule regarding how a defendant properly objects to unconfronted testimonial hearsay, as opposed to a “substantive principle of evidence that dictates what material is relevant and admissible in a case.” Under the Confrontation Clause, trials judges have no authority to decide whether a defendant’s argument is “unreliable, incredible, or otherwise misleading in light 2 86

of” unconfronted testimonial hearsay. Nor may judges overlook that Clause’s command in order to safeguard the courts’ truth-finding function. Because the trial court did so, the Court reversed.

4. Brown v. Davenport, No. 20-826 (6th Cir., 975 F.3d 537; cert. granted Apr. 5, 2021; argued Oct. 5, 2021). Whether a federal habeas court may grant relief based solely on its conclusion that the test from Brecht v. Abrahamson is satisfied, as the U.S. Court of Appeals for the 6th Circuit held, or whether the court must also find that the state court’s application of Chapman v.

California was unreasonable under 28 U.S.C. § 2254(d)(1), as the U.S. Courts of Appeals for the 2nd, 3rd, 7th, 9th and 10th Circuits have held.

Decided Apr. 21, 2022 (596 U.S. ). Sixth Circuit/Reversed. Justice Gorsuch for an 6–3 Court (Kagan, J., joined by Breyer and Sotomayor, J.J., dissenting).

The Court held that “[w]hen a state court has ruled on the merits of a state prisoner’s claim, a federal court cannot grant relief without first applying both the test th[e] Court outlined in Brecht and the one Congress prescribed in [the Antiterrorism and Effective Death Penalty Act of 1996 (‘AEDPA’).” “When Congress supplies a constitutionally valid rule of decision,” as it did in AEDPA, “federal courts must follow it.” The equitable rule articulated in Brecht and the rule Congress supplied in AEDPA both aimed at the same result—separating meritorious habeas petitions from the growing number of meritless petitions.

But the AEDPA inquiry is not a logical subset of the Brecht test—the inquiries are different, and so are the legal materials a court may consult. And although the Court had previously stated that Brecht “subsumes” AEDPA’s test, it did not mean that would always be true. Rather, if the state court has not adjudicated a claim on the merits, AEDPA does not apply; and if a claim fails under Brecht, there is no need to apply AEDPA. But none of the Court’s prior cases considered a claim that succeeded under Brecht and failed under AEDPA, and stare decisis does not compel the Court to search “for stray comments and stretch them beyond their context.”

5. United States v. Zubaydah, No. 20-827 (9th Cir., 938 F.3d 1123; cert. granted Apr. 26, 2021; argued Oct. 6, 2021). Whether the U.S. Court of Appeals for the 9th Circuit erred when it rejected the United States’ assertion of the state-secrets privilege based on the court’s own assessment of potential harms to the national security, and required discovery to proceed further under 28 U.S.C. § 1782(a) against former Central Intelligence Agency contractors on matters concerning alleged clandestine CIA activities.

Decided Mar. 3, 2022 (595 U.S. ). Ninth Circuit/Reversed and remanded.

Justice Breyer for a 7–2 Court as to the merits, and a 6–3 Court as to the judgment of dismissal (Thomas, J., joined by Alito, J., concurring in part and concurring in the judgment; Kavanaugh, J., joined by Barrett, J., concurring in part; Kagan, J., concurring in part and dissenting in part; Gorsuch, J., joined by

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Sotomayor, J., dissenting). The Court held that the government could invoke the state secrets privilege to prevent former CIA contractors from confirming or denying the location of a detention site. Respondent sought discovery from former CIA contractors, seeking to confirm (or deny) public reporting that he had been held at a detention site in Poland. Any response to his discovery requests, the Court held, would tend to confirm or deny the location of his detention site. And the government had reasonably explained why such confirmation or denial could harm national security interests—specifically, “a former CIA insider’s confirmation of confidential cooperation between the CIA and a foreign intelligence service could damage the CIA’s clandestine relationships with foreign authorities.” And such confirmation is “different in kind” from press speculation, since it “leaves virtually no doubt as to the veracity of the information that has been confirmed.” Nor does it matter that the confirmation would come from former CIA contractors, given their “central role in the relevant events.” Moreover, respondent’s need to know the location of his detention was “not great.” As a result, the Court remanded with instructions to dismiss respondent’s discovery application.

6. Cameron v. EMW Women’s Surgical Center, P.S.C., No. 20-601 (6th Cir., 831 F. App’x 748; cert. granted Mar. 29, 2021; argued Oct. 12, 2021). Whether a state attorney general vested with the power to defend state law should be permitted to intervene after a federal court of appeals invalidates a state statute when no other state actor will defend the law.

Decided Mar. 3, 2022 (595 U.S. ). Sixth Circuit/Reversed and remanded.

Justice Alito for an 8–1 Court (Thomas, J., concurring; Kagan, J., joined by Breyer, J., concurring in the judgment; Sotomayor, J., dissenting). The Court held that the Sixth Circuit erred in denying the Kentucky attorney general’s motion to intervene. The attorney general sought to intervene for the purpose of filing a petition for rehearing en banc after the Sixth Circuit struck down a Kentucky abortion law and Kentucky’s secretary for Health and Family Services declined to seek further review. The Court reasoned that the Kentucky attorney general was not jurisdictionally barred from intervening, nor prohibited from doing so by a mandatory claims processing rule. And it concluded that the Sixth Circuit has abused its discretion in denying intervention. For one thing, the court of appeals erred as a matter of law by failing “to account for the strength of the Kentucky attorney general’s interest in taking up the defense” of the law. For another, the court erred in concluding that the motion to intervene was not timely, since it was filed just two days after the attorney general learned that the secretary would not seek further review.

7. Thompson v. Clark, No. 20-659 (2d Cir., 794 F. App’x 140; cert. granted Mar. 11, 2021; argued Oct. 12, 2021). Whether the rule that a plaintiff must await favorable termination before bringing a Section 1983 action alleging unreasonable seizure pursuant to legal process requires the plaintiff to show that the criminal proceeding against him has “formally 4 88

ended in a manner not inconsistent with his innocence,” as the U.S. Court of Appeals for the 11th Circuit held, or that the proceeding “ended in a manner that affirmatively indicates his innocence,” as the U.S. Court of Appeals for the 2d Circuit held.

Decided Apr. 4, 2022 (596 U.S. ). Second Circuit/Reversed and remanded.

Justice Kavanaugh for a 6–3 Court (Alito, J., joined by Thomas and Gorsuch, J.J., dissenting). The Court held that “[t]o demonstrate a favorable termination of a criminal prosecution for purposes of the Fourth Amendment claim under § 1983 for malicious prosecution, a plaintiff need only show that his prosecution ended without a conviction.” The Court’s precedents recognize a Fourth Amendment claim for unreasonable seizure pursuant to legal process. To flesh out the elements of that claim under Section 1983, courts look to the most analogous tort as of 1871, when Section 1983 was enacted—in this case, malicious prosecution. And to bring a malicious prosecution claim, plaintiffs must show “favorable termination” of the criminal proceedings against them. In 1871, most courts had held that favorable termination meant that “the prosecution ended without a conviction,” even if the prosecutor abandoned the case or the court dismissed without explanation. And several courts had held that “a favorable termination did not require an acquittal or a dismissal accompanied by some affirmative indication of innocence.” “Because the American tort-law consensus as of 1871 did not require a plaintiff in a malicious prosecution suit to show that his prosecution ended with an affirmative indication of innocence,” the Court “similarly construe[d] the Fourth Amendment claim under §1983 for malicious prosecution.”

8. United States v. Tsarnaev, No. 20-443 (1st Cir., 968 F.3d 24; cert. granted Mar. 22, 2021; argued Oct. 13, 2021). The Questions Presented are: (1) Whether the U.S. Court of Appeals for the 1st Circuit erred in concluding that the defendant’s capital sentence must be vacated on the ground that the district court, during its 21-day voir dire, did not ask each prospective juror for a specific accounting of the pretrial media coverage that he or she had read, heard, or seen about the case. (2) Whether the district court committed reversible error at the penalty phase of the trial by excluding evidence that the defendant’s older brother was allegedly involved in different crimes two years before the offenses for which the defendant was convicted.

Decided Mar. 4, 2022 (595 U.S. ). First Circuit/Reversed. Justice Thomas for an 6–3 Court (Barrett, J., joined by Gorsuch, J., concurring; Breyer, J., joined in part by Sotomayor and Kagan, J.J., dissenting). The Court held that the First Circuit improperly vacated respondent Dzhokhar Tsarnaev’s capital sentence for his role in the Boston Marathon bombing. First, the Court concluded that the district court “did not abuse its broad discretion by declining to ask about the content and extent of each juror’s media consumption regarding the bombings.” Focusing on each juror’s media consumption, the district court 5 89

reasonable decided, would improperly emphasize what each juror knew before coming to court, rather than on potential bias. And the district court in fact asked potential jurors generally about their media consumption and engagement. To the extent a court of appeals may exercise “supervisory power” to set rules for district courts, the First Circuit exceeded its authority by supplanting “the district court’s broad discretion to manage voir dire” and “prescribing specific lines of questioning.” Second, the Court concluded that the district court did not err in excluding evidence linking Tamerlan Tsarnaev to an unsolved triple homicide. Since there “was no allegation that Dzhokhar had any role in that crime,” and no “way to confirm or verify the relevant facts,” the court’s conclusions that the evidence lacked probative value and would confuse the jury were reasonable. And although the Eighth Amendment requires the sentence to consider mitigating circumstances in the death-penalty context, it does not deprive district courts of their traditional authority to determine that certain types of evidence are inadmissible. Because the district court had not erred, the Court reversed the First Circuit’s judgment vacating respondent’s capital sentence.

9. Babcock v. Kijakazi, No. 20-480 (6th Cir., 959 F.3d 210; cert. granted Mar. 1, 2021; argued Oct. 13, 2021). Whether a civil service pension received for federal civilian employment as a “military technician (dual status)” is “a payment based wholly on service as a member of a uniformed service” for the purposes of the Social Security Act’s windfall elimination provision.

Decided Jan. 13, 2022 (595 U.S. ). Sixth Circuit/Affirmed. Justice Barrett for an 8–1 Court (Gorsuch, J., dissenting). The Court held that civil-service pension payments based on employment as a “dual-status military technician” are not based wholly on service as a member of a uniformed service. Social Security benefits are generally reduced when a retiree receives benefits from a separate pension plan. But this “windfall” reduction does not apply to “a payment based wholly on service as a member of a uniformed service.” 42 U.S.C. § 415(a)(7)(A)(III). Petitioner served for many years as a “dual-status military technician.” In that role, he was a civilian employee charged with assisting the military in training and maintenance, but he was also required to be a member of the National Guard and wear a uniform while working. The Court conclude that this was not service “as” a member of the National Guard. The word “as” means “[i]n the role, capacity, or function of,” and petitioner served in the role, capacity, or function of a civilian. And the statutory scheme as a whole distinguishes between technician employment and National Guard service. The mere fact that petitioner’s membership in and wearing the uniform of the National Guard were conditions of his employment did not erase that distinction.

10. Whole Woman’s Health v. Jackson, No. 21-463 (5th Cir.; cert. before judgment granted Oct. 22, 2021; argued Nov. 1, 2021). Whether a State can insulate from federal-court review a law that prohibits the exercise of a 6 90

constitutional right by delegating to the general public the authority to enforce that prohibition through civil actions.

Decided Dec. 10, 2021 (595 U.S. ). Western District of Texas/Affirmed in part, reversed in part, and remanded to Fifth Circuit. Justice Gorsuch for a 5–4 Court with respect to defendant state-court clerk and the Texas Attorney General, for an 8–1 Court with respect to defendant licensing officials, and for a unanimous Court with respect to defendant state-court judge and a privateindividual defendant (Thomas, J., concurring in part and dissenting in part; Roberts, C.J., joined by Breyer, Sotomayor, and Kagan, J.J., concurring in the judgment in part and dissenting in part; Sotomayor, J., joined by Breyer and Kagan, J.J., concurring in the judgment in part and dissenting in part). The Court held that petitioners’ pre-enforcement challenge to S.B. 8 could proceed against defendant licensing officials, but could not proceed against the statecourt clerk, the Texas Attorney General, the state-court judge, or the privateindividual defendant. Texas enacted a statute, known as the Texas Heartbeat Act or S.B. 8, that generally prohibits abortions “if the physician detected a fetal heartbeat for the unborn child.” Tex. Health & Safety Code Ann. §§ 171.204(a), 171.205(a). S.B. 8 generally does not permit the State to enforce the Act, but instead directs enforcement through private civil actions against those who perform or assist prohibited abortions. Applicants sued numerous defendants seeking a pre-enforcement injunction against S.B. 8. The district court denied the Texas officials’ motion to dismiss on the ground of sovereign immunity. While their appeal was pending, the Fifth Circuit stayed proceedings in the district court, and petitioners sought emergency injunctive relief from the Court. The Court first held that the state-court judge and state-court clerk were entitled to sovereign immunity. Although Ex parte Young created an exception to sovereign immunity for suits seeking injunctive relief against state executive officials, the Court declined to extend that exception to state-court judges or clerks. Also, the Court explained, those officials were not adverse to petitioners, as required for Article III jurisdiction, nor was it clear what remedy could be imposed against them. The Court next held that the Texas Attorney General was entitled to sovereign immunity. According to the Court, the Attorney General does not possess “any enforcement authority” with respect to S.B. 8, nor would an injunction against the Attorney General run against “any and all unnamed private persons who might seek to bring their own S.B. 8 suits.” With respect to defendant licensing officials, however, the plurality concluded that they fell within Ex parte Young’s exception because it appeared, “at least based on the limited arguments put to [the Court] at this stage of the litigation,” “that the licensing defendants do have authority to enforce S.B. 8.”

And petitioners had “plausibly alleged that S.B. 8 ha[d] already had a direct effect on their day-to-day operations.” The Court then held that petitioners lacked standing to sue the private-individual defendant because he had disclaimed any intent to file suit under S.B. 8. Finally, responding to the dissent, the majority explained that “many paths exist to vindicate the supremacy of federal law in this area.” Petitioners could sue the defendant 7 91

licensing officials, they could potentially file a pre-enforcement suit in state court, or they could raise constitutional arguments in defending against an S.B. 8 suit. The Court thus affirmed the district court’s judgment in part and reversed it in part. Subsequently, the Court granted petitioners’ motion to issue the mandate immediately, but remanded to the Fifth Circuit, not to the district court, as petitioners had requested.

11. Houston Community College System v. Wilson, No. 20-804 (5th Cir., 955 F.3d 490; cert. granted Apr. 26, 2021; argued Nov. 2, 2021). Whether the First Amendment restricts the authority of an elected body to issue a censure resolution in response to a member’s speech.

Decided Mar. 24, 2022 (595 U.S. ). Fifth Circuit/Reversed. Justice Gorsuch for a unanimous Court. The Court held that the First Amendment does not prevent an elected body from issuing a verbal censure in response to a member’s conduct of official business. As a general matter, the First Amendment prohibits the government from taking retaliatory actions in response to protected speech. But “elected bodies in this country have long exercised the power to censure their members” from the founding until the present, and “no evidence” suggests that “prior generations thought an elected representative’s speech might be ‘abridg[ed]’ by that kind of countervailing speech from his colleagues.” Contemporary doctrine confirms this understanding. To bring a First Amendment retaliation claim, a plaintiff must show some “adverse action.” But a verbal censure of an elected official is not a materially adverse action; to the contrary, respondent did not change his speech or conduct after he was censured. A censure accompanied by punishment or of a non-elected official might be different, but a purely verbal censure of a member of an elected body does not violate the First Amendment.

12. Badgerow v. Walters, No. 20-1143 (5th Cir., 975 F.3d 469; cert. granted May 17, 2021; argued Nov. 2, 2021). Whether federal courts have subject matter jurisdiction to confirm or vacate an arbitration award under Sections 9 and 10 of the Federal Arbitration Act (“FAA”) when the only basis for jurisdiction is that the underlying dispute involved a federal question.

Decided Mar. 31, 2022 (596 U.S. ). Fifth Circuit/Reversed and remanded.

Justice Kagan for an 8–1 Court (Breyer, J., dissenting). The Court held that a court assessing subject matter jurisdiction under Sections 9 and 10 of the FAA “may look only to the application actually submitted” and may not “lookthrough” to the underlying dispute. In Vaden v. Discover Bank, 556 U.S. 49 (2009), the Court held that Section 4 of the FAA, which governs petitions to compel arbitration, instructs federal courts to look to the underlying dispute in assessing subject matter jurisdiction. But Vaden relied on the specific language of Section 4, which directs courts to assess whether, “save for [the arbitration] agreement,” they would have jurisdiction over “the controversy between the

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parties.” Id. at 62. Sections 9 and 10, by contrast, do not include a “save for” clause or mention subject matter jurisdiction at all. Giving effect to Congress’s difference statutory language, the Court reasoned, required it to conclude that the “look-through” method did not apply. And even if respondent’s policy concerns with simplicity, uniformity, and a broader role for federal courts in arbitration were well founded, policy concerns cannot overcome clear statutory directives.

13. New York State Rifle & Pistol Association Inc. v. Corlett, No. 20-843 (2d Cir., 818 F. App’x 99; cert. granted Apr. 26, 2021; argued Nov. 3, 2021).

Whether the State’s denial of petitioners’ applications for concealed-carry licenses for self-defense violated the Second Amendment.

14. Unicolors, Inc. v. H&M Hennes & Mauritz, LP, No. 20-915 (9th Cir., 959 F.3d 1194; cert. granted June 1, 2021; argued Nov. 8, 2021). Whether the U.S. Court of Appeals for the 9th Circuit erred in breaking with its own prior precedent and the findings of other circuits and the Copyright Office in holding that 17 U.S.C. § 411 requires referral to the Copyright Office where there is no indicia of fraud or material error as to the work at issue in the subject copyright registration.

Decided Feb. 24, 2022 (595 U.S. ). Ninth Circuit/Vacated and remanded.

Justice Breyer for a 6–3 Court (Thomas, J., joined by Alito and Gorsuch, J.J., dissenting). The Court held that lack of knowledge of either fact or law can excuse an inaccuracy in a copyright registration. Under 17 U.S.C. § 411(b)(1)(4), a copyright registration containing inaccurate information is valid so long as the copyright holder lacked “knowledge that it was in accurate.”

Nothing in the text of the statute, the Court reasoned, distinguishes between knowledge of the facts and knowledge of the law. And nearby statutory provisions confirm that the word “knowledge” refers to “actual subjective awareness of both the facts and the law.” Moreover, cases predating § 411 excused mistakes of law, and the legislative history suggests that Congress intended to make is easier for nonlawyers to obtain valid copyright registrations.

Of course, nothing requires courts to accept a copyright holder’s assertion of ignorance of the law, and willful blindness may support a finding of knowledge.

15. Federal Bureau of Investigation v. Fazaga, No. 20-828 (9th Cir., 965 F.3d 1015; cert. granted June 7, 2021; argued Nov. 8, 2021). Whether Section 1806(f) of the Foreign Intelligence Surveillance Act of 1978 (“FISA”) displaces the state secrets privilege and authorizes a district court to resolve, in camera and ex parte, the merits of a lawsuit challenging the lawfulness of government surveillance by considering the privileged evidence.

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Decided Mar. 4, 2022 (595 U.S. ). Ninth Circuit/Reversed and remanded.

Justice Alito for a unanimous Court. The Court held that Section 1806(f) of the FISA does not displace the state secrets privilege. The parties disputed whether Section 1806(f) applies at all in the context of a civil lawsuit seeking to obtain secret surveillance information. But the Court declined to resolve that dispute.

Instead, it reasoned that even if Section 1806(f) applies in that context, it does not displace the state secrets privilege. The statute says nothing about the privilege, and courts should not read statutory silence to abrogate common-law or constitutional privileges. Nor is there any clash between the statute and the privilege, since they call for different inquiries, authorize different forms of relief, and require different procedures. Thus, the Court concluded, “Congress did not eliminate, curtail, or modify the state secrets privilege when it enacted § 1806(f).”

16. United States v. Vaello-Madero, No. 20-303 (1st Cir., 956 F.3d 12; cert. granted Mar. 1, 2021; argued Nov. 9, 2021). Whether Congress violated the equal-protection component of the due process clause of the Fifth Amendment by establishing Supplemental Security Income (“SSI”)—a program that provides benefits to needy aged, blind and disabled individuals—in the 50 states and the District of Columbia, and in the Northern Mariana Islands pursuant to a negotiated covenant, but not extending it to Puerto Rico.

Decided Apr. 21, 2022 (596 U.S. ). First Circuit/Reversed. Justice Kavanaugh for an 8–1 Court (Thomas, J., concurring; Gorsuch, J., concurring; Sotomayor, J., dissenting). The Court held that the equal protection component of the Fifth Amendment’s Due Process Clause does not require Congress to extend SSI to residents of Puerto Rico. The Territory Clause, art. IV, § 3, cl. 2, gives Congress “broad authority to legislate with respect to the U.S. Territories.” And Congress has long exercised that authority by imposing different taxes on—and extending different benefits to—Territories as opposed to States. The Supreme Court upheld such differential treatment under rationalbasis review in Califano v. Torres, 435 U.S. 1 (1978) (per curiam), and Harris v. Rosario, 446 U.S. 651 (1980) (per curiam). Those precedents dictated the result in this case: Congress need only satisfy the rational-basis test, and it had a rational basis for declining to extend SSI benefits, having exempted residents of Puerto Rico “from most federal income, gift, estate, and excise tax.”

17. Ramirez v. Collier, No. 21-5592 (5th Cir.; cert. granted Sept. 8, 2021; argued Nov. 9, 2021). The Questions Presented are: (1) Whether Texas’s decision to forbid a pastor from laying his hands on the defendant during execution substantially burdens the defendant’s exercise of religion. (2) Whether Texas’s decision to forbid a pastor from saying prayers or scripture during the defendant’s execution substantially burdens the defendant’s exercise of religion.

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Decided Mar. 24, 2022 (595 U.S. ). Fifth Circuit/Reversed and remanded.

Chief Justice Roberts for an 8–1 Court. The Court held that petitioner was likely to succeed on his claim that Texas’s refusal to permit his pastor to lay hands on and pray over him during his execution violated the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), and that the other preliminary injunction factors justified relief. As a threshold matter, the Court concluded that petitioner properly exhausted available administrative remedies for his claim. On the merits, the Court first concluded that petitioner was likely to show that his requests were based on a sincere religious belief; laying on hands and praying “are traditional forms of religious exercise.” Because the State did not dispute that it would substantially burden petitioner’s religious exercise, it was required to satisfy strict scrutiny. But the State did not show that it was likely to carry that burden. “[T]here is a rich history of clerical prayer at the time of a prisoner’s execution, dating back well before the founding” and continuing throughout our Nation’s history. And the State did not show that forbidding such prayer was the least restrictive means of serving its interests in monitoring the prisoner or preventing disruption. Nor did the State show that a “categorical ban on touch” was the least restrictive means of accomplishing its interests in “security in the execution chamber, preventing unnecessary suffering, and avoiding further emotional trauma to the victim’s family members.” The Court also concluded that petitioner had shown irreparable harm, since he would “be unable to engage in protected religious exercise in the final moments of his life.” And the other factors tipped in petitioner’s favor since the State could accommodate his religious exercise “without delaying or impeding his execution.” Thus, if the State rescheduled petitioner’s “execution and decline[d] to permit audible prayer or religious touch,” the district court should grant a preliminary injunction.

18. City of Austin v. Reagan National Advertising of Texas Inc., No. 20-1029 (5th Cir., 972 F.3d 696; cert. granted June 28, 2021; argued Nov. 10, 2021).

Whether the Austin city code’s distinction between on-premise signs, which may be digitized, and off-premise signs, which may not, is a facially unconstitutional content-based regulation under Reed v. Town of Gilbert.

Decided Apr. 21, 2022 (596 U.S. ). Fifth Circuit/Reversed and remanded.

Justice Sotomayor for an 6–3 Court (Breyer, J., concurring; Alito, J., concurring in the judgment in part and dissenting in part; Thomas, J., joined by Gorsuch and Barrett, J.J., dissenting). The Court held that Austin’s distinction between on-premise and off-premise signs was facially content neutral. In Reed v. Town of Gilbert, 576 U.S. 155 (2015), the Court held that a speech regulation is facially content based if it “target[s] speech based on its communicative content”—that is, if it “applies to particular speech because of the topic discussed or the idea or message expressed.” Id. at 163. But the Fifth Circuit interpreted Reed too broadly when it held that a regulation is content based merely because it requires “reading the sign at issue.” Reed’s concern was the possibility of singling out specific content of differential treatment, not 11 95

distinguishing speech based on location. And the Court’s prior cases recognized that some restrictions—such as regulation of solicitation—may require evaluation of the content of speech yet remain content neutral. Indeed, the Court had previously described on-/off-premise distinctions as content neutral. To be sure, Reed said that some content-based distinctions “defin[e] regulated speech by its function or purpose.” But the principle Reed articulated was merely that “a regulation of speech cannot escape classification as facially content based simply by swapping an obvious subject-matter distinction for a ‘function or purpose’ proxy that achieves the same result.” Even though Austin’s distinction was facially content neutral, however, it might still violate the First Amendment if it was adopted to pursue and impermissible purpose or if its fails intermediate scrutiny. But the Court left those questions to the lower courts.

19. Becerra v. Empire Health Foundation, No. 20-1312 (9th Cir., 958 F.3d 873; cert. granted July 2, 2021; argued Nov. 29, 2021). Whether, for purposes of calculating additional payments for hospitals that serve a “significantly disproportionate number of low-income patients,” the Secretary of Health and Human Services has permissibly included in a hospital’s Medicare fraction all of the hospital’s patient days of individuals who satisfy the requirements to be entitled to Medicare Part A benefits, regardless of whether Medicare paid the hospital for those particular days.

20. Cummings v. Premier Rehab Keller, P.L.L.C., No. 20-219 (5th Cir., 948 F.3d 673; CVSG Nov. 2, 2020; cert. supported May 25, 2021; cert. granted July 2, 2021; argued Nov. 30, 2021). Whether the compensatory damages available under Title VI of the Civil Rights Act of 1964 and the statutes that incorporate its remedies for victims of discrimination, such as the Rehabilitation Act and the Affordable Care Act, include compensation for emotional distress.

21. American Hospital Association v. Becerra, No. 20-1114 (D.C. Cir., 967 F.3d 818; cert. granted July 2, 2021; argued Nov. 30, 2021). The Questions Presented are: (1) Whether deference under Chevron U.S.A. v. Natural Resources Defense Council permits the Department of Health and Human Services to set reimbursement rates based on acquisition cost and vary such rates by hospital group if it has not collected adequate hospital acquisition cost survey data. (2) Whether petitioners’ suit challenging HHS’s adjustments is precluded by 42 U.S.C. § 1395l(t)(12).

22. Dobbs v. Jackson Women’s Health Organization, No. 19-1392 (5th Cir., 945 F.3d 265; cert. granted May 17, 2021; argued Dec. 1, 2021). Whether all pre-viability prohibitions on elective abortions are unconstitutional.

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23. Hughes v. Northwestern University, No. 19-1401 (7th Cir., 953 F.3d 980; CVSG Oct. 5, 2020; cert. supported May 25, 2021; cert. granted July 2, 2021; argued Dec. 6, 2021). Whether allegations that a defined-contribution retirement plan paid or charged its participants fees that substantially exceeded fees for alternative available investment products or services are sufficient to state a claim against plan fiduciaries for breach of the duty of prudence under the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1104(a)(1)(B).

Decided Jan. 24, 2022 (595 U.S. ). Seventh Circuit/Vacated and remanded.

Justice Sotomayor for a unanimous Court. The Court held that the Seventh Circuit should have considered whether petitioners plausibly alleged that respondents violated the duty of prudence articulated in Tibble v. Edison Int’l, 575 U.S. 523 (2015), rather than relying on the investment options respondents made available. In Tibble, the Court decided that ERISA plan fiduciaries have an ongoing duty to monitor plan investments and remove imprudent investments. Petitioners alleged that respondents violated that duty by retaining investment options with excessive fees while “neglecting to provide cheaper and otherwise-identical alternative investments.” The Seventh Circuit rejected that claim because respondents had offered the types of low-cost investment options petitioners wanted. “The Seventh Circuit erred,” the Court concluded, “in relying on the participants’ ultimate choice over their investments to excuse allegedly imprudent decisions by respondents.” The mere fact that respondents also offered prudent investment options was insufficient. As a result, the Court vacated and remanded for the Seventh Circuit to determine whether petitioners stated a claim under Tibble.

24. Patel v. Garland, No. 20-979 (11th Cir., 971 F.3d 1258; cert. granted June 28, 2021; argued Dec. 6, 2021). Whether 8 U.S.C. § 1252(a)(2)(B)(i) preserves the jurisdiction of federal courts to review a nondiscretionary determination that a noncitizen is ineligible for certain types of discretionary relief.

25. United States v. Taylor, No. 20-1459 (4th Cir., 979 F.3d 203; cert. granted July 2, 2021; argument scheduled Dec. 7, 2021). Whether 18 U.S.C. § 924(c)(3)(A)’s definition of “crime of violence” excludes attempted Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a).

26. Shinn v. Ramirez, No. 20-1009 (9th Cir., 937 F.3d 1230; cert. granted May 17, 2021; argued Dec. 8, 2021). Whether application of the equitable rule the Supreme Court announced in Martinez v. Ryan renders the Antiterrorism and Effective Death Penalty Act, which precludes a federal court from considering evidence outside the state-court record when reviewing the merits of a claim for habeas relief if a prisoner or his attorney

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has failed to diligently develop the claim’s factual basis in state court, inapplicable to a federal court’s merits review of a claim for habeas relief.

27. Carson v. Makin, No. 20-1088 (1st Cir., 979 F.3d 21; cert. granted July 2, 2021; argued Dec. 8, 2021). Whether a state violates the religion clauses or Equal Protection Clause of the United States Constitution by prohibiting students participating in an otherwise generally available student-aid program from choosing to use their aid to attend schools that provide religious, or “sectarian,” instruction.

28. Gallardo v. Marstiller, No. 20-1263 (11th Cir., 963 F.3d 1167; cert. granted July 2, 2021; argued Jan. 10, 2022). Whether the federal Medicaid Act provides for a state Medicaid program to recover reimbursement for Medicaid’s payment of a beneficiary’s past medical expenses by taking funds from the portion of the beneficiary’s tort recovery that compensates for future medical expenses.

29. Johnson v. Arteaga-Martinez, No. 19-896 (3d Cir.; cert. granted Aug. 23, 2021; argued Jan. 11, 2022). Whether an alien who is detained under 8 U.S.C. § 1231 is entitled by statute, after six months of detention, to a bond hearing at which the government must prove to an immigration judge by clear and convincing evidence that the alien is a flight risk or a danger to the community.

30. Garland v. Gonzalez, No. 20-322 (9th Cir., 955 F.3d 762; cert. granted Aug. 23, 2021; argued Jan. 11, 2022). The Questions Presented are: (1) Whether an alien who is detained under 8 U.S.C. § 1231 is entitled by statute, after six months of detention, to a bond hearing at which the government must prove to an immigration judge that the alien is a flight risk or a danger to the community. (2) Whether, under 8 U.S.C. § 1252(f)(1), the courts below had jurisdiction to grant classwide injunctive relief.

31. Boechler, P.C. v. CIR, No. 20-1472 (8th Cir., 967 F.3d 760; cert. granted Sept. 30, 2021; argued Jan. 12, 2022). Whether the 30-day time limit to file a petition for review in the Tax Court of a notice of determination from the commissioner of internal revenue in 26 U.S.C. § 6330(d)(1) is a jurisdictional requirement or a claim-processing rule subject to equitable tolling.

Decided Apr. 21, 2022 (596 U.S. ). Eighth Circuit/Reversed and remanded.

Justice Barrett for a unanimous Court. The Court held that the 30-day time limit to file a petition for review in the Tax Court is a nonjurisdictional deadline subject to equitable tolling. Jurisdictional deadlines cannot be waived or forfeited, must be raised by the court sua sponte, and are not subject to equitable tolling. In recent years, the Supreme Court has repeatedly clarified that 14 98

particular deadlines are jurisdictional only if Congress clearly so provides.

Section 6330(d)(1) states that a “person may, within 30 days of a determination under this section, petition the Tax Court for review of such determination (and the Tax Court shall have jurisdiction with respect to such matter).” Although the government argued that the words “such matter” in the jurisdictional grant referred to the entire first clause, including the 30-day deadline, the Court concluded that the text did “not clearly mandate” that reading. And nothing else in the text or structure of the statute resolved the ambiguity in favor of the jurisdictional reading. So although the government might have the better reading of the text, “in this context, better is not enough.” Moreover, the Court found no reason to depart from the presumption that nonjurisdictional deadlines are subject to equitable tolling in appropriate cases.

32. Shurtleff v. Boston, No. 20-1800 (1st Cir., 986 F.3d 78; cert. granted Sept.

30, 2021; argued Jan. 18, 2022). The Questions Presented are: (1) Whether the First Circuit’s application of the “forum doctrine” under the First Amendment conflicts with Supreme Court precedent. (2) Whether the First Circuit’s classification of the speech at issue as government speech conflicts with Supreme Court precedent. (3) Whether the First Circuit’s finding that government approval of the proposed display transformed private speech into government speech conflicts with Supreme Court precedent.

33. Cassirer v. Thyssen-Bornemisza Collection Foundation, No. 20-1566 (9th Cir., 824 F. App’x 452, 862 F.3d 951; cert. granted Sept. 30, 2021; argued Jan. 18, 2022). Whether a federal court hearing state law claims brought under the Foreign Sovereign Immunities Act (“FSIA”) must apply the forum state’s choice-of-law rules to determine what substantive law governs the claims at issue, or whether it may apply federal common law.

Decided Apr. 21, 2022 (596 U.S. ). Ninth Circuit/Vacated and remanded.

Justice Kagan for a unanimous Court. The Court held that a court in an FSIA suit raising non-federal claims against a foreign state should apply the forum’s choice-of-law rules. Under the FSIA, when a foreign state is no immune, it “shall be liable in the same manner and to the same extent as a private individual under like circumstances.” 28 U.S.C. § 1606. That section compels the conclusion that courts should apply the same choice-of-law rules that they would apply in a suit between private parties. Otherwise, the substantive law governing a suit under the FSIA would differ from the law governing private suits. And in this suit, that means applying California’s choice-of-law rule— “because that is the rule a court would use in comparable private litigation,” whether in state or federal court. Even if Section 1606 were “not so clear,” the Court would likely have reached the same result, since there is “scant justification for federal common lawmaking in this context.”

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34. Concepcion v. United States, No. 20-1650 (1st Cir., 991 F.3d 279; cert. granted Sept. 30, 2021; argued Jan. 19, 2022). Whether, when deciding if it should “impose a reduced sentence” on an individual under Section 404(b) of the First Step Act of 2018, a district court must or may consider intervening legal and factual developments.

35. FEC v. Cruz, No. 21-12 (D.D.C.; jurisdiction postponed Sept. 30, 2021; argued Jan. 19, 2022). The Questions Presented are: (1) Whether appellees have standing to challenge the statutory loan-repayment limit of 52 U.S.C. § 30116(j). (2) Whether the loan-repayment limit violates the Free Speech clause of the First Amendment.

36. Biden v. Missouri, No. 21A240 (8th Cir.; consolidated with Becerra v.

Louisiana, No. 21A241 (5th Cir.); argued Jan. 7, 2022). Applications seeking stays of orders enjoining Health and Human Services regulation requiring healthcare facilities participating in Medicare and Medicaid to require their staff to be vaccinated from COVID-19.

Decided Jan. 13, 2022 (595 U.S. ). Applications granted; injunctions stayed.

Per Curiam (Thomas, J., joined by Alito, Gorsuch, and Barrett, J.J., dissenting; Alito, J., joined by Thomas, Gorsuch, and Barrett, J.J., dissenting). The Court held that the Secretary of Health and Human Services was authorized to promulgate an interim final rule requiring recipients of Medicare and Medicaid funding to ensure that their non-exempt staff are vaccinated against COVID-19.

In November 2021, the Secretary adopted a rule requiring Medicare and Medicaid participants to ensure that staff who do not have a medical or religious exemption or do not telework full-time are vaccinated. The Secretary did not provide advance notice or an opportunity to comment on the rule, finding “good cause” to forgo those usual requirements. After coalitions of States challenged the rule, two district court granted preliminary injunctions, which the Fifth and Eighth Circuits declined to stay. The Court concluded that the injunctions should be stayed. First, the Court determined that the Secretary had statutory authority to adopt the rule. The relevant statute permits the Secretary to impose conditions on the receipt of funds that “the Secretary finds necessary in the interest of the health and safety of individuals who are furnished services.”

E.g., 42 U.S.C. § 1395x(e)(9). The Secretary’s determination “that a COVID19 mandate w[ould] substantially reduce the likelihood that healthcare workers will contract the virus and transmit it to their patients” aligned with “the language of the statute” and how the Secretary had previously implemented it.

And although the rule is broader than previous “health-related participation conditions,” so too is the scale and scope of the challenge posed by the pandemic. Second, the Court concluded that the rule complied with the Administrative Procedure Act. The Secretary considered the relevant factors and “acted within a zone of reasonableness,” and also reasonably determined that the upcoming winter flu season was a reasonable basis for forgoing notice and comment. “The challenges posed by a global pandemic do not allow a 16 100

federal agency to exercise power that Congress has not conferred upon it. At the same time, such unprecedented circumstances provide no grounds for limiting the exercise of authorities the agency has long been recognized to have.

Because the latter principle governs in these cases,” the Court concluded, it granted the applications and stayed the district courts’ injunctions.

37. National Federation of Independent Business v. Department of Labor, No. 21A244 (6th Cir.; consolidated with Ohio v. Department of Labor, No. 21A247 (6th Cir.); argued Jan. 7, 2022). Applications seeking stays of OSHA’s COVID-19 Vaccination and Testing; Emergency Temporary Standard, 86 Fed. Reg. 61402.

Decided Jan. 13, 2022 (595 U.S. ). Applications granted; stay granted. Per Curiam (Gorsuch, J., joined by Thomas and Alito, J.J., concurring; Breyer, J., Sotomayor, J., and Kagan, J., dissenting). The Court held that applicants were likely to succeed on the merits of their claim that OSHA lacked authority to impose its vaccination mandate. In November 2021, OSHA announced an emergency rule requiring virtually all employers with at least 100 employees to enforce a vaccine mandate. The rule “requires that covered workers receive a COVID-19 vaccine” unless they “obtain a medical test each week at their own expense” and “wear a mask each workday.” Numerous States, businesses, trade groups, and nonprofit organizations filed petitions for review challenging the mandate. The Fifth Circuit initially entered a stay. But the petitions were then consolidated in the Sixth Circuit, which denied initial rehearing en banc by an equally divided vote and then dissolved the stay. The Court disagreed with the Sixth Circuit’s conclusion that a stay of the mandate was not justified. Because the mandate represents “a significant encroachment into the lives—and health— of a vast number of employees,” the Court reasoned, Congress must have “plainly authorize[d]” OSHA’s mandate. But the Occupation Safety and Health Act does not. It “empowers [OSHA] to set workplace safety standards, not broad public health measures,” and COVID-19 “is not an occupational hazard” in most workplaces because it “can and does spread at home, in schools, during sporting events, and everywhere else that people gather.” And unlike fire or sanitation regulations, a vaccine “cannot be undone at the end of the workday.”

The Court noted that OSHA would have authority to promulgate rules more targeted to workplace-specific risks of COVID-19, but that its “indiscriminate approach” did not account for the difference “between occupational risk and risk more generally.” Finally, the Court determined that “[t]he equities d[id] not justify withholding interim relief.” Applicants asserted that the mandate would “force them to incur billions of dollars in unrecoverable compliance costs” and “cause hundreds of thousands of employees to leave their jobs,” while OSHA contended that the mandate would “save over 6,500 lives and prevent thousands of hospitalizations.” But the Court held that it lacked the institutional competence “to weigh such tradeoffs.” Thus, the Court stayed the vaccine mandate pending disposition of the petitions by the Sixth Circuit and any subsequent petitions for certiorari.

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38. Ysleta del Sur Pueblo v. Texas, No. 20-493 (5th Cir., 955 F.3d 408; cert. granted Oct. 18, 2021; argued Feb. 22, 2022). Whether the Ysleta del Sur Pueblo and Alabama-Coushatta Indian Tribes of Texas Restoration Act provides the Ysleta del Sur Pueblo with sovereign authority to regulate non-prohibited gaming activities on its lands.

39. Denezpi v. United States, No. 20-7622 (10th Cir., 979 F.3d 777; cert. granted Oct. 28, 2021; argued Feb. 22, 2022). Whether the Court of Indian Offenses of Ute Mountain Ute Agency is a federal agency such that petitioner’s conviction in that court barred his subsequent prosecution in a United States District Court for a crime arising out of the same incident.

40. West Virginia v. Environmental Protection Agency, No. 20-1530 (D.C. Cir., 985 F.3d 914; cert. granted Oct. 29, 2021, consolidated with N. Am. Coal Corp. v. EPA, No. 20-1531 (D.C. Cir., 985 F.3d 914), North Dakota v. EPA, No. 20-1780 (D.C. Cir., 985 F.3d 914), and Westmoreland Mining Holdings LLC v. EPA, No. 20-1778 (D.C. Cir., 985 F.3d 914); argued Feb. 28, 2022).

Whether, in 42 U.S.C. § 7411(d), an ancillary provision of the Clean Air Act, Congress constitutionally authorized the Environmental Protection Agency to issue significant rules — including those capable of reshaping the nation’s electricity grids and unilaterally decarbonizing virtually any sector of the economy — without any limits on what the agency can require so long as it considers cost, nonair impacts and energy requirements.

41. Arizona v. City and County of San Francisco, No. 20-1775 (9th Cir., 992 F.3d 742; cert. granted Oct. 29, 2021; argued Feb. 23, 2022). Whether States with interests should be permitted to intervene to defend a rule when the United States ceases to defend.

42. Ruan v. United States, No. 20-1410 (11th Cir., 966 F.3d 1101; cert. granted Nov. 5, 2021, consolidated with Kahn v. United States, No. 21-5261 (10th Cir., 989 F.3d 806); argued Mar. 1, 2022). Whether a physician alleged to have prescribed controlled substances outside the usual course of professional practice may be convicted under 21 U.S.C. § 841(a)(1) without regard to whether, in good faith, he “reasonably believed” or “subjectively intended” that his prescriptions fall within that course of professional practice.

43. Marietta Memorial Hospital Employee Health Benefit Plan v. Davita, No. 201641 (6th Cir., 978 F.3d 326; cert. granted Nov. 5, 2021; argued Mar. 1, 2022). The Questions Presented are: (1) Whether a group health plan that provides uniform reimbursement of all dialysis treatments observe the prohibition provided by the Medicare Secondary Payer Act (“MSPA”) that group health plans may not “take into account” the fact that a plan participant with end stage renal disease is eligible for Medicare benefits.

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(2) Whether a plan that provides the same dialysis benefits to all plan participants, and reimburses dialysis providers uniformly regardless of whether the patient has end stage renal disease, observe the prohibition under the MSPA that a group health plan also may not “differentiate” between individuals with end stage renal disease and others “in the benefits it provides.” (3) Whether the MSPA is a coordination-of-benefits measure designed to protect Medicare, not an antidiscrimination law designed to protect certain providers from alleged disparate impact of uniform treatment.

44. Egbert v. Boule, No. 21-147 (9th Cir., 998 F.3d 370; cert. granted Nov. 5, 2021; argued Mar. 2, 2022). The Questions Presented are: (1) Whether a cause of action exists under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), for First Amendment retaliation claims. (2) Whether a cause of action exists under Bivens for claims against federal officers engaged in immigration-related functions for allegedly violating a plaintiff’s Fourth Amendment rights.

45. Morgan v. Sundance, Inc., No. 21-328 (8th Cir., 992 F.3d 711; cert. granted Nov. 15, 2021; argued Mar. 21, 2022). Whether the arbitration-specific requirement that the proponent of a contractual waiver defense prove prejudice violate this Court’s instruction in AT&T Mobility LLC v.

Concepcion, 563 U.S. 333, 339 (2011), that lower courts must “place arbitration agreements on an equal footing with other contracts.”

46. Berger v. North Carolina State Conference of the NAACP, No. 21-248 (4th Cir., 999 F.3d 915; cert. granted Nov. 24, 2021; argued Mar. 21, 2022). The Questions Presented are: (1) Whether a state agent authorized by state law to defend the state’s interest in litigation must overcome a presumption of adequate representation to intervene as of right in a case in which a state official is a defendant. (2) Whether a district court’s determination of adequate representation in ruling on a motion to intervene as of right is reviewed de novo or for abuse of discretion. (3) Whether petitioners are entitled to intervene as of right in this litigation.

47. Golan v. Saada, No. 20-1034 (2d Cir., 833 F. App’x 829; cert. granted Dec. 10, 2021; argued Mar. 22, 2022). Whether, upon finding that return to the country of habitual residence places a child at grave risk, a district court is required to consider ameliorative measures that would facilitate the return of the child notwithstanding the grave risk finding.

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48. Southwest Airlines Co. v. Saxon, No. 21-309 (7th Cir., 993 F.3d 492; cert. granted Dec. 10, 2021; argued Mar. 28, 2022). Whether workers who load or unload goods from vehicles that travel in interstate commerce, but do not physically transport such goods themselves, are interstate “transportation workers” exempt from the Federal Arbitration Act. 49. ZF Automotive US, Inc. v. Luxshare, Ltd., No. 21-401 (E.D. Mich., 2021 WL 3629899; cert. granted Dec. 10, 2021, consolidated with AlixPartners, LLC v.

Fund for Protection of Investor Rights in Foreign States, No. 21-518 (2d Cir., 5 F.4th 216); argued Mar. 23, 2022). Whether 28 U.S.C. § 1782(a), which permits litigants to invoke the authority of United States courts to render assistance in gathering evidence for use in “a foreign or international tribunal,” encompasses private commercial arbitral tribunals, as the U.S. Courts of Appeals for the 4th and 6th Circuits have held, or excludes such tribunals, as the U.S. Courts of Appeals for the 2nd, 5th, and 7th Circuits have held.

50. Torres v. Texas Department of Public Safety, No. 20-603 (Tex. App., 583 S.W.3d 221; cert. granted Dec. 15, 2021; argued Mar. 29, 2022). Whether Congress has the power to authorize suits against nonconsenting states pursuant to its constitutional war powers.

51. Viking River Cruises, Inc. v. Moriana, No. 20-1573 (Cal. Ct. App., 2020 WL 5584508; cert. granted Dec. 15, 2021; argued Mar. 30, 2022). Whether the Federal Arbitration Act requires enforcement of a bilateral arbitration agreement providing that an employee cannot raise representative claims, including under the California Private Attorneys General Act. 52. LeDure v. Union Pacific Railroad Company, No. 20-807 (7th Cir., 962 F.3d 907; cert. granted Dec. 15, 2021; argued Mar. 28, 2022). Whether a locomotive is in use on a railroad’s line and subject to the Locomotive Inspection Act and its safety regulations when its train makes a temporary stop in a railyard as part of its unitary journey in interstate commerce, or whether such use does not resume until the locomotive has left the yard as part of a fully assembled train.

53. United States v. Washington, No. 21-404 (9th Cir., 971 F.3d 856; cert. granted Jan. 10, 2022; argued Apr. 18, 2022). Whether a state workers’ compensation law that applies exclusively to federal contract workers who perform services at a specified federal facility is barred by principles of intergovernmental immunity, or is instead authorized by 40 U.S.C. § 3172(a), which permits the application of state workers’ compensation laws to federal facilities “in the same way and to the same extent as if the premises were under the exclusive jurisdiction of the State.”

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54. Siegel v. Fitzgerald, No. 21-441 (4th Cir., 996 F.3d 156; cert. granted Jan. 10, 2022; argued Apr. 18, 2022). Whether the Bankruptcy Judgeship Act violates the uniformity requirement of the Constitution’s bankruptcy clause by increasing quarterly fees solely in districts under the U.S. Trustee program, not in those under the Bankruptcy Administrator program.

55. Kemp v. United States, No. 21-5726 (11th Cir., 857 F. App’x 573; cert. granted Jan. 10, 2022; argued Apr. 19, 2022). Whether Federal Rule of Civil Procedure 60(b)(1) authorizes relief based on a district court’s error of law.

56. George v. McDonough, No. 21-234 (Fed. Cir., 991 F.3d 1227; cert. granted Jan. 14, 2022; argued Apr. 19, 2022). Whether, when the Department of Veterans Affairs denies a veteran’s claim for benefits in reliance on an agency interpretation that is later deemed invalid under the plain text of the statutory provisions in effect at the time of the denial, that is the kind of “clear and unmistakable error” that the veteran may invoke to challenge the VA’s decision.

57. Kennedy v. Bremerton School District, No. 21-418 (9th Cir., 991 F.3d 1004, 869 F.3d 813; cert. granted Jan. 14, 2022; Apr. 25, 2022). The Questions Presented are: (1) Whether a public-school employee who says a brief, quiet prayer by himself while at school and visible to students is engaged in government speech that lacks any First Amendment protection. (2) Whether, assuming that such religious expression is private and protected by the free speech and free exercise clauses, the establishment clause nevertheless compels public schools to prohibit it.

58. Vega v. Tekoh, No. 21-499 (9th Cir., 985 F.3d 713; cert. granted Jan. 14, 2022; Apr. 20, 2022). Whether a plaintiff may state a claim for relief against a law enforcement officer under 42 U.S.C. § 1983 based simply on an officer’s failure to provide the warnings prescribed in Miranda v.

Arizona.

59. Nance v. Ward, 21-439 (11th Cir., 981 F.3d 1201; cert. granted Jan. 14, 2022; Apr. 25, 2022). The Questions Presented are: (1) Whether an inmate’s as-applied method-of-execution challenge must be raised in a habeas petition instead of through a 42 U.S.C. § 1983 action if the inmate pleads an alternative method of execution not currently authorized by state law. (2) Whether, if such a challenge must be raised in habeas, it constitutes a successive petition when the challenge would not have been ripe at the time of the inmate’s first habeas petition.

60. Shoop v. Twyford, No. 21-511 (6th Cir., 11 F.4th 518; cert. granted Jan. 14, 2022; argued Apr. 26, 2022). The Questions Presented are: (1) Whether 21 105

federal courts may use the All Writs Act to order the transportation of state prisoners for reasons not enumerated in 28 U.S.C. § 2241(c). (2) Whether, before a court grants an order allowing a habeas petitioner to develop new evidence, it must determine whether the evidence could aid the petitioner in proving his entitlement to habeas relief, and whether the evidence may permissibly be considered by a habeas court.

61. Oklahoma v. Castro-Huerta, No. 21-429 (Okla. Crim. App.; cert. granted Jan. 21, 2022; argued Apr. 27, 2022). Whether a state has authority to prosecute non-Indians who commit crimes against Indians in Indian country.

62. Biden v. Texas, No. 21-954 (5th Cir. 20 F.4th 928; cert. granted Feb. 18, 2022; argued Apr. 26, 2022). The Questions Presented are: (1) Whether 8 U.S.C. § 1225 requires the Department of Homeland Security to continue implementing the Migrant Protection Protocols, a former policy under which certain noncitizens arriving at the southwest border were returned to Mexico during their immigration proceedings. (2) Whether the Fifth Circuit erred by concluding that the secretary of homeland security’s new decision terminating the Migrant Protection Protocols had no legal effect.

Cases Awaiting An Argument Date 63. Pivotal Software, Inc. v. Tran, No. 20-1541 (Cal. Super. Ct.; cert. granted July 2, 2021; argument scheduled Nov. 9, 2021; argument date vacated Sept. 2, 2021). Whether the Private Securities Litigation Reform Act’s discovery-stay provision applies to a private action under the Securities Act of 1933 in state or federal court, or solely to a private action in federal court.

October Term 2022 1. Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, No. 20-1199 (1st Cir., 980 F.3d 157; cert. granted Jan. 24, 2022; consolidated with Students for Fair Admissions, Inc. v. University of North Carolina, No. 21-707 (4th Cir.)). The Questions Presented are: (1) Whether the Court should overrule Grutter v. Bollinger, 539 U.S. 306 (2003), and hold that institutions of higher education cannot use race as a factor in admissions. (2) Whether public universities violate Title VI of the Civil 22 106

Rights Act by penalizing Asian-American applicants, engaging in racial balancing, overemphasizing race, rejecting workable race-neutral alternatives.

2. Axon Enterprise, Inc. v. FTC, No. 21-86 (9th Cir., 986 F.3d 1173; cert. granted Jan. 24, 2022). Whether Congress impliedly stripped federal district courts of jurisdiction over constitutional challenges to the Federal Trade Commission’s structure, procedures, and existence by granting the courts of appeals jurisdiction to “affirm, enforce, modify, or set aside” the Commission’s cease-and-desist orders.

3. Sackett v. EPA, No. 21-454 (9th Cir., 8 F.4th 1075; cert. granted Jan. 24, 2022). Whether the Ninth Circuit set forth the proper test for determining whether wetlands are “waters of the United States” under the Clean Water Act, 33 U.S.C. § 1362(7).

4. Delaware v. Pennsylvania, No. 22O145 (Original Jurisdiction; exceptions to the Report of the Special Master filed Nov. 18, 2021; exceptions opposed Dec. 20, 2021; sur-reply in support of exceptions filed Jan. 19, 2022; case set for oral argument in due course Feb. 22, 2022; consolidated with Arkansas v. Delaware, No. 22O146). The Questions Presented are: (1) Whether MoneyGram official Checks are “a money order, traveler’s check, or other similar written instrument (other than a third party bank check) on which a banking or financial organization or a business association is directly liable,” pursuant to 12 U.S.C. § 2503. (2) Whether the court should command Pennsylvania, Wisconsin, and Arkansas not to assert any claim over abandoned and unclaimed property related to MoneyGram Official Checks. (3) Whether all future sums payable on abandoned MoneyGram Official Checks should be remitted to Delaware.

5. Merrill v. Milligan, No. 21-1086 (N.D. Ala.; probable jurisdiction noted Feb. 7, 2022; consolidated with Merrill v. Caster, No. 21-1087 (11th Cir.)).

Whether the State of Alabama’s 2021 redistricting plan for its seven seats in the United States House of Representatives violated section 2 of the Voting Rights Act, 52 U.S.C. § 10301 6. Arellano v. McDonough, No. 21-432 (Fed. Cir., 1 F.4th 1059; cert. granted Feb. 22, 2022). The Questions Presented are: (1) Whether the rebuttable presumption of equitable tolling from Irwin v. Department of Veterans Affairs applies to the one-year statutory deadline in 38 U.S.C. § 5110(b)(1) for seeking retroactive disability benefits, and, if so, whether the government has rebutted that presumption. (2) Whether, if 38 U.S.C. § 5110(b)(1) is amenable to equitable tolling, this case should be remanded so the agency can consider the particular facts and circumstances in the first instance.

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7. 303 Creative LLC v. Elenis, No. 21-476 (10th Cir., 6 F.4th 1160; cert. granted Feb. 22, 2022). Whether applying a public-accommodation law to compel an artist to speak or stay silent violates the Free Speech Clause of the First Amendment.

8. Haaland v. Brackeen, No. 21-376, consolidated with Cherokee Nation v.

Brackeen, No. 21-377, Texas v. Haaland, No. 21-378, Brackeen v. Haaland, No. 21-380 (5th Cir., 994 F.d 249; cert. granted Feb. 28, 2022). The Questions Presented are: (1) Whether the Indian Child Welfare Act of 1978’s (“ICWA”) placement preferences—which disfavor non-Indian adoptive families in child-placement proceedings involving an “Indian child”—discriminate on the basis of race in violation of the U.S. Constitution. (2) Whether ICWA’s placement preferences exceed Congress’s Article I authority by invading the arena of child placement and otherwise commandeering state courts and state agencies to carry out a federal child-placement program.

9. National Pork Producers Council v. Ross, No. 21-468 (9th Cir., 6 F.4th 1021; cert. granted Mar. 28, 2022). The Questions Presented are: (1) Whether allegations that a state law has dramatic economic effects largely outside of the state and requires pervasive changes to an integrated nationwide industry state a violation of the dormant commerce clause. (2) Whether such allegations, concerning a law that is based solely on preferences regarding out-of-state housing of farm animals, state a claim under Pike v.

Bruce Church, Inc. 10. Cruz v. Arizona, No. 21-846 (Ariz., 487 P.3d 991; cert. granted Mar. 28, 2022). Whether the Arizona Supreme Court’s holding that Arizona Rule of Criminal Procedure 32.1(g) precluded post-conviction relief is an adequate and independent state-law ground for the judgment.

11. Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, No. 21-869 (2d Cir., 11 F.4th 26; cert. granted Mar. 28, 2022). Whether a work of art is “transformative” when it conveys a different meaning or message from its source material, or whether a court is forbidden from considering the meaning of the accused work where it “recognizably deriv[es] from” its source material.

12. Reed v. Goertz, No. 21-442 (5th Cir., 995 F.3d 425; cert. granted Apr. 25, 2022). Whether the statute of limitations for a 42 U.S.C. § 1983 claim seeking DNA testing of crime-scene evidence begins to run at the end of state-court litigation denying DNA testing, including any appeals, or whether it begins to run at the moment the state trial court denies DNA testing, despite any subsequent appeal.

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13. Mallory v. Norfolk Southern Railway Co., No. 21-1168 (Pa., 266 A.3d 542; cert. granted Apr. 25, 2022). Whether the due process clause of the 14th Amendment prohibits a state from requiring a corporation to consent to personal jurisdiction to do business in the state.

Cases Decided Without Oral Argument 1. Rivas-Villegas v. Cortesluna, No. 20-1539 (9th Cir., 979 F.3d 645; Reversed Oct. 18, 2021). Per Curiam. The Court held that the Ninth Circuit erred in denying qualified immunity to petitioner on respondent’s excessive force claim.

Petitioner briefly placed his knee on respondent’s back while removing his knife and handcuffing him after responding to a domestic violence report. In denying qualified immunity, the Court reasoned, the Ninth Circuit relied on a materially distinguishable precedent, LaLonde v. County of Riverside, 204 F.3d 947 (9th Cir. 2002). There, the officer responded to a mere noise complaint, the suspect was not armed, and the officer caused significant injury when he deliberately dug his knee into the suspect’s back. Because those facts were not sufficiently similar to put petitioner on notice that his conduct qualified as excessive force— even under Ninth Circuit precedent—the Court reversed.

2. City of Tahlequah v. Bond, No. 20-1688 (10th Cir., 981 F.3d 808; Reversed Oct. 18, 2021). Per Curiam. The Court held that the Tenth Circuit erred in denying qualified immunity to defendant police officers on respondent’s excessive force claim. Defendants shot and killed Dominic Rollice after he refused to drop a hammer and instead appeared poised to throw it at them. The Tenth Circuit erred, the Court concluded, by relying on a series of decisions, none of which came “close to establishing that the officers’ conduct was unlawful.” The Court thus reversed the denial of qualified immunity.

3. Becerra v. Gresham, No. 20-37 (D.C. Cir., 950 F.3d 93; cert. granted Dec. 4, 2020, consolidated with Arkansas v. Greshman, No. 20-38 (D.C. Cir., 950 F.3d 93); argument scheduled Mar. 29, 2021; argument date vacated Mar. 11, 2021; held in abeyance Apr. 5, 2021; judgment vacated as moot Apr. 18, 2022).

4. Wisconsin Legislature v. Wisconsin Elections Comm’n, No. 21A471 (Wisc., 971 N.W.2d 402; Reversed Mar. 23, 2022). Per Curiam (Sotomayor, J., joined

by Kagan, J., dissenting). The Court held that the Wisconsin Supreme Court committed legal error in selecting the Governor’s proposed state legislative maps. Because that map added a new majority-black district, the Wisconsin Supreme Court concluded that it must satisfy strict-scrutiny under the Equal Protection Clause. But it erred in applying strict scrutiny. The Governor provided almost no evidence in support of a new majority-black district other than “the sort of uncritical majority-minority district maximization that” the

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Supreme Court had “expressly rejected.” And the Wisconsin Supreme Court concluded only that a new majority-black district might be required under the Voting Rights Act, without decided whether one was in fact required. Nor did the Wisconsin Supreme Court carefully evaluate the evidence “at the district level,” instead relying on impermissible “generalizations.” The Court thus reversed and remanded.

Case Dismissed As Improvidently Granted 1. United States v. Texas, No. 21-588 (5th Cir.; cert. before judgment granted Oct. 22, 2021; argued Nov. 1, 2021; dismissed as improvidently granted Dec. 10, 2021 (Sotomayor, J., dissenting). Whether the United States may bring suit in federal court and obtain injunctive or declaratory relief against the State, state court judges, state court clerks, other state officials, or all private parties to prohibit S.B. 8 from being enforced.

Pending Cases Calling For The Views Of The Solicitor General 1. American Axle & Manufacturing Inc. v. Neapco Holdings LLC, No. 20-891 (Fed. Cir., 966 F.3d 1294; CVSG May 3, 2021). The Questions Presented are: (1) What standard determines whether a patent claim is “directed to” a patent-ineligible concept under step 1 of the Supreme Court’s two-step framework for determining whether an invention is eligible for patenting under 35 U.S.C. § 101. (2) Whether patent eligibility (at each step of the Supreme Court’s two-step framework) is a question of law for the court based on the scope of the claims or a question of fact for the jury based on the state of art at the time of the patent.

2. C.H. Robinson Worldwide, Inc. v. Miller, No. 20-1425 (9th Cir., 976 F.3d 1016; CVSG Oct. 4, 2021). Whether a common-law negligence claim against a freight broker is preempted because it does not constitute an exercise of the “safety regulatory authority of a State with respect to motor vehicles” within the meaning of the Federal Aviation Administration Authorization Act’s safety exception.

3. Virgin America, Inc. v. Bernstein, No. 21-260 (9th Cir., 3 F.4th 1127; CVSG Nov. 15, 2021). Whether the Airline Deregulation Act preempts generally applicable state laws that have a significant impact on airline prices, routes, and services, or whether it preempts such laws only if they bind an airline to a particular price, route, or service.

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4. California Trucking Ass’n v. Bonta, No. 21-194 (9th Cir., 996 F.3d 664; CVSG Nov. 15, 2021). Whether the Federal Aviation Administration Authorization Act preempts the application to motor carriers of a state worker-classification law that effectively precludes motor carriers from using independent owner-operators to provide trucking services.

5. Monsanto Co. v. Hardeman, No. 21-241 (9th Cir., 997 F.3d 941; CVSG Dec. 13, 2021). The Questions Presented are: (1) Whether the Federal Insecticide, Fungicide, and Rodenticide Act preempts a state-law failure-to-warn claim where the warning cannot be added to a product without EPA approval and EPA has repeatedly concluded that the warning is not appropriate. (2) Whether the Ninth Circuit’s standard for admitting expert testimony is inconsistent with the Supreme Court’s precedent and Federal Rule of Evidence 702.

6. Weiss v. National Westminster Bank, PLC, No. 21-381 (2d Cir., 993 F.3d 144; CVSG Dec. 13, 2021). Whether a person who knowingly transfers substantial funds to a designated foreign terrorist organization aids and abets that organization’s terrorist acts for purposes of civil liability under the Justice Against Sponsors of Terrorism Act. 7. Doe 1 v. Express Scripts, Inc., No. 21-471 (2d Cir., 837 F. App’x 44; CVSG Dec. 13, 2021). The Questions Presented are: (1) Whether an administrator hired by a plan under the Employee Retirement Income Security Act of 1974 acts as a fiduciary when it controls prices paid by the plan or its participants, or whether control over pricing is exempt from the definition of “fiduciary” (the exception from DeLuca v. Blue Cross Blue Shield of Michigan) if the administrator is in the ‘business” of setting prices for its clients. (2) Whether, if the DeLuca exception is, in fact, a proper gloss on ERISA, it exempts from fiduciary status a third-party benefit manager that exercises ongoing discretion over the actual prices charged to the plans pursuant to a contract with the plan administrator.

8. Olaf Sööt Design, LLC v. Daktronics, No. 21-438 (Fed. Cir., 839 F. App’x 505; CVSG Jan. 10, 2022). Whether the Seventh Amendment allows the U.S. Court of Appeals for the Federal Circuit to reverse a jury verdict based on a sua sponte new claim construction of a term the district court concluded was not a term of art and construed to have its plain and ordinary meaning; where the Federal Circuit’s sua sponte claim construction essentially recasts a specific infringement factual question, previously decided by the jury, as a claim construction issue, to be decided de novo by the appellate court.

9. Johnson v. Bethany Hospice and Palliative Care LLC, No. 21-462 (11th Cir., 853 F. App’x 496; CVSG Jan. 18, 2022). Whether Federal Rule of Civil 27 111

Procedure 9(b) requires plaintiffs in False Claims Act cases who plead a fraudulent scheme with particularity to also plead specific details of false claims.

10. Musta v. Mendota Heights Dental Center, No. 21-676 (Minn., 965 N.W.2d 312; CVSG Feb. 22, 2022). Whether the Controlled Substances Act preempts an order under a state workers’ compensation law requiring an employer to reimburse an injured employee for the cost of medical marijuana used to treat a work-related injury.

11. Apple Inc. v. Qualcomm Inc., No. 21-746 (Fed. Cir., 992 F.3d 1378; CVSG Feb. 22, 2022). Whether a licensee has Article III standing to challenge the validity of a patent covered by a license agreement that covers multiple patents.

12. Bierbach v. Digger’s Polaris, No. 21-998 (Minn., 965 N.W.2d 281; CVSG Feb. 22, 2022). Whether the Controlled Substances Act preempts an order under a state workers’ compensation law requiring an employer to reimburse an injured employee for the cost of medical marijuana used to treat a work-related injury.

13. Kinney v. HSBC Bank USA, N.A., No. 21-599 (10th Cir., 5 F.4th 1136; CVSG Mar. 7, 2022). Whether a bankruptcy court may deny a motion to dismiss and/or grant a completion discharge when there remains, at the end of the plan term, a shortfall that the debtor is willing and able to cure within a reasonable time, or whether such a payment is not a payment “under the plan” but an impermissible modification of the plan.

14. Amgen Inc. v. Sanofi, No. 21-757 (Fed. Cir., 987 F.3d 1080; CVSG Apr. 18, 2022). The Questions Presented are: (1) Whether enablement under Section 112 of the Patent Act is a question of fact to be determined by the jury or a question of law. (2) Whether enablement is governed by the statutory requirement that the specification teach those skilled in the art to “make and use” the claimed invention, or whether it must instead enable those skilled in the art “to reach the full scope of claimed embodiments” without undue experimentation.

15. Republic of Turkey v. Usoyan, No. 21-1013 (D.C. Cir., 6 F.4th 31; CVSG Apr. 18, 2022). The Questions Presented are: (1) Whether the Discretionary Function Rule within the Foreign Sovereign Immunities Act, 28 U.S.C. § 1605(a)(5)(A) applies to claims based upon a presidential security detail’s use of force during an official state visit to the United States, when they are acting within the scope of their employment. (2) Whether the plaintiff or the defendant bears the burden of proving that the Discretionary Function Rule does not apply.

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CVSG Cases In Which The Solicitor General Supported Certiorari 1. Hughes v. Northwestern University, No. 19-1401 (7th Cir., 953 F.3d 980; CVSG Oct. 5, 2020; cert. supported May 25, 2021; cert. granted July 2, 2021). Whether allegations that a defined-contribution retirement plan paid or charged its participants fees that substantially exceeded fees for alternative available investment products or services are sufficient to state a claim against plan fiduciaries for breach of the duty of prudence under ERISA, 29 U.S.C. § 1104(a)(1)(B).

2. Cummings v. Premier Rehab Keller, P.L.L.C., No. 20-219 (5th Cir., 948 F.3d 673; CVSG Nov. 2, 2020; cert. supported May 25, 2021; cert. granted July 2, 2021). Whether the compensatory damages available under Title VI of the Civil Rights Act of 1964 and the statutes that incorporate its remedies for victims of discrimination, such as the Rehabilitation Act and the ACA, include compensation for emotional distress.

3. Ysleta del Sur Pueblo v. Texas, No. 20-493 (5th Cir., 918 F.3d 440; CVSG Feb. 22, 2021; cert. supported Aug. 25, 2021; cert. granted Oct. 18, 2021).

Whether the Ysleta del Sur Pueblo and Alabama-Coushatta Indian Tribes of Texas Restoration Act provides the Ysleta del Sur Pueblo with sovereign authority to regulate non-prohibited gaming activities on its lands (including bingo), as set forth in the plain language of Section 107(b), the act’s legislative history and the Supreme Court’s holding in California v.

Cabazon Band of Mission Indians, or whether the U.S. Court of Appeals for the 5th Circuit’s decision affirming Ysleta del Sur Pueblo v. Texas (Ysleta I) correctly subjects the pueblo to all Texas gaming regulations.

4. Golan v. Saada, No. 20-1034 (2d Cir., 833 F. App’x 829; CVSG Apr. 5, 2021; cert. supported Oct. 27, 2021; cert. granted Dec. 10, 2021). Whether, upon finding that return to the country of habitual residence places a child at grave risk, a district court is required to consider ameliorative measures that would facilitate the return of the child notwithstanding the grave risk finding.

5. LeDure v. Union Pacific Railroad Co., No. 20-807 (7th Cir., 962 F.3d 907; CVSG May 17, 2021; cert. supported Nov. 9, 2021; cert. granted Dec. 15, 2021). The Questions Presented are: (1) Whether a locomotive is “in use” on a railroad’s line and subject to the Locomotive Inspection Act when its train makes a temporary stop in a railyard as part of its unitary journey in interstate commerce, or whether such use does not resume until the locomotive has left the yard as part of a fully assembled train. (2) Whether the Federal Employers’ Liability Act allows a jury determination on the 29 113

issue of foreseeability of harm from oil on a locomotive passageway when the railroad failed to conduct federally mandated daily safety inspections intended to discover and cure such hazards in the days before the injury.

CVSG Cases In Which The Solicitor General Opposed Certiorari 1. Volkswagen Group of America Inc. v. Environmental Protection Commission of Hillsborough County, Florida, No. 20-994 (9th Cir., 959 F.3d 1201; CVSG Apr. 26, 2021; cert. opposed Sept. 27, 2021; cert. denied Nov. 15, 2021).

Whether the Clean Air Act preempts state and local governments from regulating manufacturers’ post-sale, nationwide updates to vehicle emission systems.

2.

Independent School District No. 283 v. E.M.D.H. ex rel. L.H. and S.D., No. 20-905 (8th Cir., 960 F.3d 1073; CVSG May 3, 2021; cert. opposed Aug. 23, 2021; cert. denied Oct. 4, 2021). Whether the continuing-violation doctrine applies to the two-year statutory time limit to file an administrative complaint under the Individuals with Disabilities Education Act.

3. Waterfront Commission of New York Harbor v. Murphy, No. 20-772 (3d Cir., 961 F.3d 234; CVSG Apr. 5, 2021; cert. opposed Oct. 19, 2021; cert. denied Nov. 22, 2021). Whether, under the doctrine of Ex parte Young, an interstate compact agency may sue a state official to prevent that official from implementing a state law that would be preempted under a congressionally approved interstate compact.

4. Torres v. Texas Dep’t of Public Safety, No. 20-603 (Tex. App., 583 S.W.3d 221; CVSG Mar. 1, 2021; cert. opposed Nov. 9, 2021; cert. granted Dec. 15, 2021). Whether Congress has the power to authorize suits against nonconsenting states pursuant to its constitutional war powers.

5. Gannett Co. v. Quatrone, No. 20-609 (4th Cir., 970 F.3d 465; CVSG Apr. 19, 2021; cert. opposed Nov. 9, 2021; cert. denied Dec. 13, 2021). Whether a plaintiff adequately pleads breach of the duties of prudence and diversification solely by alleging that fiduciaries permitted participants in a defined contribution plan to choose, from an adequately diversified menu of investment options, to invest in an undiversified single-stock fund.

6. Marin Housing Authority v. Reilly, No. 20-1046 (Cal., 472 P.3d 472; CVSG June 21, 2021; cert. opposed Nov. 9, 2021; cert. denied Dec. 13, 2021).

Whether a public housing authority, in calculating a family’s annual income, is required by 24 C.F.R. § 5.609(c)(16) to exclude Medicaid-funded

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payments made to a family by a State agency to allow the Section 8 tenant to provide personal caregiving services in order to keep a developmentally disabled family member at home.

7. Students for Fair Admissions Inc. v. President & Fellows of Harvard College, No. 20-1199 (1st Cir., 980 F.3d 157; CVSG June 14, 2021; cert. opposed Dec. 8, 2021; cert. granted Jan. 24, 2022). The Questions Presented are: (1) Whether the Supreme Court should overrule Grutter v. Bollinger and hold that institutions of higher education cannot use race as a factor in admissions. (2) Whether Harvard College is violating Title VI of the Civil Rights Act by penalizing Asian-American applicants, engaging in racial balancing, overemphasizing race, and rejecting workable race-neutral alternatives.

8. Robertson v. Intratek Computer, Inc., No. 20-1229 (5th Cir., 976 F.3d 575; CVSG Oct. 4, 2021; cert. opposed Apr. 11, 2022). The Questions Presented are: (1) Whether mandatory compelled arbitration of claims under 41 U.S.C. § 4712 disrupts the administrative scheme set up by Congress to remedy and enforce violations of 41 U.S.C. § 4712. (2) Whether Congress intended to prohibit enforcement of mandatory employment arbitration agreements in 41 U.S.C. § 4712 when it (a) expressly provided for a federal trial in the remedy and enforcement section and (b) expressly prohibited waiver of any rights and remedies provided as a condition of employment.

9. PersonalWeb Technologies, LLC v. Patreon, Inc., No. 20-1394 (Fed. Cir., 961 F.3d 1365; CVSG Oct. 4, 2021; cert. opposed Apr. 8, 2022). The Questions Presented are: (1) Whether the U.S. Court of Appeals for the Federal Circuit correctly interpreted Kessler v. Eldred to create a freestanding preclusion doctrine that may apply even when claim and issue preclusion do not. (2) Whether the Federal Circuit properly extended its Kessler doctrine to cases in which the prior judgment was a voluntary dismissal.

10. Epic Systems Corp. v. Tata Consultancy Services Ltd., No. 20-1426 (7th Cir., 980 F.3d 1117; CVSG Oct. 12, 2021; cert. opposed Feb. 15, 2022; cert. denied Mar. 21, 2022). Whether a state statute that expressly caps punitive damages at two times compensatory damages satisfies the notice requirement of the due process clause such that a punitive damages award that complies with the statute is constitutionally sound under the due process clause.

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OADC Oregon Association of Defense Counsel

2022 OADC ANNUAL CONVENTION CLE MATERIALS Appellate Update: Keeping your Practice Current Honorable Erin Lagesen, Oregon Court of Appeals Judge Alycia Sykora, Deschutes County Circuit Court Matt Kalmanson, Hart Wagner PC June 18, 2022 9:15 – 10:15 am Sunriver Resort 116

Honorable Erin Lagesen, Oregon Court of Appeals The Honorable Erin C. Lagesen was appointed by Governor Kitzhaber to the Oregon Court of Appeals in 2012. On January 1, 2022, she became the court’s Chief Judge. Chief Judge Lagesen was born and raised in Portland, and obtained her JD at Willamette University College of Law. Before joining the Court of Appeals, she practiced law in the appellate division of the Oregon Department of Justice, handling a wide range of civil, criminal and administrative appeals in the Oregon Court of Appeals, the Oregon Supreme Court, the United States Court of Appeals for the Ninth Circuit, and the United States Supreme Court.

Judge Alycia Sykora, Deschutes County Circuit Court Judge Sykora was appointed to the Deschutes County Circuit Court in October 2019. She graduated from the University of Oregon School of Law in 1997. After graduation, she clerked for the Oregon Supreme Court and served as an Honors Attorney for the Oregon Department of Justice. Judge Sykora practiced as a civil litigator in Bend before her appointment to the bench.

Matt Kalmanson, Hart Wagner PC Matt Kalmanson is an experienced litigation and appellate attorney. He regularly serves as lead appellate counsel in cases before state and federal appellate courts in the Pacific Northwest, and has a track record of success.

Matt is also an accomplished litigator and skilled negotiator, with particular experience litigating matters involving complex business transactions, securities, accounting and finance; cases involving statutory, constitutional and regulatory schemes; actions involving professional duties; class actions; shareholder disputes; derivative actions; trust and partnership disputes; and many others.

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OADC CIVIL PRACTICE UPDATE

June 18, 2022 Chief Judge Erin Lagesen, Oregon Court of Appeals Matt Kalmanson, Co-Managing Partner, Hart Wagner, LLP Judge Alycia Sykora, Deschutes County Circuit Court Civil Practice and Procedure: General Privileges City of Portland v Bartlett, 369 Or 606 (2022) Defendant asked the District Attorney to release certain old, attorney-client-privileged, public records that were exempt from disclosure when prepared (three city attorney opinions and one legal memo from over 25 years ago). The DA ordered release of the records. The city brought this declaratory judgment action, contending that the public records law did not require disclosure. The Court of Appeals reversed en banc. The Oregon Supreme Court affirmed the Court of Appeals’ decision and ordered the trial court to enter a declaratory judgment for defendant seeking disclosure. Under ORS 192.390, records exempt from disclosure due to the attorney-client privilege in OEC 503 must be disclosed if they are over 25 years old. “The question is not whether the records are ‘exempt’ under OEC 503, but whether they are exempt from disclosure under the public records law.” The Court footnoted: “given the potential scope of the conclusion we reach here, the legislature may wish to revisit aspects of the public records law or confidentiality statutes for particular records to ensure that the statutes align with its policy choices and that uncertainty regarding public agency obligations and important privacy and confidentiality interests is minimized.”

Hofer v OHSU, 319 Or App 603 (2022) Plaintiff sued OHSU alleging defamation and defamation per se against two of her doctors. She claimed that the doctors typed false statements about her into her medical record.

OHSU is part of the state government. “Oregon recognizes the defenses of qualified privilege and absolute privilege to defamation actions.” This case involves only absolute privilege, an affirmative defense. “Absolute privilege generally applies in governmental settings to statements made by public officials in the course of their public duties.” Absolute immunity is a complete bar to liability for defamation. Absolute immunity in Oregon has been extended: to state legislators in their legislative duties; to judges, jurors, attorneys, and witnesses in pleadings, open court, in litigation, and in judicial proceedings; to persons making statements to administrative bodies; to “inferior” and superior executive-branch officers including police officers in their official duties; to DHS supervisors; and to a public-school theater technician making statements about a piano tuner being intoxicated at school. The trial court granted OHSU’s motions for summary judgment including its defense that plaintiff’s defamation claims are barred by absolute privilege. To overcome summary judgment on the absolute privilege defense, plaintiff “needed to” but did not introduce evidence that the physicians entered their medical notes outside the course of their official duties. One note contained an incorrect aspect but that does not raise an issue of fact about whether the physicians were engaging in their official duties when making the statements that are their medical notes. Held: Affirmed. The trial court did not err in granting summary judgment to OHSU. Chaimov v Oregon Dep’t of Administrative Services, 314 Or App 253 (2021), review allowed, 369 Or 209 (2022) Plaintiff-attorney filed a declaratory judgment action seeking an order requiring production of forms by state agencies requesting services to draft legislation to the Office of Legislative Counsel. The circuit court granted plaintiff’s motion for summary judgment, denied the defense cross-motions, and entered judgment declaring that the forms were not subject to the lawyer-client privilege and directed DAS to disclose the documents. On the state’s appeal, the court of appeals reversed. The parties agree that: the person who is legislative counsel is a “lawyer” under OEC 503, state agency requests forms sought legal services, legislative counsel’s bill-drafting services are legal services, DAS sent the request forms to legislative counsel for those legal services, DAS stated Page 1 of 32

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it intended to keep the forms confidential, and legislative counsel kept the forms confidential. Plaintiff contended that because DAS initially intended to disclose the request forms after the bills were drafted and submitted but the court of appeals “rejected” that waiver argument. “An agency’s discussion of the substance of a bill concept with stakeholders does not prevent the agency from keeping its bill-drafting requests to [legislative counsel] confidential” and an initially expressed intent to keep forms only temporarily confidential did not waiver the privilege. The Oregon Supreme Court allowed review.

Carey v Siepmann, 316 Or App 470 (2021) (qualified privilege in employment, absolute privilege in quasijudicial proceedings) Walker v Shangri-La Corp, 2022 WL 263493 (D Or 2022) (attorney-client) Veracities PBC v Strand, 2022 WL 1439039 (D Or 2022) Plaintiff sought discovery from defendants, who are husband and wife and co-business owners of a defendant-business. Defendants withheld over 10,000 responsive documents on a theory that the federal common law “marital communications” privilege allows them to withhold. Plaintiff moved to compel a privilege log from defendants, contending that plaintiff seeks only business documents that are “ordinary business communications” not within the marital communications privilege. The court concluded that ordinary business communications are not subject to marital privilege under federal common law. The court granted plaintiff’s motion to require that defendants produce a privilege log within two weeks.

Service Elli Hu Farms v Farie, 2021 WL 5984991 (D Or 2021) Macon v Proud Ground Organization, 2021 WL 3354157 (D Or 2021) ORCP 7 D(1) permits service “in any manner reasonably calculated under all the circumstances, to apprise the defendant of the existence and pendency of the action and to afford a reasonable opportunity to appear and defend.” Service “on a third person may be adequate under ORCP 7 D(1) if the process server has reason to believe that the person with whom the summons and complaint have been left has regular, frequent and predictable contact with the defendant.” For example, service on a person’s bookkeeper has been adequate and service with spouses has been deemed adequate, if the “regular, frequent and predictable contact” element is met. Here, to serve an individual, plaintiff had a sheriff go to “the Proud Ground office” to serve the individual, but that person is not employed by Proud Ground, does not work there, and no one is authorized to accept service. That is not reasonably calculated to apprise the individual of the action against him. Service is ineffective.

Timing Moody v Dep’t of Human Services, 318 Or App 16 (2022) Petitioner filed a petition for judicial review of a final order 62 days after defendant DHS mailed a final order to him. Petitioner had to file the petition within 60 days of the mailing date, per ORS 183.484. He invoked ORCP 10 B to provide three extra days. ORCP 10 B provides for three extra days “to do some act within a prescribed period after the service”. ORCP 1 A explains that the ORCP supply the procedures for circuit court proceedings except when a statute or rule provides a different procedure. ORS 183.484 specifies a different procedure than ORCP 10 B – exactly 60 days without the extra three days. ORCP 10 B does not supply a different timeline.

Jefferson v Federal Express Corporation, 2022 WL 252665 (D Or) Federal district court rule LR 54-1(a) requires a prevailing party to file a Bill of Costs no later than 14 days after entry of judgment. Defendant here filed it 16 days after entry of judgment. The court concludes that it would be inappropriate to use its discretion to allow the late filing. Defendant’s untimely-filed bill of costs was denied.

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Marshall v PriceWaterhouseCoopers, LLP, 316 Or App 416 (2021). Plaintiffs brought a legal malpractice claim, alleging that their law firm negligently advised them in connection with a stock-sale transaction, subsequent IRS investigation and related litigation, resulting in economic losses, including liability for back taxes, penalties and attorney fees. The trial court dismissed the claim as barred by the ORS 12.115(1) statute of repose applicable to "action[s] for negligent injury to person or property." The court of appeals reversed, concluding that a negligence claim for financial losses does not constitute an assertion of an "injury to person to property" within the meaning of the statute. A claim for economic losses only does not qualify "because it does not implicate physical damage to existing tangible property or relate to the ownership and disposition of property." Id. at 431.

Standing Oregon Bankers Assoc. v State of Oregon, 2022 WL 488071 (D Or 2022) HB 4204, enacted by the Oregon Legislature, makes it unlawful for a lender to pursue collection actions and foreclosure proceedings against borrowers adversely affected by COVID during emergency periods. HB 4204 was repealed on April 1, 2021.

Plaintiff banks filed this suit for declaratory judgment and injunction challenging the constitutionality of two parts of HB 4204: one required lenders to provide notice to borrowers of their rights by a certain date and another temporarily limiting lenders from defaulting on borrowers or imposing penalties for late payments.

Those challenges are under the Supremacy Clause (preemption) and the Contracts Clause and the Takings Clause. Defendants moved to dismiss under FRCP 12(b)(1) (no standing) and immunity for the state under the Eleventh Amendment. The court granted the motion to dismiss due to lack of standing, with leave to amend within 30 days. Plaintiffs do not adequately plead that they suffered injury or an injury attributable to defendants. Plaintiffs may be alleging a risk of future injury, but that will not suffice to make out an injury.

Plaintiffs’ allegations about “Oregon banks” and “many banks” involve entities not parties to this case. Also plaintiffs have not adequately alleged facts demonstrating that plaintiff Oregon Bankers Association’s members have standing, that plaintiff cannot sustain associational standing itself, the court noted sua sponte.

Read Estate Exchange, Inc. v Brown, 2021 WL 5855660 (D Or 2021) In this antitrust action under the Sherman Act and section 1983, plaintiff contends that Governor Brown and various state boards and commissioners and individual board members violated the Fourteenth Amendment and Article I, section 20, of the Oregon Constitution. The court granted defendants’ motion to dismiss for failure to state a claim. It footnoted: “Defendants do not challenge whether Plaintiff has third-party standing to assert claims on behalf of its customers. The Court does not address this issue in detail but notes that federal courts commonly recognize an exception to the rule against third-party standing when commercial businesses assert the rights of their customers.”

Total Real Estate Group, LLC v Strode, 2022 WL 633670 (D Or 2022) House Bill 2550, enacted by the Oregon Legislature, provides: “to help a seller avoid selecting a buyer based on the buyer’s race, color, religion, sex, sexual orientation . . . a seller’s agent shall reject any communication other than customary documents in a real estate transaction, including photographs, provided by a buyer.” These communications are called “love letters” where the potential buyer seeks to influence the seller to sell. Plaintiff sought a preliminary injunction to bar enforcement of that new law on First Amendment grounds. The court held that plaintiff, as real estate agent group, has direct standing to challenge a new law restricting communication between buyers and sellers. The court held that plaintiff as an agent warrants third-party standing to bring the case on behalf of its clients, due to the fiduciary relationship and the capable of repetition/evading review aspect of quick transactions. Held: preliminary injunction granted due to the loss of First Amendment rights of realtors and clients.

Conferral Morgan v Kimco Realty Corp., 2022 WL 716666 (D Or 2022) Local Rule 7.1 requires parties to confer before filing a motion. Defendant did not do so because “he” was out of town [presumably the court meant defense Page 3 of 32

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counsel]. But any pretrial conferral would have been futile, evidenced by post-filing conferral. “While Kimco’s counsel should have made a more meaningful attempt to confer prior to filing its motion, the Court denies Morgan’s request for sanctions under the circumstances present here.”

Kounalis v Credit Associates, Inc., 2022 WL 860939 (D Or 2022) The “Court notes that Plaintiff’s motion for partial summary judgment does not certify conferral as required by Local Rule 7-1(a) and Defendant represents that Plaintiff did not, in fact, confer prior to filing her motion. . . . .The failure to confer supplies an independent basis for denying Plaintiff’s motion. LR 7-1(a)(3).”

Amending Pleading – ORCP 23 Deep Photonics Corp. v LaChapelle, 368 Or 274 (2021) (denial of leave to amend a pleading under ORCP 23 A is reviewed for abuse of discretion) Gillett v Tucker, 317 Or App 570 (2022) Plaintiffs’ complaint did not include a certain allegation in their breach of contract case. But the issue was litigated through the trial in plaintiff’s trial memo, opening statement, during trial, and during closing argument. “Thus, defendants implicitly consented to litigating the theory of breach of contract” under ORCP 23 B. On appeal, defendants did not assert any prejudice caused by the implied amendment and both sides presented evidence on the issue. No basis for reversal on that point.

RLF Liquidating, LLC v McDonald Brothers, Inc., 318 Or App 321 (2022) This case predates Eklof v Persson, 369 Or 531 (2022). The parties filed cross-motions for summary judgment. At that oral argument, defendants orally moved to amend their answer by interlineation based on what they called a “typo” and “an inadvertent mistake” in admitting that a tolling agreement had been in effect for all relevant times. The judge did not decide that oral motion to amend. Then fewer than six weeks before trial, defendants filed a written “motion to amend” their answer “by interlineation.” Meanwhile the judge granted plaintiff’s summary-judgment motion based on the existing answer. Plaintiff opposed defendants’ motion to amend due to timing and “obvious prejudice.” The trial court denied the defense motion for leave to amend based on timing and prejudice and “a real question” on the merits of the proposed amendment. The court of appeals reversed and remanded under the Ramsey factors, Ramsey v Thompson, 162 Or App 139 (1999), because the proposed amendment would neither change nor add a claim or defense, it was filed almost six weeks before trial, and it would not prejudice plaintiff given that the defense raised the matter in every answer they filed. It was an abuse of discretion to deny defendants’ motion to amend.

Eklof v Persson, 369 Or 531 (2022) This is a post-conviction case. In 1995, petitioner was convicted of aggravated intentional murder. Petitioner moved to amend her complaint to introduce new claims that the state withheld Brady material in her criminal trial. The post-conviction court considered judicially noticeable facts in evaluating whether the petitioner’s claims were futile and denied petitioner leave to amend under ORCP 23 A. The Supreme Court held that the trial court erred, explaining that the “gravamen of the inquiry under ORCP 23 A is prejudice to the opposing party and we clarify that merit is relevant only insofar as ORCP 23 A permits leave to be denied for futile amendments.”

The “key inquiry driving the exercise of discretion under ORCP 23 A is the extent of prejudice to the adverse party” under C.O. Homes, LLC v Cleveland, 366 Or 207 (2020). “We reiterate that prejudice remains the key inquiry under ORCP 23 A, but based on the . . . text, context, and legislative history of ORCP 23 A, we also agree with the federal courts [interpreting FRCP 15(a)] that, even absent a showing of prejudice, justice does not require futile amendments to be allowed.” Futile amendments are those that could not prevail on the merits.

For example, if the court lacks subject matter jurisdiction, the claim is futile because the claim cannot proceed and no discovery could repair that, see ORCP 21 A(1)(a). Another example is claims that are barred by the statute of limitations on their face, see ORCP 21 A(1)(i). But if a party’s “claims are not futile, they may not be Page 4 of 32

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disallowed based on their likelihood of success, however slim that likelihood may seem to the court when considering the motion to amend.” In determining if discoverable evidence could substantiate a party’s claim, the court may consider judicially noticeable facts, see OEC 201(b), which are outside the face of the pleading, including decisional, constitutional and public statutory laws, see OEC 202(1). A “court may consider judicially noticeable facts in evaluating motions for leave to amend to the extent that such facts are relevant to determining whether justice required that leave to amend be granted.” Held: the post-conviction court here abused its discretion in denying leave to amend based on two witnesses because they were not futile, but another claim was futile.

Clark v. University of Oregon, 319 Or App 712 (2022). Plaintiff, a basketball player, was invited to make an official visit to U of O while he was a junior college player. The U of O coaching staff ran him through a workout that violated NCAA rules in a least several respects. During one of the drills, a coach bumped plaintiff, resulting in plaintiff tearing his ACL. Plaintiff sued the U of O and much of its coaching staff for negligence and later moved for leave to amend the complaint to add a claim for negligent supervision against the head coach. The trial court denied the motion, concluding that the claim would not relate back to the original complaint and, as a result, would be time barred. The court of appeals reversed, concluding that the allegations in the original complaint sufficiently put defendants on notice of the head coach's negligent supervision such that the amendment would relate back to the original filing and, consequently, be timely. Because defendants didn't otherwise identify any prejudice from the amendment, the trial court erred in denying leave to amend under ORCP 23 as interpreted by Elkof.

Kounalis v Credit Associates, Inc., 2022 WL 860939 (D Or 2022) Plaintiff sued defendant for a violation of the Fair Debt Collection Practices Act. She filed for leave to amend her complaint to add a claim under the FDCPA for making false or deceptive statements. Defendant responded that the motion is futile as time-barred under the one-year statute of limitations, prejudicial, and in bad faith. Under FRCP 15(a), courts “consider the following factors when determining whether to grant leave to amend [pleadings]: (1) undue delay; (2) bad faith or dilatory motive; (3) repeated failure to cure deficiencies; (4) undue prejudice to the opposing party; and (5) futility of the amendment.” The court here denied plaintiff’s motion for leave to amend because it is futile under the FDCPA’s one-year limit. “Futility alone can justify the denial of a motion to amend.” “A claim is futile if no set of facts can be provided under the amendment to the pleadings that would constitute a valid and sufficient claim or defense.”

Amending Pleading – Punitive Damages, ORS 31.725 Dalbeck v Bi-Mart Corp., 315 Or App 129 (2021) To add a claim for punitive damages under ORS 31.725, a plaintiff must establish a prima facie case that would allow for a finding that the defendant has acted with malice or shown a reckless and outrageous indifference to a highly unreasonable risk of harm and has acted with a conscious indifference to the health, safety, and welfare of others. Here, defendant refused to sell 18-year old plaintiff a firearm, under its policy of not selling guns to people under 21. Under ORS 659A.403, an agediscrimination statute, “[t]hat is age discrimination.” However, because the statute is ambiguous and there are no court decisions construing it, “it is not inferable on this record that the defendant’s (alleged) violation of [the statute’s] prohibition on age discrimination involved malice or the sort of indifference that allows for an award of punitive damages.” The trial court did not err in denying plaintiff’s motion to amend the complaint to add a punitive damages claim.

Smith v City of The Dalles et al, 2021 WL 2287421 (D Or 2021) In federal court, a plaintiff may be entitled to punitive damages even though a complaint did not expressly request punitive damages, although unfair prejudice to the other party may preclude unpled punitives. Defendant moved pretrial to preclude plaintiff from seeking punitive damages. The court denied that motion as to the individual defendant: “Punitive damages Page 5 of 32

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may even be available when a plaintiff is unable to show compensable injury.” And further, “punitive damages are awarded in the jury’s discretion.” The court “will decide after the close of evidence” if a jury may be allowed to consider punitives to the individual. As to defendant-city: Municipalities are not liable for punitive damages.

And OTCA claims are not eligible for punitive damages, so plaintiff may not seek punitive damages against the defendant-city.

Self v Columbia County, et al, 2021 WL 2875659 (D Or 2021) Plaintiff was in jail. A jail inmate broke plaintiff’s jaw in jail. Plaintiff sued the county and an individual sergeant who released him from jail early despite his reports of facial pain. Plaintiff’s claims are for negligence, “intentional and/or reckless infliction of emotional distress,” and what he characterized as a Fourteenth and an Eighth Amendment section 1983 claim based on deliberate indifference. The court noted that it is an Eighth Amendment claim and dismissed the Fourteenth Amendment aspect. The court granted summary judgment for defendant on the “reckless” infliction of emotional distress claim, because “there is no cognizable claim” for reckless infliction. As for the negligence claim that is based on the same facts as his Eighth Amendment claim: Plaintiff may proceed on alternative theories of negligence and recklessness (the Eighth Amendment claim), thus defendant’s motion for summary judgment is denied on the negligence claim. Plaintiff also seeks punitive damages against defendants. As to punitive damages: plaintiff established a fact issue on whether the jail sergeant denied plaintiff adequate care by releasing plaintiff who had been complaining of jaw pain, thus summary judgment is denied on punitives.

Pretrial Motions to Dismiss See also Standing, ante.

• Failure to Allege Ultimate Facts / Failure to State a Claim - ORCP 21 A(1)(h) and FRCP 12(b)(6) Moyer v Columbia State Bank, 316 Or App 393 (2021) Defendants moved to dismiss under former ORCP 21 A(8), alleging, inter alia, that documents plaintiff attached to the complaint do not prove or allege certain facts. But the court “ultimately [interpreted] the defense “to contend that plaintiffs must plead further evidence to support the breach of contract claim. . . . no such further detail nor supporting evidence was required at the pleading stage.” Plaintiffs “are not required under ORCP 18 A to allege evidence.” All reasonable inferences from the allegations must be drawn in favor of plaintiffs and whether plaintiffs can ultimately present evidence is not before the court. A claim will survive a motion to dismiss if the complaint contains even vague allegations of all material facts, as here.

Nevius v Palomares, 314 Or App 193 (2021) In action for declaratory relief challenged under ORCP 21 A(8), a court “must determine if those allegations are legally sufficient to establish the existence of a justiciable controversy.” An “action for declaratory judgment may not be dismissed for failure to state a claim. If the complaint presents a justiciable controversy, a motion to dismiss brought under ORCP 21 A(8) should be denied.” In an action for injunctive relief challenged under ORCP 21 A(8), a court determines whether the party “pleaded ultimate facts that would allow a finder of fact to determine that [the party] had no adequate remedy at law.” A party does not fail to state a claim for injunctive relief by not writing in the pleading the words “no adequate remedy at law” or “irreparable harm” if ultimate facts are alleged to establish those points. Courts [usually] consider just the pleadings under former ORCP 21 A(8), renumbered as ORCP 21 A(1)(h).

R.S.R. v Dep’t of Human Services, 319 Or App 149 (2022) Father and son (plaintiffs) brought a negligence claim against son’s therapist, Oregon DHS, and Kaiser Permanente, after “dismissal of juvenile dependency proceedings involving his son.” They claimed purely psychological injuries as negligent infliction of emotional distress. Plaintiffs did not allege any special relationship with DHS nor did they allege another legally protected interest with DHS. The trial court dismissed under former Page 6 of 32

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ORCP 21 A(8), renumbered as ORCP 21 A(1)(h). The court of appeals affirmed. The court of appeals first determined that it had jurisdiction over the case, because the notice of appeal gave DHS “jurisdictionally adequate” notice of appeal over a specific limited judgment. To the merits: Under Fazzolari v Portland School Dist. No. 1J, 303 Or 1 (1987), damages are recoverable for injuries that are foreseeable from another’s unreasonable conduct. Negligence claims based purely on allegations of emotional, psychological, psychic harms, however, are not cognizable without another legal source of liability.

Here, plaintiffs alleged no facts, and instead merely “point” to various administrative rules and a statute on juvenile-dependency policy and Troxel v Granville, 530 US 57 (2000) (due process right to parents bringing up children). Plaintiff did not develop argument on how the law applies to this case or what the special relationship is. Thus, “whatever further argument plaintiff may have in support of imposing liability here, we will not make it for him.”

Pranger v Oregon State University et al, 2022 WL 214629 (D Or 2022) The court footnoted the “incorporation by reference” doctrine that permits federal courts to consider documents outside the pleadings “where (1) the complaint necessarily relies upon a document or the contents of the document are alleged in a complaint, (2) the documents authenticity is not in question, and (3) there are no disputed issues as to the document’s relevance” citing Knievel v ESPN, 393 F3d 1068 (9th Cir 2005). In this case, plaintiffs disputed the contract’s relevance and the court resolved the case without needing to refer to it.

Murphy v United States, 2022 WL 74339 (D Or 2022) The court granted defendant’s FRCP 12(b)(1) and 12(b)(6) motions against plaintiff-doctor’s claims. The court footnoted several bases allowing a court to consider material beyond a complaint when deciding an FRCP 12(b)(6) motion without converting the motion to dismiss into a motion for summary judgment. One is judicial notice of public record; here, state and federal court files. Another is the “incorporation by reference” doctrine, applicable if: “(1) the complaint refers to the document; (2) the document is central to the plaintiff’s claim; and (3) no party questions the authenticity of the copy attached to the 12(b)(6) motion,” which had been met.

Nicita v Holladay et al, 2022 WL 1026729 (D Or 2022) Plaintiff, a pro se member of the Oregon State Bar, filed various claims against the mayor of Oregon City and others. Defendants moved to dismiss.

The magistrate judge recommended dismissing the action with prejudice and denying plaintiff’s motion to amend. The district court adopted those conclusions (except for one constitutional challenge). The district court agreed that the claims should be dismissed with prejudice because repleading is futile.

“Plaintiff objects that he deserved liberal treatment and detailed notice of his complaint’s deficiencies, yet he does not explain how he would cure those deficiencies if he were granted leave to amend, choosing instead to argue that his allegations were never inadequate in the first time.” The magistrate judge did give his “pro se” complaint “generous, liberal treatment” which “was proper given Plaintiff’s status as a member of the Oregon State Bar.” Derby v Columbia County, 2022 WL 1078609 (D Or 2022) and 2022 WL 1090531 (D Or 2022) (“shotgun pleading”) Plaintiff suffers from numerous psychiatric conditions. For several crimes, he was sentenced to probation, then he violated probation and went into an arrest-release cycle with jails. He was released, collapsed, and was admitted to a psychiatric ward due to suicide risk and inability to care for himself. Later, he left the psychiatric ward. His parents picked him up, he jumped out of their moving car, four days later he cut his mother’s throat with a butcher’s knife, and at the jail he tried to commit suicide with a razor blade. He pled guilty except for insanity for attempting to murder his mother.

Through a guardian, he sued numerous persons within the jail and mental health services through section 1983 for Eighth and Fourteenth Amendment violations (deliberate indifference, systemic practices, and jail policies). Defendants moved to dismiss under FRCP 12(b)(6). The court granted in Page 7 of 32

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part and denied in part. “Pleadings that seek to overwhelm defendants with an unclear mass of allegations and make it difficult [or] impossible for the defendants to make informed responses to the plaintiff’s allegations are considered ‘shotgun’ pleadings.” Also some allegations named private health providers that are not pled as state actors. And plaintiff does not allege that OTCA notice was given. As to the two-year statute of limitations, it is tolled due to plaintiff’s disability. Leave to amend to replead is granted.

• Subject Matter Jurisdiction - ORCP 21 A(1)(a) and FRCP 12(b)(1) State v F.T., 316 Or App 772 (2022) This juvenile case does not mention jurisdiction; however, the court addressed ORS 14.174, which allows for moot appeals to be considered if a litigant has standing and the challenged act is capable of repetition but likely to evade judicial review in the future.

McFalls v Vilsack, 2022 WL 1488451 (D Or 2022) Subject matter jurisdiction is never forfeited or waived and it may be raised by any party or by the court on its own at any time. The court granted defendants’ motion to dismiss under ORCP 12(b)(1), as the case is moot. In so doing, the court considered documents and evidence outside the pleadings, as it is proper to consider “any evidence” to resolve factual disputes concerning the existence of jurisdiction.

Grainger v Ensley, et al, 2022 WL 1439132 (9th Cir 2022) (unpublished) “A district court may, in its discretion, continue to exercise supplemental jurisdiction over state law claims even after the final disposition of all federal claims.” In this wrongful-death case, the district court erred in granting summary judgment to defendants, who are Oregon State Police troopers, the county, the county sheriff, and a sergeant. Plaintiffs are the mother and personal representative of a deceased man’s estate. The decedent had been lying beside a highway, yelling that he wanted to die. Troopers spoke with the man, but did not take him to a sobering facility. The man walked home, then killed himself an hour later. His mother sued for negligence and for a violation of ORS 430.339. Suicide is a foreseeable risk in this allegedly “inadequately performed welfare check on a person showing signs of suicidal ideation.” The statutory immunity applies “only when there are actions” but in this case they are alleged to have “failed” to act. Held: reversed and remanded.

Nevius v Palomares, 314 Or App 193 (2021) If there is no controversy between parties, a case may be moot, leaving a court lacking subject matter jurisdiction over it. But a defense of mootness based on voluntary cessation of the act may fail when the act can be resumed. Here, the defense did not file anything to establish that they agreed to cease the act in the future. Email from defense counsel to plaintiff’s counsel does not relinquish defendants’ future rights. Defense admissions to requests for admissions under ORCP 45 were not filed as required by ORCP 9 C(1) and even if they had been, those admissions would be for the “pending action only,” not to “be used against that party in any other action.” To “overcome the voluntary cessation exception [to mootness], a defendant who has previously asserted a legal right leading to a lawsuit is required to affirmatively relinquish that right, particularly if a defendant’s conduct in ceasing the activity appears calculated only to moot the lawsuit.”

That is “to prevent a recalcitrant defendant from ceasing conduct while the lawsuit is pending, merely to resume it once the case is dismissed as moot.” Held: trial court erred by dismissing the claim for declaratory relief as moot because defendants’ conduct is “voluntary cessation” under former ORCP 21 A(1). The court may consider things outside the pleadings under former ORCP 21 A(8), renumbered as ORCP 21 A(1)(h).

Underwood v City of Portland, 319 Or App 648 (2022) The court of appeals footnoted that the trial court had converted a motion to dismiss under former ORCP 21 A(8), renumbered as ORCP 21 A(1)(h), into a Page 8 of 32

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motion for summary judgment under ORCP 47 C “because both parties had cited to extensive evidence outside the pleadings.”

Farhoud v Brown, 2022 WL 326092 (D Or 2022) Dispute over county rent-moratorium ordinances is not moot, as subsequent ordinances are substantially similar to those expired. “A defendant’s voluntary cessation of challenged conduct does not always moot the case” because if “it did, the courts would be compelled to leave the defendant … free to return to his old ways.” Federal courts “presume a claim is moot when a government actor has voluntarily ceased the challenged conduct ‘unless there is a reasonable expectation that the legislative body is likely to enact the same or substantially similar legislation in the future.”

Hospitality Management, Inc. v Preferred Contractors Ins. Co., 2022 WL 1022637 (D Or 2022) “Subject matter jurisdiction can never be forfeited or waived because it involves the [federal] court’s power to hear a case. . . . This rule is inflexible and without exception. . . . Indeed, a party, after losing at trial, may move to dismiss the case because the trial court lacked subject-matter jurisdiction . . . even if the party had previously acknowledged the trial court’s jurisdiction.” A court is obligated “to investigate and ensure its own subject matter jurisdiction.” Under Ninth Circuit precedent, “district courts may impose monetary sanctions to punish and deter efforts to manipulate jurisdiction. . . . Here, the Court has significant concerns about [defendant] possibly engaging in the manipulation of jurisdiction.”

• Dismissal as sanction Schuppert v Orchard Supply Co., LLC, 2022 WL 903222 and 2022 WL 900787 (D Or 2022) Plaintiff decided not to attend her deposition and a court conference. Under FRCP 37(d), a court may dismiss a case or claim as a sanction for a discovery violation. A court must weigh five factors before dismissing: the public’s interest, the court’s interest, risk of prejudice to defense, public policy favoring adjudication on the merits, and less drastic sanctions. Under FRCP 41(b), a court may dismiss a case for failure to diligently prosecute. Case dismissed with prejudice.

Laack v Botello, 314 Or App 268 (2021) ORS 1.010 is not a statutory source for authority to strike pleadings or dismiss a case as a sanction.

Markstrom v Guard Publishing Company, 315 Or App 309 (2021) The trial court, finding that plaintiff had deliberately destroyed evidence, dismissed the case before the jury returned a verdict. The court of appeals reversed and remanded: “ORCP 46 D unambiguously applies only in two circumstances—when a party (1) fails to appear for a deposition or (2) fails ‘to comply with a request for production submitted under ORCP 43, after proper service of the request.’” “Unlike the Federal Rules of Civil Procedure, see FRCP 37(e), no Oregon statute or rule of which we are aware authorizes the dismissal of a claim as a sanction for a prelitigation failure to preserve evidence.”

Wetzel v Sandlow, 318 Or App 608 (2022) (“any remedy for a discovery violation is obtained through . . .

ORCP 46, not through an automatic determination that evidence does not exist or [the party] is willfully suppressing it”) Another Action Pending – ORCP 21 A(1)(c) Bunch v Lowry, 313 Or App 398 (2021) The trial court erred in dismissing plaintiff’s FED action under former ORCP 21 A(3), renumbered as ORCP 21 A(1)(c).

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Assignment University of Oregon v Phillips, 2022 WL 873680 (D Or 2022) This is an issue of first impression: whether and when a personal injury case can be assigned. Defendant was a police officer for University of Oregon’s police department. While on duty, defendant attacked and arrested a man on a bike, who was then prosecuted, with defendant’s allegedly false testimony at trial. UO investigated defendant, concluded he had engaged in egregious misconduct, and fired him. The prosecuted man filed a tort claim notice against UO. The man, who later died unrelated to defendant’s conduct, settled through his estate. One term of that settlement agreement is that the man’s estate assigned its personal injury case against UO to UO. Thus UO became plaintiff against the police officer in the present section 1983 case, seeking nominal damages. Defendant moved to dismiss under FRCP 12(b)(1) and (6). The court described “maintenance” and “champerty.” Maintenance is someone, who has no bona fide interest in a case, helping another prosecute a suit. Champerty is an officious intermeddler seeking a financial interest in a suit with a litigant. Here, UO as assignee of the man’s rights does not implicate public policy concerns of either maintenance or champerty. UO is not an intermeddling stranger. It is a public institution. It employed defendant. It does not seek to profit from the assignment. The assignment is allowed.

Removal and Remand between federal and state court Jensen v State Farm Fire and Casualty Company, 2021 WL 5915117 (D Or 2021) Plaintiff recklessly burned down his apartment, part of his apartment complex, and a coffee shop. Over three years later, plaintiff sued his insurer in state court. He sought $25k for his personal property loss plus over $840k for “liability claims” from the apartment complex and coffee shop. His theory is breach of insurance policy for not paying $865,582 to settle those claims. Plaintiff does not contend that the apartment complex or the coffee shop sued him or that he paid any damages. Defendant – his insurer – removed the case to federal court. Defendant moved to dismiss for lack of subject matter jurisdiction. The court concluded that the existence of damages that plaintiff is legally liable for is a condition precedent to defendant having a duty to indemnify under the insurance policies at issue. Plaintiff might not suffer any of the $840k alleged loss. The court would be in the “untenable position of sanctioning a potential windfall based on the inaction of a subrogation insurer who is not even a party to this case.” Held: The court lacks subject matter jurisdiction because the only ripe claim is the $25k. The court remanded to the state court.

Rushing v Ross Dress for Less, Inc., 2021 WL 5989917 (D Or 2021); 2021 WL 5989082 (D Or 2021) Plaintiff sued for $55,000 for race discrimination in state court. Defendant removed to federal court. Plaintiff moved to remand to state court under 28 USC §1447. Defendant contended that plaintiff is engaging in “gamesmanship” by alleging >$50k to avoid arbitration but <$75k for federal court. Defendant bears the burden of establishing by a preponderance that the amount in controversy is >$75k and to meet that burden, defendant must “make this showing with summary-judgment-type evidence.” Punitive damages and attorney fees may be available to a plaintiff alleging race discrimination. That “plaintiff has not requested attorney fees or punitive damages does not affect her statutory right to pursue such damages, nor does it preclude such damages from the amount-incontroversy calculation. . . . Rather, a court must include future attorneys’ fees recoverable by statute or contract when assessing whether the amount-in-controversy requirement is met. . . . In addition, the court may include potential punitive damages in this assessment.”

Regarding fees: plaintiff could waive her right to attorney fees “or even agree to limit them to avoid the federal jurisdictional amount.” The Ninth Circuit has upheld the “conservative” method of estimating attorney fees by multiplying pled economic damages by 12.5%. Here, plaintiff retained four experienced trial attorneys (as of five years ago they charged as follows: G.K. at $500/hr; M.M. at $450/hr; J.K. at $350/hr; and A.K. at $250/hr). The court calculated 80 billed hours plus the $55k pled would meet the controversy requirement of >$75k (noting that discovery is quite broad, plaintiff seeks emotional distress damages, the defense will file a motion for summary judgment, and similar cases recited produced >$100k in fees alone).

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Regarding punitives: multiple court decisions, upheld by the Ninth Circuit, have used a “conservative” estimate of 1:1 for punitives:compensatories when assessing the amount-in-controversy issue. This is an “intentional” discrimination case, not an accidental discrimination case, thus “it is likely that punitive damages would comprise a significant portion of plaintiff’s potential recovery.” Applying the conservative 1:1 ratio for punitives, even excluding fees, that exceeds $75k.

Held: Plaintiff’s motion is denied because the parties are in complete diversity and the amount in controversy exceeds $75,000.

Requests for Admission – ORCP 45; ORCP 9 C(1) Nevius v Palomares, 314 Or App 193 (2021) (file responses to requests for admission with the court) Wetzel v Sandlow, 318 Or App 608 (2022) (unanswered requests for admission can be deemed admitted) Discovery See Pretrial Motions to Dismiss, ante.

Summary Judgment – ORCP 47 C Sause v Hummel, 318 Or App 869 (2022) (“although a party may add a legal theory at summary judgment, under ORCP 23 ‘we cannot treat the pleadings as amended to include plaintiff’s [new legal theory] unless plaintiff obtained the consent of the court or of defendant’”) McPherson v Coos Bay-North Bend Water Board, 318 Or App 582 (2022) This is a declaratory judgment action.

Both sides moved for summary judgment. The trial court did not err in granting defendants’ motion for summary judgment and denying plaintiff’s motion. However, the judgment is vacated and remanded, because in declaratory judgment actions, dismissal is not the proper disposition. Instead, the trial court is to declare the rights of the parties in its judgment.

Borough v Caldwell et al, 314 Or App 48 (2021), 314 Or App 62 (2021) A man died. His trust beneficiaries (petitioners) were his two adult children from a prior marriage, who filed a probate petition to have the man’s widow removed as trustee, because widow sold the trust’s main asset, a farm, to widow’s grandson and his wife (optionees), and petitioners want the farm sale declared void. The first case between the parties, Borough I, is a declaratory judgment action. Defendants moved for and the trial court granted summary judgment. The trial court did not err in granting defendants’ motion for summary judgment, but the plaintiff is entitled to a declaration of rights, “even if that declaration is directly contrary to what it believes its rights to be. It is incumbent on the court to declare the respective rights of the parties. It is “counterintuitive” but trial courts should not “dismiss declaratory judgment claims” (emphasis by court). Instead, “we routinely vacate the existing judgment and remand for entry of a new judgment that contains a declaration.” “This is such a situation.” The second case between the parties, Borough II, the trial court granted widow’s and her grandson’s motion to dismiss under former ORCP 21 A(3) (another action pending) and claim preclusion. That was error: A plaintiff who has won or lost a declaratory judgment action may bring a subsequent action for other relief, subject to the constraint of the determinations made in the declaratory action, because a declaratory action determines only what it actually decides and does not have a claim preclusive effect on other contentions that might have been advanced. This is a special rule of declaratory judgment, actions consistent with Restatement (Second) of Judgments, §33, comment c. Held: Reversed and remanded.

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Offer of Judgment – ORCP 54 E(3) Mendoza v Xtreme Truck Sales, 314 Or App 87 (2021) Defendant sent an offer of judgment to plaintiff under ORCP 54 E(3). Plaintiff rejected it. The arbitrator awarded plaintiff less than defendant’s offer. After the arbitrator issued a decision and it was entered as a final judgment, defendant filed a motion under ORCP 54 E(3) to award defendant fees and costs. Plaintiff responded that it’s too late because defendant had not appealed the arbitrator’s decision. Defendant argued it is not too late, because it isn’t appealing the arbitrator’s decision itself. The trial court denied defendant’s ORCP 54 E(3) motion on timeliness grounds. The court of appeals reversed: an arbitrator’s decision is a decision on the merits that has final adjudicatory effect once judgment is entered on its decision.

Evidence; Impeachment; Witness’s Credibility; Prior Conviction State v Aranda, 319 Or App 178 (2022) The Due Process Clause of the Fourteenth Amendment requires OEC 403 balancing before impeachment under OEC 609(1) of a witness’s credibility with a conviction of a felony or a crime involving a false statement or dishonesty.

Evidence; Character Testimony – OEC 608 State v Anderson, 314 Or App 495 (2021) A Drug Recognition Expert evaluated a driver and concluded she was under the influence of cannabis while driving with her son and with meth in the car. The trial court granted the state’s motion to exclude testimony about people’s opinions of the drug recognition expert’s reputation for truthfulness. Accepting the state’s concession that that was error under OEC 608, the court of appeals reversed: Testimony that some people find an expert witness truthful and some find the expert witness untruthful is admissible under OEC 608. The exclusion was not harmless: “Those tests were done with only [the expert] and the defendant in the room and could have easily been manipulated if [the expert] had decided to do so.

Therefore, [the expert’s] credibility – whether his tests and opinion are trustworthy – as important to the jury’s consideration”.

Smith v Brown, 2021 WL 4433178 (D Or 2021) Post-conviction case. Under OEC 608(2), specific instances of conduct of a witness, for the purpose of attacking or supporting the credibility of the witness may not be proved by extrinsic evidence, nor may such instances, even if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness.” (The Confrontation Clause in Article I, section 11, is an exception, allowing a criminal defendant to cross-examine a complaining witness regarding other accusations if she recanted them, or if the accusations were false, or if there is some evidence that the complainant has made prior accusations that were false unless the probative value of the evidence is substantially outweighed by the risk of prejudice, confusion, embarrassment, or delay.). Held: The text of OEC 608(2) prohibited the defense from cross-examining a witness about a prior false allegation of sexual abuse.

Evidence; Excited Utterance – OEC 803(2) Wilson v Laney, 317 Or App 324 (2022) Criminal defense trial counsel performed inadequately by not objecting to certain hearsay as excited utterances under OEC 803(2). Petitioner allegedly broke into his mother’s house and punched his minor nephew. The victims called the police, who arrived 5-10 minutes later. Police officer took statements from the victims for 45 minutes. At trial, the nephew claimed to remember nothing. Mother remembered. Officer testified about what nephew and mother had told him on the scene. The court of appeals concluded: The statements to police officer “were not admissible as excited utterances.” There is no evidence that the declarants were frightened, in shock, or stressed so as to lack capacity for reflection. The victims gave statements when they were “very upset” and “agitated” and “extremely emotional” but “there are important gradations to such emotions.” Three requirements exist for a statement to qualify as an excited utterance: (1) a Page 12 of 32

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startling event or condition must have occurred; (2) the statement must have been made while the declarant was under the stress of excitement caused by the event or condition; and (3) the statement must relate to the startling event or condition. Whether an event is “startling” is a “uniquely subjective” inquiry. As for the second requirement, there is “both a causal and a temporal dimension,” in that “[t]he declarant's excitement must have been caused by the startling event, and the declarant's statement must have been made while the excitement persisted.” In other words, an excited utterance “is really an effusion.” The spontaneity of the utterance are assessed by the lapse of time, place, content of the utterance, physical or mental condition of the declarant, whether made in response to an inquiry, and presence or absence of a motive to fabricate. Whether the requirements of OEC 803(2) have been met and the hearsay statement is admissible as an excited utterance is a question of law. Reversed and remanded to the post-conviction court.

Evidence; Business Records Exception to Hearsay Rule – OEC 803(6) Arrowood Indemnity Co v Fasching, 369 Or 214 (2022) Plaintiff sued defendant because defendant didn’t pay her student loan. Plaintiff had purchased the loans from another lender. Plaintiff filed for summary judgment with a supporting affidavit that did not purport to know the record-making or -keeping practices of the original lenders. The trial court admitted the documents plaintiff had received from the former lender and granted plaintiff’s motion for summary judgment. The court of appeals affirmed. The Supreme Court reversed, with two dissenters. The party seeking the admission of hearsay has the burden to prove the hearsay evidence meets an exception. For OEC 803(6), the business records exception to the hearsay rule, “the party proffering the documents must present evidence of the third party’s record-making practices sufficient to establish . . . that the documents were made close in time to the acts they describe, by – or from information transmitted by – a person with knowledge, as part of a regularly conducted business activity, and pursuant to a regular recordmaking practice.” The court noted: “the legislature created a residual hearsay exception that allows for the admission of hearsay that does not satisfy the requirements of a specific exception, if the hearsay is reliable, highly probative, and necessary. So, if a business cannot lay the required foundation for the business records exception, it can seek to use the residual exception”.

National Collegiate Student Loan Trust v Gimple, 318 Or App 672 (2022) Plaintiff alleged that it owned defendant’s loan contract and she’d failed to pay. Defendant had not paid, but defendant responded that plaintiff failed to allege facts sufficient to show plaintiff was the party in interest on the loan. Plaintiff moved for summary judgment, with an employee’s affidavit to introduce loan records. Plaintiff had purchased the loan from the original lender, as stated in the affidavit. Defendant cross-motioned for summary judgment, asserting that plaintiff had produced no evidence it was a party entitled to enforce the contract. Plaintiff responded with the employee’s affidavit as records custodian under OEC 803(6) as a hearsay exception, acknowledging that she had no firsthand knowledge of the original lender’s record-making process. Defendant responded that the employee was not a “person with knowledge” for OEC 803(6). The trial court agreed under Arrowood. Held: The trial court correctly granted defendant’s cross-motion for summary judgment. The employee did not authenticate the records because she had “no personal knowledge” of the prior lender’s business practices, which is the business that initially made and kept the record. The trial court did not err in excluding “the evidence” which was the loan agreement and the sale agreement between plaintiff and the original lender.

Fees St. Charles Health Systems, Inc. v Oregon Federation of Nurses and Health Professionals, 2021 WL 5986813 (D Or 2021) The federal district court, sua sponte, ordered a named attorney for St. Charles to show cause why he should not be sanctioned for violating his ethical duty to alert the Court to directly contrary authority and for filing this case in bad faith. The Court “expressly finds here, as an attempt to deceive the Court via a material omission (of directly contrary authority),” the St. Charles lawyer convinced the Court to issue an injunction on Page 13 of 32

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short notice to provide St. Charles “with a useful bargaining chip during ongoing negotiations” with the defendant nurses’ union. The federal district court judge wrote: “As the Court now understands, any attorney with any experience involving labor disputes like the one at issue here would certainly understand that the law did not allow for a district court to issue an injunction under these circumstances. The Court finds that Plaintiff intentionally omitted any mention of that law when arguing they were entitled to emergency injunctive relief. The same day Defendant removed this action, Plaintiff's counsel emailed chambers staff seeking a hearing that afternoon. . . . At the time of this request, the only briefing the court had on the matter was the hospital's emergency motion for a restraining order. As noted, conspicuously absent from that motion was any mention of the fact that longstanding, settled caselaw clearly established that a district court lacked jurisdiction to enter such an order. In eight years on the federal bench, this action is this Court's first experience dealing with section 10(j) of the National Labor Relations Act. The reason federal courts rarely see these cases is simple: section 10(j) provides that only the National Labor Relations Board may seek an injunction to prevent an unfair labor practice under the National Labor Relations Act. One fact influencing this Court's determination that Plaintiff here acted in bad faith is the fact that although Plaintiff raised Section 10(j) in an earlier motion (at the administrative level) asking the National Labor Relations Board to enjoin the strike, it omitted any mention of Section 10(j) in its motion for emergency relief before this Court.”

The Court required that St. Charles attorney and his law firm to pay $40,652 in fees, but did not require the client, St. Charles hospital, to pay. The defense had emailed the hospital directly about this situation but the hospital does not have to pay this sanction.

Albrecht v Emmert, 317 Or App 42 (2022) (no error for trial court to deny prevailing plaintiffs’ motion for attorney fees under ORCP 20.105 because plaintiffs failed to comply with ORCP 68) Wedemeyer v Nike IHM, Inc., 319 Or App 781 (2022) Defendant prevailed in this employment case. Defendant had not alleged a right to attorney fees, as required for an award of attorney fees under ORCP 69 C(2)(a), but the trial court awarded attorney fees to defendant. The court of appeal reversed: “The requirement in ORCP 68 that a party allege the right to attorney fees is mandatory and there is no dispute that defendant failed to comply with that directive.” This is plain error: it is legal error, obvious, not reasonably in dispute, and apparent on the record. This error led to a significant money judgment against plaintiff and the trial court “had two separate opportunities to correct its error” so the court of appeals used its discretion to correct the error. Also the trial court was correct in that it lacked jurisdiction to address defendant’s motion to amend its answer to add an attorney-fee claim – after the general judgment and the notice of appeal had been entered.

Relief from Default – ORCP 71 Heritage Properties v Wells Fargo Bank, N.A., 318 Or App 470 (2022) “ORCP 71 B(1)(c) permits a trial court to set aside a judgment upon a showing of either intrinsic or extrinsic fraud.”

Wetzel v Sandlow, 318 Or App 608, 614-15 n 5 (2022) (Rule 71 B reviewed for legal error; Rule 71 C reviewed for abuse of discretion) Reconsideration Gefroh v Gefroh, 2002 WL 79794 (D Or 2022) A party sought reconsideration of an order and judgment remanding the case to state circuit court. The court here denied the request for reconsideration: “Although the Federal Rules of Civil Procedure do not expressly authorize a motion for reconsideration, [a] district court has the inherent power to reconsider and modify its interlocutory orders prior to the entry of judgment.” (case citation omitted). Under FRCP 54(b) any order or other decision that adjudicates fewer than all of a parties’ claims [sic] “may be revised at any time before the entry of a judgment adjudicating all the claims and the Page 14 of 32

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parties’ rights and liability.”). The court also footnoted that “the same standard governs” an FRCP 54(b) motions for reconsideration of an order of final judgment as reconsideration of interlocutory orders under FRCP 54(b).

Reconsideration is an “extraordinary remedy, to be used sparingly I the interests of finality and conservation of judicial resources.”

Jury • Jury Trial Waiver – ORCP 51 C Opal Labs, Inc. v Sprinklr, Inc., 2021 WL 3713042 (D Or 2021) Plaintiff moved for summary judgment against defendant’s affirmative defense that plaintiff had waived its right to a jury trial via prelitigation contract that was not an arbitration agreement. A party may voluntarily, by agreement, waive the right to a civil jury trial under Article I, section 17, of the Oregon Constitution. “Plaintiff has not identified any reason that the Oregon appellate court’s unambiguous statements that this right may be waived would not apply to agreements” such as the one involved in this case. The court denied plaintiff’s summary judgment on the jury-trial waiver that is one of defendant’s affirmative defenses. The court also reserved ruling on the scope of the prelitigation contractual jury trial waiver; that is, what claims it applies to, due to plaintiff’s lack of analysis.

• Right to Jury Trial or Jury Verdict Deep Photonics Corp. v LaChapelle, 368 Or 274 (2021) (shareholder derivative claims have right to jury trial) Zweizig v Rote, 368 Or 79 (2021) (unlawful employment claims have right to jury verdict) • Opening Statement; Failure to Object Condello v Columbia County, 2022 WL 1137305 (D Or 2022) Plaintiff did not object to defense counsel’s opening statement at trial and therefore waived the argument that defense counsel mischaracterized the issues. And anyway defense counsel did not misstate the law during his opening statement.

• Reconsideration of Pretrial Rulings at Trial State v Oatney, 369 Or 555 (2022) Pretrial rulings “are often based on ‘representations and arguments’ about what the evidence is expected to demonstrate” and are therefore “hypothetical and abstract.” As “trial progresses, new circumstances may arise that directly or indirectly alter the admissibility or evidentiary value of certain pieces of evidence.” Consequentially, “the scope of permissible argument may be affected.” “Generally, a trial court has broad discretion in determining whether to reconsider its earlier rulings and may revisit a pretrial ruling when events at trial unfold that call for adjustments to that ruling.”

• Instruction to Redeliberate – ORCP 59 G(4) McCoy v Popma, 318 Or App 600 (2022) In this auto accident case, the defendant admitted liability but contended that plaintiff was comparatively negligent. The jury found that defendant’s negligence caused plaintiff’s damages but awarded zero damages and wrote on the verdict form that each side was 50% negligent. The trial court concluded that the verdict was inconsistent and under ORCP 59 G(4), instructed the jury to redeliberate “from scratch” rather than only on damages. Plaintiff moved for a mistrial, the court denied it. The jury then returned a verdict for defendant. Plaintiff again moved for a mistrial, the court denied it. Plaintiff moved for a new trial based on jury misconduct, irregularity in the proceeding, and an incorrect jury instruction. The court denied the motion for a new trial. The court of Page 15 of 32

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appeals affirmed: No error to instruct the jury to redeliberate in full, rather than just in part regarding damages. The “proper course was to resubmit the entire claim to the jury for clarification rather than risk accepting an unintended answer by the jury.”

• Instruction on Fraudulent Concealment MAT, Inc. v American Tower Asset Sub, LLC, 312 Or App 7 (2021) (addressed under “Fraud,” ante) Two jury instructions on fraudulent concealment are correct statements of the law and did not need to include any requirement for special-relationship findings: First: “A person who makes a representation in the nature of a half-truth assumes the affirmative obligation to make a full and fair disclosure of the whole truth. The failure to make a full and fair disclosure of the whole truth may be a false representation.” Second: “A person may make a false representation of a material matter by concealing the truth. A false representation by concealment occurs when a person, by any word or act, conceals a material matter either by creating a false impression covering up the truth, or by removing an opportunity that might otherwise have led to the discovery of truth.”

• Motion for New Trial – ORCP 64 B(1) and FRCP 59(a) (including remittitur) Condello v Columbia County, 2022 WL 1137305 (D Or 2022) Moutal v Exel, Inc., 2021 WL 1887020 (D Or 2021) Defendant’s semitruck struck bicyclists on the roadway, severely injuring them. The jury awarded, among other damages, $4 million in punitives.

Defendant moved for a new trial, remittitur, and judgment as a matter of law. “Historically recognized grounds” for a Rule 59(a) motion for new trial or remittitur “include, but are not limited to, claims that the verdict is against the weight of the evidence, that the damages are excessive, or that, for other reasons, the trial was not fair to the party moving.”

“A court may grant a new trial only if the verdict is against the clear weight of the evidence and may not grant a new trial simply because the court would have arrived at a different verdict.” “In considering a Rule 59 motion for a new trial, the district court is not required to view the trial evidence in the light most favorable to the verdict.” Instead, “a district court has the duty to weigh the evidence as the court saw it, and set aside the verdict of the jury . . . where, in the court’s conscientious opinion, the verdict is contrary to the clear weight of the evidence.” The court must “independently weigh the evidence and the witness’s credibility.” Here, the court does not find that the verdict is against the clear weight of the evidence on punitives. Also, on a motion for a new trial, the court can address arguments made for the first time in the motion for a new trial. Here defendant notes correctly that matters occurring after a tort are not material to punitives. However, the driver’s post-accident evidence was relevant to the driver’s state of mind at the time of the incident, that is, whether he was reckless and consciously indifferent, and it was properly admitted.

A motion for remittitur of a jury verdict is subject to the same standard as a motion for new trial under FRCP 59(a). In its discretion, a district court may grant the motion for remittitur and order a new trial on damages, deny the motion, or grant a remittitur with the alternative of a new trial if the remittitur is not complied with.” “If the court decides to offer the option of remittitur, the jury’s verdict should be reduced to the maximum amount sustainable by the proof, so as to ensure that the court’s judgment is not substituted for that of the jury.” “If the prevailing party does not [accept] the reduced amount, a new trial must be granted” but “if the prevailing party accepts the remittitur, judgment must be entered in the lesser amount.” Here, defendant’s pre-verdict FRCP 50(a) motion challenged the sufficiency of defendant’s driver’s post-verdict conduct, not its admissibility, thus defendant waived argument about the driver’s post-verdict conduct. The court here denied the motions, reciting the evidence the jury Page 16 of 32

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heard, and concluded that the evidence was clear and convincing that defendant’s driver showed a reckless and outrageous indifference to a highly unreasonable risk of harm and acted with a conscious indifference to the health, safety, and welfare of others, under ORS 31.730. The district court noted: “While any single factor alone might not be sufficient, the combination of several factors is sufficient to raise a jury question as to whether the defendant’s conduct justifies an award of punitive damages.”

This evidence rose beyond mere inattention or simple negligence.

State v Ramoz, 367 Or 670 (2021) The trial court did not err granting defendant’s motion for a new trial under ORCP 64 B(1). ORCP 64 B(1) provides trial courts authority to grant a motion for a new trial even when the moving party did not object to the irregularity that is the basis for the motion. The court may sua sponte require a new trial when an irregularity in the proceedings denies a party a fair trial.

• Motion for Judgment as a Matter of Law – FRCP 50(b) Moutal v Exel, Inc., 2021 WL 1887020 (D Or 2021) • Judgment: inconsistency between complaint and judgment – ORCP 67 Hoff v Certainteed Corp., 316 Or App 129 (2021) ORCP 67 C states in part: “A judgment for relief different in kind from or exceeding the amount prayed for in the pleadings may not be rendered unless reasonable notice and opportunity to be heard are given to any party against whom the judgment is to be entered.” Plaintiff and his wife sued for his asbestos-related injuries and consortium loss. They amended, alleging punitives, so the operative pleading alleged for husband-plaintiff no less than $5 million in noneconomics and $250K for medicals, and for wife, no less than $1 million consortium loss.

The prayer part of the pleading repeated the $5 million and $250K but changed the wife’s consortium to $2 million. Defendant never filed a Rule 21 D motion to make more definite and certain. Defendant sought a jury instruction limiting consortium-loss damages to $1 million but plaintiff and another defendant asked to remove that $1 million-limit instruction and defendant did not object. The jury thus was not instructed on any limit to damages. The other defendant settled and only this defendant remained for the jury verdict, which was that this defendant was 35% at fault relative to the other settled defendant. The jury found $750K in medicals, $4 million for husband-plaintiff’s noneconomics, and $4 million for wife-plaintiff’s consortium loss. Defendant did not object to the amount of the verdict as exceeding the damages in the pleadings or for any other irregularity. Post-trial, plaintiff filed and was granted leave to amend under ORCP 23 B to conform to the evidence at trial, noting its “drafting error” between $1 million in the pleading and $2 million in the prayer. Although the court granted plaintiff’s post-verdict motion for leave to amend, plaintiff never filed an amended pleading.

Defendant moved to reduce the verdict to conform to the pleadings and evidence (reducing to $250k medicals and $1 million for consortium loss). The trial court granted the motion to limit medicals but denied the motion to limit consortium loss. The general judgment and money award reflects defendant’s 35% fault, with a total of $119,473 in medicals, $1.4 in noneconomics for husband, and $1.4 million in consortium loss for wife.

On appeal, defendant challenged the entry of the judgment under ORCP 67 C and due process. The court of appeals affirmed. The court did not entertain the constitutional argument because it is “undeveloped.” The court wrote that it has “repeatedly held that the prayer in a complaint provides notice to the opposing party as to the relief requested.” This is not a problem of a failure to pray for an amount of damages. It is an inconsistency between the alleged sum and prayed-for sum. The “figures on consortium damages were an obvious inconsistency that defendant could readily see and had many chances to remedy but did not.” “After defendant’s repeated failures to clarify or limit the consortium damages the prayer afforded defendant notice that its net exposure for damages on the consortium claim was [$2 million]. The judgment’s entry with a consortium award for [$1.4 million] does not violate Page 17 of 32 ORCP 67 C.”

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Substantive Civil Cases First Amendment; Defamation Hofer v OHSU, 319 Or App 603 (2022) Plaintiff sued OHSU alleging defamation and defamation per se against two of her doctors. She claimed that the doctors typed false statements about her into her medical record postvisit. OHSU is part of the state government. “Oregon recognizes the defenses of qualified privilege and absolute privilege to defamation actions.” This case involves only absolute privilege, an affirmative defense. “Absolute privilege generally applies in governmental settings to statements made by public officials in the course of their public duties.” Absolute immunity is a complete bar to liability for defamation. Absolute immunity in Oregon has been extended to state legislators in their legislative duties, to judges, jurors, attorneys, and witnesses in pleadings, open court, in litigation, and in judicial proceedings, to persons making statements to administrative bodies, to “inferior” and superior executive-branch officers including police officers in their official duties, to DHS supervisors, to a public-school theater technician making statements about a piano tuner being intoxicated at school. The trial court granted OHSU’s motions for summary judgment including its defense that her defamation claims are barred by the absolute privilege doctrine. Plaintiff “needed to” but did not introduce evidence that the physicians entered their medical notes outside the course of their official duties. One note contained an incorrect aspect but that does not raise an issue of fact about whether the physicians were engaging in their official duties when making the statements that are their medical notes. Held: Affirmed. The trial court did not err in granting summary judgment to OHSU. Veritas v Schmidt et al, 553 F Supp 3d 831 (D Or 2021) Plaintiffs engage in undercover journalism mainly through surreptitious recording. They brought this suit contending that Oregon’s recording statute, ORS 165.540 (amended in 2021; this case does not address the 2021 amendments), violates the First Amendment.

The court assessed the case under an intermediate level of scrutiny. The court concluded that ORS 165.540(1) is content-neutral as written, and its exceptions do not “transmorgrify” it into one that is content based, either.

(The three exceptions addressed are the felony that endangers human life exception, the public-meetings exception, and the law-enforcement exception.). Also, the statute provides a notice requirement, which is “a clear case of compelled speech incidental to valid regulation.” The court granted defendants’ motion to dismiss for failure to state a claim under FRCP 12(b)(6).

Nicita v Holladay et al, 2022 WL 1026729 (D Or 2022) Plaintiff, a pro se member of the Oregon State Bar, filed various claims against the mayor of Oregon City and others, including a claim for First Amendment retaliation due to Mayor Holladay’s vote to deny plaintiff a nearly $8,000 fee waiver that then was not waived after a council vote. Defendants moved to dismiss. The magistrate recommended dismissing the action with prejudice and denying plaintiff’s motion to amend. The district court adopted those conclusions except for the motion to dismiss plaintiff’s claim for First Amendment retaliation – the court allowed that claim to continue. “Put plainly, a First Amendment retaliation claim cannot fail as a matter of law merely because the allegedly retaliatory conduct was otherwise unlawful” under O’Brien v Welty, 818 F3d 920 (9th Cir 2016). “So, Plaintiff’s assorted challenges and grievances regarding various proposed City developments, including the challenge for which he was denied a fee waiver, were protected under the First Amendment.” Even if Mayor Holladay’s vote was lawful, “that lawfulness does not preclude Plaintiff’s retaliation claim.”

Abolish Abortion Oregon v City of Grants Pass, 2022 WL 873672 (D Or 2022) (bullhorning protesters not entitled to declaratory and injunctive relief on their facial and as-applied challenges to city’s sound ordinance or state disorderly-conduct statute) Cram v Service Employees Int’l Union, 2022 WL 742570 (D Or 2022) (union is not a state actor for section 1983 claim; union membership agreement did not violate the First Amendment) Page 19 of 32

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Total Real Estate Group, LLC v Strode, 2022 WL 633670 (D Or 2022) House Bill 2550, enacted by the state legislature, provides: “to help a seller avoid selecting a buyer based on the buyer’s race, color, religion, sex, sexual orientation . . . a seller’s agent shall reject any communication other than customary documents in a real estate transaction, including photographs, provided by a buyer.” The communications are letters from the potential buyer seeking to influence the seller. Plaintiff sought a preliminary injunction to bar enforcement of that new law on First Amendment commercial-speech grounds. Defendants Attorney General and the Oregon Real Estate Commissioner conceded the law is a content-based regulation. Assuming the new law regulates commercial speech, the law does not survive intermediate scrutiny applicable to commercial-speech restrictions under the four-part test in Central Hudson Gas & Electric Corp v Pub Serv Comm’n, 447 US 557 (1980). The parties agree the speech merits protection because it is neither misleading nor proposing illegality. The parties agree that the state has a substantial governmental interest in avoiding discrimination. The new law may reduce unlawful discrimination in housing. But the law falls on the fourth step: this speech restriction is more extensive than necessary to serve the interests that support it – the law is not adequately tailored and thus violates the First Amendment. One less restrictive alternative: “Requiring real estate agents to redact love letters” and “prohibiting photographs” that disclose race are “a more precise tool to address the government’s interest.” Held: preliminary injunction granted due to the loss of First Amendment rights of realtors and clients.

Koch v City of Portland et al, 2021 WL 6197031 (D Or 2021) Plaintiff was a Director for Portland’s Water Bureau.

She sued defendants for various claims, such as defamation, marital status discrimination, and a section 1983 claim. She contends, inter alia, that defendant(s): investigated her on a tip that her relative worked for a company supplying equipment without a competitive contract, reported something vaguely to the media, and made reports about her conduct to the Oregon Ethics Commission and the police.

Defendants moved to dismiss under FRCP 12(b)(6). The court dismissed her defamation claim. Defamation claims require a plaintiff to show: (1) defendant made a defamatory statement; (2) about plaintiff; and (3) it was published to a third party.

“In defense to an action for defamation, Oregon recognizes two forms of privilege: absolute and qualified. The defense of qualified privilege can be overcome if the alleged defamatory statements were made in bad faith or with malice. Absolute privilege, on the other hand, is a complete bar to a claim of defamation and precludes liability regardless of the defendant's state of the mind.” Absolute privilege is “practically limited to legislative and judicial proceedings and other acts of state, including . . . communications made in the discharge of a duty under express authority of law.” Oregon courts have applied the privilege “to governmental settings in which ‘the public's interest in the unhampered operation of the government, when exercising such functions, outweighs an individual's interest in the preservation of reputation.’” The court concluded that any statements defendant(s) made to the police and the Oregon Ethics Commission are absolutely privileged. The court concluded that any statements a defendant made to the media was absolutely privileged (although the defense had “failed to address” that issue).

Anti-SLAPP Conroy v Mewshaw, 2022 WL 501314 (D Or 2022) Defendants filed an anti-SLAPP motion to strike and a motion for summary judgment. The magistrate judge’s ruling, confirmed by the district judge, is that plaintiff should be allowed discovery before responding to defendant’s motion for summary judgment. And discovery must be allowed before the court decides defendants’ anti-SLAPP motion. Under Ninth Circuit precedent, “when an antiSLAPP motion to strike challenges the factual sufficiency of a claim, then the [FRCP] 56 standard will apply. But in such a case, discovery must be allowed, with opportunities to supplement evidence based on the factual challenges, before any decision is made by the court.” Because no discovery has occurred, the court cannot decide defendants’ anti-SLAPP motion yet.

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Chinese Consolidated Benevolent Society v Chin, 316 Or App 514 (2021). After a contested election at a nonprofit, the non-profit sued defendants, seeking a declaration regarding the outcome of the election and an injunction to prevent defendants from representing that they had been elected. Plaintiffs voluntarily dismissed the case after the trial court declined to grant preliminary injunctive relief, but not before defendants filed an anti-SLAPP motion. The court never ruled on the anti-SLAPP motion but defendants sought attorney fees under the anti-SLAPP statutes allowing for attorney fees to a party that prevails on an anti-SLAPP motion. The trial court denied fees, concluding that defendants had not prevailed on their motion. The court of appeals affirmed.

Where case is voluntarily dismissed before a trial court rules on an anti-SLAPP motion to dismiss, and where voluntary dismissal is not caused by anti-SLAPP motion, defendants are not entitled to recover attorney fees for "prevailing" on anti-SLAPP motion.

Tokarski v Wildfang, 313 Or App 19 (2021). Plaintiffs, members of an HOA, sued defendants, the HOA and its individual directors, alleging that they were misspending reserve funds on litigation, in violation of the restrictions placed on the use of reserve funds by the CC&Rs. They asserted multiple claims. Defendants filed an anti-SLAPP motion under ORS 31.150, contending that plaintiffs' suit targeted protected activity under ORS 31.150(2) and that plaintiffs would be unable to establish a prima facie case. The trial court denied the motion, concluding both that plaintiffs' suit did not involve protected activity under ORS 31.150(2) and that defendants had established a prima facie case. The court of appeals affirmed. It concluded that plaintiffs' suit arose out of conduct in furtherance of defendants' right to petition the courts because it targeted their funding of litigation and, thus, was subject to anti-SLAPP procedures under ORS 31.150(2)(d). Nevertheless, plaintiffs established a prima facie case that defendants were misspending reserve funds because the plain terms of the CC&Rs did not allow for the HOA to spend reserve funds on litigation, absent a vote of the HOA membership, something that had not happened in the case.

The court noted that the anti-SLAPP procedures in ORS 31.150 provide a mechanism for striking individual claims but defendants did not take a claim-by-claim approach. Under those circumstances, the court of appeals would not conduct a claim-by-claim analysis on behalf of defendants but, instead, would assess whether plaintiffs' prima facie case was sufficient to permit any of their claims to proceed, without examining whether their prima facie case was sufficient as to each of their claims. The court noted that the parties could engage in a more focused claim-by-claim analysis on remand on summary judgment or trial motions as appropriate.

Insurance coverage McNeil v Geico Casualty Company, Inc., 319 Or App 458 (2022) Papi, LLC v Cincinnati Insurance Company, 2021 WL 6932657 (D Or 2021), see COVID, post.

Moody v Oregon Community Credit Union, 317 Or App 233 (2022), see Negligence per se, post.

Silver Ridge Homeowners’ Association, Inc., 2022 WL 787937 (D Or 2022) Forbidden Fruit Ciderhouse v Ohio Security Insurance Company, 2022 WL 501323 (D Or 2022) Premier Automaton Contractors, Inc. v Everest Nat’l Ins Co., 2022 WL 884784 (D Or 2022) (construing ambiguous insurance contract term against insurer, awarding summary judgment for plaintiff which adequately provided notice, also separately, whether plaintiff assented to amending the insurance policy is a question of fact precluding summary judgment for insurer) Real Property Donahue v Nagel, 319 Or App 275 (2022) A promise to convey an interest in real property is subject to the statute of frauds.

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Oregon Trust Deed Act Clark v LSF9 Master Participation Trust, 2022 WL 900540 (D Or 2022) Claim and issue preclusion apply only in the context of successive litigation. A nonjudicial foreclosure by definition is not successive litigation. The Oregon Trust Deed Act specifically provides that a trustee may not initiate nonjudicial foreclosure proceedings unless “An action has not been commenced to recover the debt or any part of the debt then remaining secured by the trust deed, or , if an action has been commenced, the action has been dismissed.” ORS 86.752(7).

Nonjudicial foreclosures are intended “to provide a more cost-effective means of foreclosing liens on real property.” Although plaintiff in this case sought a declaratory judgment to stop a nonjudicial foreclosure sale of his home, the court granted defendant’s FRCP 12(b)(6) motion to dismiss.

Oregon Uniform Trade Secrets Act Opal Labs, Inc. v Sprinklr, Inc., 2021 WL 37113042 (D Or 2021) This is a case between two software companies.

The court held that the Oregon Uniform Trade Secrets Act supersedes plaintiff’s claim for tortious interference with economic relations, as that claim is alleged misappropriation of trade secrets. Summary judgment for defense granted on that claim. The court also held that plaintiff’s claim for fraud is not preempted by the Oregon Uniform Trade Secrets Act because the fraud claim is not dependent on trade secrets. There is “some overlap” on the trade-secrets and the fraud claims but summary judgment for defense is denied on plaintiff’s fraud claim.

Shareholder derivative claims Deep Photonics Corp. v LaChapelle, 368 Or 274 (2021) (shareholders in derivative action have right to jury trial) Limited Liability Company Act Phillips Sisson Industries, Inc. v Hysell, 317 Or App 440 (2022) In a bench trial for a case involving alleged fraudulent transfer and a “creditor’s bill,” the trial court sua sponte, during defense counsel’s opening statement, raised the question of ORS 63.229 (improper distribution). No party had raised that claim or law.

Defense counsel stated that he was also uncertain of the law and asked to provide more briefing. After plaintiffs rested, the court again raised ORS 63.299, plaintiffs asked to incorporate that theory into their pleadings, and defendant stated that this was not a distribution as defined in ORS 63.001(6), and asked again to provide supplemental briefing. Thereafter, the trial court ruled that the LLC’s repayment of defendant’s and his wife’s loan was an unlawful distribution and entered a judgment against defendant personally for $255k plus statutory interest. Apparently defendant made a motion for a “directed verdict” in that the loan repayments were not “distributions". The court of appeals concluded that the trial court erred in by concluding that note payments were unlawful distributions under ORS 63.229. The “note payments were not distributions as defined under the Oregon Limited Liability Company Act, and the trial court erred by instructing itself on that law.” But also defendant did not adequately develop an argument that the trial court had to “direct” a verdict for defendant on plaintiffs’ claims, so the court of appeals vacated and remanded.

Corporate veil-piercing Wetzel v Sandlow, 318 Or App 608 (2022) Class actions – ORCP 32 and FRCP 23 Stewart v Albertson’s, Inc. et al, 308 Or App 464 (2021) Store customers brought this class action against grocery stores for injunctive relief and damages, contending that the store violated the Unlawful Trade Practices Act (UTPA) and an OAR by inflating meat prices then selling meat as BOGO (buy one get one free). Defendants admitted to overpricing BOGO meat. Oregon has a “notice and cure” process under ORCP 32 H and I. Page 22 of 32

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Defendants proposed a cure, but calculated damages without statutory damages. The trial court decided that defendants’ proposed remedy was “appropriate” under ORCP 32 and granted defendants’ motion to dismiss the damages claims. The court of appeals concluded the trial court followed the correct procedure but erred by omitting statutory damages as “appropriate.” Interpreting ORCP 32 I is an issue of first impression.

“ORCP 31 I is about whether an action for damages can be maintained as a class action under ORCP 32 A and B.” The court concluded that the word “appropriate” in ORCP 32 I is used as in ORCP 32 “to describe a discretionary determination by the trial court that must be informed by a set of legal principles – specifically, those principles found in the substantive law that provide the contours of what types of relief provide justice for the alleged wrong.” The court concluded that class members are legally entitled to statutory damages for knowing or reckless violations of the UTPA, and the trial court erred in concluding that Safeway’s cure was “appropriate”. A trial court must make a series of determinations under ORCP 32 I. The pleadings allege the wrong and the substantive law describes the extent of available remedies. Then it must consider the defendant’s evidentiary showing and also resolve fact disputes in its remedy offered. Then the trial court must determine whether the defendant’s proposed “cure” is “appropriate compensation, correction, or remedy” under the substantive law.

“Plaintiffs still have the right to a jury trial on any individual claims for damages; they simply cannot bring damages claims on behalf of others if [a defendant] ha provided an appropriate cure under ORDCP 32 I. Potential class members also retain the right to pursue individual damages claims. Held: reversed and remanded.

Maney v State of Oregon, 2022 WL 986580 (D Or 2022) The court granted plaintiffs’ motion to certify proposed classes: adults incarcerated in Oregon, infected with COVID. Negligence; duty Hofer v OHSU, 319 Or App 603 (2022) Plaintiff sued OHSU alleging, inter alia, professional negligence against two of her doctors. She claimed that the doctors typed false statements about her into her medical record and she suffered psychological damage. No physical damage is alleged. OHSU moved for summary judgment which the trial court granted. The court of appeals affirmed. A physician-patient relationship can be the legal source of a duty to protect economic and emotional interests, but “a physician does not operate under a general duty to avoid any emotional harm that foreseeably might result from their conduct.” And neither HIPAA nor the similar state statutes provide a right of recovery for individuals. “Plaintiff does not demonstrate how the right to privacy” in medical records and the right to access and correct medical records “gives rise to liability” for psychological damage if a physician did not maintain accurate medical records.

Clark v University of Oregon, 319 Or App 712 (2022). Plaintiff, a basketball player, was invited to make an official visit to U of O while he was a junior college player who had had a previous knee surgery. The U of O coaching staff ran him through a workout that violated NCAA rules in a least several respects. During one of the drills, a coach bumped plaintiff, resulting in plaintiff tearing his ACL. Plaintiff sued the U of O and much of its coaching staff for negligence. The trial court granted summary judgment to defendants, accepting defendants' argument that plaintiff's injury was the product of the inherent risks of engaging in the sport of basketball, something that barred negligence liability as a matter of law. The court of appeals reversed. It explained that the proper legal question under Oregon law was whether defendants' conduct unreasonably created a foreseeable risk of harm to a protected interest of the kind that befell the plaintiff. Further, the summary judgment record would allow a reasonable juror to find that defendant had indeed unreasonably created that type of risk to plaintiff, when defendants, aware of plaintiff's prior surgery, had him engage in a workout that violated NCAA rules in several ways, including by involving coaches. The court allowed that where a defendant's conduct truly involved only ordinary participation in sports activity, perhaps summary judgment might be appropriate. It did not need to address the question, however, because defendants' conduct in contravention of Page 23 of 32

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NCAA rules presented "a different scenario than ordinary participation in sports activity."

Diamond Heating, Inc. v Clackamas County, 316 Or App 579 (2021), rev den, 369 Or 705 (2022) The court of appeals affirmed the trial court’s order dismissing plaintiff’s negligence claim under former ORCP 21 A(8), renumbered as ORCP 21 A(1)(h). Over three years after plaintiff hired a bookkeeper, plaintiff discovered that the bookkeeper had embezzled over $200,000 from plaintiff. Then plaintiff learned that the bookkeeper had had several prior criminal convictions for embezzlement, and a special condition of probation required the bookkeeper to inform any future employer of her crime and probation and she was barred from handling any employer’s money without her probation officer’s written consent. Defendants were responsible for the bookkeeper’s probation. Plaintiff sued them. The trial court dismissed the negligence claim under the “economic loss doctrine.” The court of appeals affirmed with one judge dissenting. Where purely economic loss is alleged, plaintiffs “must also allege facts sufficient to establish that the defendants owed a duty of care to the plaintiff beyond the common law duty of reasonable care.” The special conditions of probation did not establish that “necessary additional duty”.

Hanington v Multnomah County et al, 2022 WL 861266 (D Or 2022). Plaintiffs are family members who sued “a slew” of defendants after a sex offender committed suicide in jail. The family brought a section 1983 claim under the Fourteenth or Eighth Amendments (the court concluded after extensive research that it is a Fourteenth Amendment claim) and for common law negligence. The family alleged negligence based on a special status, relationship, or particular standard of conduct that defines defendant’s duty, per Fazzolari. “One of these relationships is that of inmates and their jailors.” The family contends that because the decedent was a sex offender, he was an increased risk of suicide, and the jail policy weighs an individual’s sex offender status in the totality of the circumstances. On defendants’ motion for summary judgment, the court concluded that the policy itself is not negligent. But a nurse admitted that she had not considered his criminal history when assessing his suicide risk. By not doing that, the nurse “breached her duty to provide an accurate suicide risk assessment pursuant to County policies.” And it is “foreseeable that such a breach would cause” the nurse to fail to recommend him for suicide watch and “it is foreseeable” that the decedent would not have committed suicide if he had been on suicide watch. Thus the claim against the nurse survives. The other negligence claims are inadequate and/or immunity applies and/or causal links are not alleged or inferable or policies are reasonable.

Negligence; causation Haas v Carter, 316 Or App 75 (2021), rev allowed, 369 Or 675 (2022) Defendant-driver low-speed rear-ended plaintiffs’ car. Both plaintiffs had underlying medical conditions (Mr. Haas had degenerative spine symptoms consistent with his age plus prior auto accidents and Mrs. Haas had multiple prior spine surgeries with hardware implants and her surgeon testified that her spine was “a mess” before this injury, such that “even a sneeze could have made her symptomatic”). Both plaintiffs had spine surgeries after this accident. Plaintiffs sued defendant driver and also their insurer, State Farm, for PIP benefits. Plaintiffs sought jury instructions for “but for” and “substantial factor” causation. The trial court gave the “but for” causation instruction (UCJI 23.01), not the “substantial factor” causation instruction (UCJI 23.02). The trial court also gave the uniform “previous infirm condition” instruction (UCJI 70.06; on damages not on causation) and the “aggravation” instruction. The jury returned a defense verdict. Plaintiffs’ pre-existing infirm conditions did not entitle them to substantial-factor jury instruction. The but-for instruction was correctly given.

Negligence; reasonableness Rae v Webb and Jose, 2021 WL 3134907 (D Or 2021) and 2021 WL 3134924 (D Or 2021) This is a motor vehicle accident involving an emergency situation. Plaintiff was driving behind Webb in a two-lane roadway. Plaintiff passed on Webb’s left, and then was traveling in the oncoming lane, where Jose was travelling head-on. Jose Page 24 of 32

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swerved to avoid plaintiff but they collided. Injuries resulted. Here, summary judgment granted for defendant Jose because there is no evidence of >50% negligence by defendant Jose. Plaintiff’s theories are failure to maintain proper lookout and failure to stop, slow, or otherwise control the vehicle. “The standard of reasonable care remains the same even in emergency circumstances.” A “person is not required to make the best decision, though negligent conduct is not excused solely because it occurred in an emergency.” “Foreseeability is forward-looking and considers whether the harm could have been foreseen. . . . This analysis is distinct from the backward-looking consideration of what was seen or what did happen.” Here there is no allegation that Jose violated any traffic laws or took his attention off the road. The parties agree Jose tried to avoid plaintiff upon seeing her coming toward him in his lane. There is no evidence that what Jose did was unreasonable. There must be facts to support the “lookout” allegation. None are here. As to the second claim – failure to stop, slow, or control the vehicle – plaintiff’s expert theorizes that if Jose had braked more aggressively he could have slowed or stopped to allow plaintiff to maneuver out of Jose’s lane. The court footnoted that the expert’s affidavit raises Daubert admissibility issues, but did not need to determine the expert’s report’s admissibility. “A driver’s normally unreasonable action may be reasonable if those actions were in response to a sudden emergency.” When reasonable minds could differ on the causal connection between negligence charged and the accident. Here, the expert presents no evidence to show that Jose acted unreasonably but opines that Jose might have acted differently. “Jose’s conduct falls outside a reasonable conception of fault.” Summary judgment granted on all counts against defendant Jose.

Negligence per se Moody v Oregon Community Credit Union, 317 Or App 233 (2022) Plaintiff’s husband was accidentally shot and killed while camping with a friend; he had marijuana in his system. Defendant and plaintiff had an insurance policy to provide $3000 to plaintiff for accidental loss of life. Defendant refused to pay the $3000 policy because husband had marijuana in his system. Plaintiff sued alleging: breach of contract, negligence per se for failing to conduct a reasonable investigation, and defendant’s failure to settle in good faith, all in breach of ORS 746.230(1). Plaintiff sought $3000 plus emotional distress damages of $47,001. Defendant moved to dismiss the negligence per se claim, contending that (1) Oregon does not have tort claims for breach of contract and (2) the emotional distress damages should be stricken. The trial court granted those motions. Defendant then paid the $3000.

The court of appeals reversed and remanded. Ordinarily the remedy for breach of contract (including breach of insurance contract) is a breach of contract claim. But a party to a contract may sue another party to the contract for negligence, when there is an independent standard of care, such as a statute, which has four elements to state a claim for negligence per se. Here, ORS 746.230(1) indisputably applies to defendant and provides that independent standard of care: an insurer may not perform unfair claim settlement practices that include failure to conduct a reasonable investigation and failure to settle in good faith. Defendant has now paid the $3000. The court noted that the emotional distress that plaintiff alleges is the sort of harm that the statute was intended to prevent. The “question is whether the type of harm that plaintiff suffered is the type of harm that the legislature wanted the statute to prevent.” An “elementary principle of insurance law is that insurance policies do not merely provide for the payment of funds in case of loss; they also provide the policyholder peace of mind.” “The idea that one of the principal benefits of insurance is peace of mind is well-nigh universally recognized in the case law around the country.” The court of appeals reviewed the statutory words and concluded: “Violations of those provisions certainly have economic consequences. But it cannot be denied that such violations commonly have significant emotional consequences for policyholders as well. . . . [I]t is hard to imagine that the legislature did not intend the law, at least in part, to prevent policyholders from being forced to experience the stress of dealing with unfair insurance claim settlement practices.” The trial court erred in dismissing plaintiff’s negligence per se claim and in striking her allegation of emotional distress damages.

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Oregon Racketeer Influenced and Corrupt Organizations Act Willms v AmeriTitle, Inc., 314 Or App 687 (2021) (trial court did not err in denying defendant’s motion for directed verdict because multiple incidents of racketeering can be a “pattern” under ORS 166.715(4) even if they occurred within one escrow transaction damaging two victims) Misrepresentation; Fraud Neel v Lee, 316 Or App 159 (2021) The trial court erred by granting summary judgment to defendants under the Elderly Persons and Persons with Disabilities Abuse Prevention Act in ORS chapter 124. “Wrongful” taking or appropriating money includes affirmative misrepresentation, active concealment, and nondisclosure. Silence or concealment of facts may be misrepresentation “particularly when there is a duty to speak” and “a duty to speak or disclose exists when there is a special relationship between the plaintiff and the defendant. [] That need not always be the case where unique circumstances impose a relationship of trust.” Under EPPDAPA, “wrongful conduct is not limited to those with a fiduciary relationship.” Here, a jury could find that defendant “had assumed a role and undertaken a duty to disclose material changes that would disadvantage plaintiff in the transaction”.

MAT, Inc. v American Tower Asset Sub, LLC, 312 Or App 7 (2021) Plaintiff owns farmland on which defendants own and maintain a 900-foot tall television tower under a lease agreement with plaintiff providing half of subtenant revenue to plaintiff. After numerous attempts to obtain information, plaintiff discovered that defendants were not disclosing all subtenants or sharing revenue with plaintiff. Plaintiff sued for breach of contract, and because the statute of limitations for contract breach is six years, plaintiff argued that defendants fraudulently concealed the breach, thereby tolling the time limitation. At the close of plaintiff’s case, defendants moved for a directed verdict, which the trial court denied. The jury concluded that defendants fraudulently concealed the breach and returned a verdict for plaintiff for over $650,000 including prejudgment interest.

The court of appeals affirmed the denial of directed verdict: The “record supports a finding of active concealment with an intent to deceive” and thus there is no need to decide whether the parties’ relationship gave rise to a duty to disclose. “Active concealment with an intent to deceive may be inferred from half-truths: ‘Fraud may be predicated upon an equivocal, evasive or misleading answer calculated to convey a false impression even though it may be literally true’.” Here, defendants began collecting subtenant rent from a person for over six years before disclosing that to plaintiff, despite plaintiff having repeatedly requested that defendants provide the list of subtenants, and defendants refusing to respond then sending a demand that plaintiff release them from all claims to get a partial rent payment. Also, the evidence is sufficient for the jury to conclude that plaintiff could have discovered the breach with due diligence. And the jury’s finding that defendants fraudulently induced plaintiff to sign the release is supported by evidence. Further, these two jury instructions are correct statements of the law and did not need to include any special-relationship findings: First: “A person who makes a representation in the nature of a half-truth assumes the affirmative obligation to make a full and fair disclosure of the whole truth. The failure to make a full and fair disclosure of the whole truth may be a false representation.” Second: “A person may make a false representation of a material matter by concealing the truth. A false representation by concealment occurs when a person, by any word or act, conceals a material matter either by creating a false impression covering up the truth, or by removing an opportunity that might otherwise have led to the discovery of truth.”

The court of appeals vacated, however, on one issue: Defendants had asked the trial court to conduct in camera review of a privilege log to find unprivileged evidence. The trial court did not do so, instead it relied on plaintiff’s assessment of its log. The trial court erred by relying on plaintiff’s representation that there were no documents related to plaintiff’s knowledge of undisclosed subtenants. “In determining whether to conduct an Page 26 of 32

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in camera review of material that might contain admissible information along with privileged information, the trial court must engage in a two-step process. First, the court must determine whether the party seeking the review has produced evidence sufficient to support a reasonable belief that in camera review might yield relevant unprivileged evidence.” If yes, then the court must consider “the facts and circumstances of the particular case, the volume of materials at issue, the relative importance of information sought, and whether such information might be available from non-privileged sources.” Here, defendants did make the first threshold showing. An "opposing party’s representation is insufficient to defeat a prima facie showing that it is reasonable to believe that review might yield material unprivileged evidence.” Vacated and remanded. If on remand the trial court weighs the factors and declines an in camera review, or if it reviews and concludes that the privileged documents contain no material evidence, defendants are not entitled to a new trial. If on remand the trial court conducts review and discovers material evidence that plaintiff knew of should have known of subtenant’s revenue, then defendants are entitled to a new trial.

Unigestion Holdings, S.A. v UPM Technology, Inc. 2022 WL 161491 (D Or 2022) Plaintiff, a telecommunicationsservices provider in Haiti, sued defendants for fraud and other claims, alleging that defendant-reseller defrauded plaintiff by charging lower rates on international calls. Defendant bulk-purchased plaintiff’s SIM cards and created a “bypass” so that international calls looked like local calls to plaintiff. Defendants admit that but contend it’s not fraud. Defendant also registered some purchased SIM cards and discounted them in a manner that resulted in lower charges. Defendants admit that but contend it is not fraud. Defendants counterclaimed. Cross-motions for summary judgment were filed. Citing MAT, Inc. v American Tower Asset Sub, LLC, 312 Or App 7 (2021) and Neel v Lee, 316 Or App 159 (2021) and other cases, the court noted legal principles. A plaintiff must prove fraud by clear and convincing evidence but damages need be proven only by a preponderance.

“In Oregon, a plaintiff may show fraud by affirmative misrepresentation, omission, or actual or active concealment.” Fraud by affirmative misrepresentation requires plaintiff to show: (1) a representation; (2) its falsity; (3) its materiality; (4) speaker’s knowledge of its falsity or ignorance of its truth; (5) speaker’s intent that it should be acted on in the reasonably manner contemplated; and (6) the hearer’s ignorance of its falsity; the hearer’s reliance on its truth; (8) the hearer’s right to rely thereon; and (9) the hearer’s consequent and proximate injury. Fraud by omission, silence, or nondisclosure requires plaintiff to show defendant either defendant remained silent when he had a duty to speak (a duty to speak or disclose exists when there is a special relationship between a plaintiff and defendant) or assumed the obligation to make a full and fair disclosure of the whole truth by making a representation in the nature of a half-truth. Fraud by actual concealment does not require a duty to speak.

On the motions for summary judgment: “the Court may consider evidence submitted in an inadmissible form, so long as the underlying evidence could be provided in an admissible form at trial, such as by live testimony.”

Here, plaintiff did not show that defendant made any affirmative misrepresentations, or any representations, to plaintiff. The court granted summary judgment to defendant on the “affirmative misrepresentation” claim. As to plaintiff’s fraud claim, based on silence/nondisclosure of material fact, the court granted summary judgment to defendant because there is no showing that defendant had a duty to speak or “that there was the requisite unique business transaction” between the parties such that plaintiff “would reasonably expect disclosure of the alleged omitted facts.” However, as to plaintiff’s fraud claim based on active concealment, plaintiff has shown a dispute. Defendant’s “use of human behavior software is a deceptive act or contrivance intended to hide information, mislead, avoid suspicion, or prevent further inquiry into a material matter. It also creates a false impression covering up the truth and makes the discovery of a material fact more difficult.”

Gillett v Tucker, 317 Or App 570 (2022) The trial court erred in concluding that there was sufficient evidence of plaintiffs’ claim for “fraud in the inducement” because as a matter of law, defendants’ statements to plaintiffs Page 27 of 32

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were not actionable misrepresentations but instead were opinions. Generally, “statements of opinion are not actionable, even though false.” But “expressions of opinion may be considered misrepresentations of fact where the parties are on unequal footing and do not have equal knowledge or means of knowledge.” Here, defendants’ statements were opinion because there was no “foregone conclusion” as to the statements’ validity. Also, the parties did not have “unequal means of knowledge” on the issue, instead, “plaintiffs simply failed to inquire as to those points.”

Opal Labs, Inc. v Sprinklr, Inc., 2021 WL 37113042 (D Or 2021) This is a case between two software companies.

The court held that the Oregon Uniform Trade Secrets Act supersedes plaintiff’s claim for tortious interference with economic relations, as that claim is alleged misappropriation of trade secrets. Summary judgment for defense granted on that claim. The court also held that plaintiff’s claim for fraud is not preempted by the OUTSA because the fraud claim is not dependent on trade secrets. There is “some overlap” on the trade-secrets and the fraud claims but summary judgment for defense is denied on plaintiff’s fraud claim.

Contract and Unjust Enrichment Opal Labs Inc. v Sprinklr, Inc., 2021 WL 3713042 (D Or 2021) Plaintiff alleged claims for both breach of contract and breach of the implied covenant of good faith and fair dealing. Defense moved to dismiss [or for summary judgment on] the implied good-faith claim, alleging that claim is duplicative of the contract claim. The duty of good faith is a contract term implied by law into every contract in Oregon, unless it is inconsistent with express terms of the same contract. Here, the implied good-faith claim is not dismissed. A plaintiff can succeed on one or both claims based on the same facts. This is not a case where the implied good-faith claim is necessarily duplicative of claims based on express terms. If plaintiff is unsuccessful on express-term claims, plaintiff may still succeed on the implied good-faith claims.

Moyer v Columbia State Bank et al, 316 Or App 393 (2021) Plaintiffs brought negligence and breach of contract claims in an estate planning case. Defendants moved to dismiss under former ORCP 21 A(8). The trial court granted the motions to dismiss. The court of appeals affirmed some dismissals, after reciting the basics of contract and other claims. Plaintiff’s allegations of the existence of a contract (through offer, acceptance, and consideration (consideration is some right, interest, profit, or benefit, or some forbearance, detriment, loss, or responsibility given, suffered, or undertaken by the other)), the relevant contract terms, plaintiff’s full performance and lack of breach, and defendant-bank’s breach resulting in damage to plaintiff are sufficient for former ORCP 21 A(8), renumbered as ORCP 21 A(1)(h). A claim will survive a motion to dismiss if the complaint contains even vague allegations of all material facts. But plaintiffs did not allege any bargained-for consideration against a law-firm defendant, and the court cannot reasonably infer bargained-for consideration because the complaint contradicts such an inference as the law firm was already retained, thus that claim is dismissed.

Gillett v Tucker, 317 Or App 570 (2022) The trial court erred by determining that plaintiffs could prevail on their claim for unjust enrichment” because a valid contract displaces the unjust enrichment theory, see Restatement (Third) of Restitution and Unjust Enrichment (2011) and prior cases.

County of Linn v State of Oregon, 319 Or App 288 (2022) A jury awarded one billion dollars against the state on breach of statutory contract theory. Before trial, the trial court certified a class and denied defendant’s “motion to dismiss on the ground that the Act [in ORS chapter 530] did not create a contractual obligation [by the state] to manage the forestlands … to maximize revenue.” The trial court erred in denying defendants’ motion to dismiss. The court of appeals addressed how to analyze “statutory contracts” that includes “a canon of Page 28 of 32

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construction that disfavors interpreting statutes as contractual promises.” A statue is a contractual promise “only if the legislature has clearly and unmistakably expressed its intent to create a contract.” The statute at issue dates from 1941, providing that the Board of Forestry “shall manage the lands acquired pursuant to this act so as to secure the greatest permanent value of such lands to the state ….” The trial court erroneously decided that the meaning of the phrase “greatest permanent value” was a question of fact for the jury to decide. The meaning of a statute, however, is for the court, as a matter of law. And “the ad hoc, case-by-case interpretation of statutes – possibly resulting in the same statutory term being construed to mean different things in different cases – would run afoul of constitutional obligations of equal treatment.” The court of appeals interpreted parts of the law to be “an intent to delegate authority to the Board, rather than extend a contractual offer to the counties.” Also the “greatest permanent value … falls short of the clear an unambiguous standard plaintiffs are required to meet to turn a statutory obligation into a contractual promise because the legislature chose ‘value to the state’ as the point of reference, rather than ‘value to the counties.’” And there is an absence of legislative history. “[W]e hold that the management standard in [the statute from 1941] was not part of a contractual offer to the counties.”

Third-party beneficiaries; trusts and estates Moyer v Columbia State Bank, 316 Or App 393 (2021) Borough v Caldwell et al, 314 Or App 48 (2021), 314 Or App 62 (2021), under Summary Judgment Discrimination Claims Age: Dalbeck v Bi-Mart Corp., 315 Or App 129 (2021) Defendant refused to sell 18-year old plaintiff a firearm because plaintiff was not at least 21 years old, and defendant sells guns only to people 21 and older. That refusal violated ORS 659A.403, an age-discrimination statute. “If there is to be an exception to the prohibition on age discrimination contained in ORS 659A.403, it must come from the legislature itself, not from the courts.”

School: Hood River County School District v Student, 2022 WL 1153986 (D Or 2022) (attorney fees) Housing: Macon v Proud Ground Organization, 2021 WL 3354157 (D Or 2021) Unlawful Employment: Zweizig v Rote, 368 Or 79 (2021) Employment discrimination litigant has right to jury’s verdict, uncapped.

Jacobe v Specialty Polymers, Inc., 2021 WL 3625051 (D Or 2021) Persons other than employer and employee can be held responsible for aiding and abetting unlawful employment acts under ORS 659A.030(1)(g). “This court finds [Hernandez v Catholic Health Services, 311 Or App 70 (2021)] as convincing as it is thorough. Even if not bound by Hernandez, this court would adopt its reasoning and holding in full and agree that ORS 659A.030(1)(g) applies to ‘any person’ . . . whether an employer or employee, or not.”

Charlton v Ed Staub and Sons Petroleum, Inc. and Quicksilver Contracting Company, 312 Or App 522 (2021) Plaintiff worked for Ed Staub and Sons as a fuel truck driver. Defendant Quicksilver is one of defendant Ed Staub’s customers. Plaintiff saw an emaciated dog at Quicksilver’s lot and said he’d report it to the sheriff then kept trucking on. Ed Staub fired him for “poor customer service” related to the emaciated-dog report. Plaintiff brought claims under ORS chapter 659A against his former employer, Ed Staub and Sons, alleging he was terminated in retaliation for reporting animal abuse. Plaintiff also named defendant Quicksilver for aiding and abetting the retaliation. Defendant Quicksilver moved to dismiss under former ORCP 21 A(8), renumbered as ORCP 21 A(1)(h), which the trial court granted. The court of appeals reversed: Under Hernandez v Catholic Health Initiatives, 311 Or App 70 (2021), aid and abet liability is not limited to plaintiff’s employer.

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OR-OSHA v United Parcel Service, Inc., 312 Or App 424 (2021) This case discusses the history of federal and state workplace safety standards rules and how to interpret a federal rule incorporated into OARs. OR-OSHA cited an employer for a violation, the employer sought a contested hearing, and the ALJ vacated OR-OSHA’s citation. The court of appeals reversed and remanded, agreeing with OR-OSHA’s citation.

Taylor v Schwan’s Consumer Brands, Inc., 2022 WL 888303 (D Or 2022); 2022 WL 891826 (D Or 2022) Plaintiff had a stroke at work and his employer fired him. He sued for disability discrimination, failure to engage in a process and to provide reasonable accommodation, and retaliation for invoking OFLA and deprivation of equal employment opportunities. Defendant moved to dismiss under FRCP 12(b)(6) and moved to make more definite and certain under FRCP 12(e) and to strike under FRCP 12(f). The court denied defendant’s motion to dismiss.

The magistrate judge denied all motions and the district court adopted the findings and recommendations.

Marital Status: Koch v City of Portland, 2021 WL 6197031 (D Or 2021) A tipster accused plaintiff, a government worker, of improperly awarding contracts to a relative. She alleged marital-status discrimination and other claims. The court held that plaintiff failed to state a claim for relief under marital-status discrimination statutes.

She “alleged no facts suggesting that any Defendant was hostile to her status as a heterosexual, married woman.” And even if she had been investigated because of her marital status, she did not allege any adverse employment action; she pleaded only that questions about her ethics made it more difficult to properly run her department and her ability to work diminished. Defendant’s FRCP 12(b)(6) motion to dismiss was granted and plaintiff’s case was dismissed with prejudice.

Religion and Sexual Orientation: Klein v Oregon Bureau of Labor and Industries, 317 Or App 138 (2022) Samesex couple wanted to buy a wedding cake from bakers, but bakers don’t make wedding cakes for same-sex couples. A bride’s mother, Cheryl, engaged with baker Aaron about Cheryl’s own recently changed religious perspective on gay marriage. After Aaron declined to make a wedding cake for Cheryl’s daughter, Cheryl told Aaron she changed her mind about marriage when God gave her two gay children, and Aaron responded by quoting Leviticus 18:22 to Cheryl: “You shall not lie with a male as one lies with a female; it is an abomination.”

BOLI investigated and charged the bakers under ORS 659A.403, .406, and .409, for sexual-orientation discrimination in a place of public accommodation. After a hearing, an ALJ awarded $135k for the wedding couple against the bakers, and the BOLI commissioner largely adopted the ALJ’s order. This case went to the Oregon Court of Appeals, the Oregon Supreme Court, and the United States Supreme Court, which granted cert and remanded under Masterpiece Cakeshop, Ltd. V Colorado Civil Rights Comm’n, 138 S Ct 1719 (2018). This case now is on remand from the US Supreme Court, 139 S Ct 2712 (2019).

The court of appeals noted that BOLI did not engage with or even recognize baker Aaron’s right to express his own belief during his conversation about religion with bride’s mother, Cheryl. The court of appeals held that the damages portion of BOLI’s award, based on baker Aaron Klein saying the word “abomination” to a mother of the bride about her grandchildren, is reversed and remanded because it “did not comport with the First Amendment’s requirement of strict neutrality toward religion” under Masterpiece Cakeshop.

The Kleins did not develop an analysis under Article I, sections 2 or 3, of the Oregon Constitution at any time.

“By omitting to develop state constitutional analysis in presenting their claims . . ., the Kleins overlooked Oregon’s longstanding and preferred approach to constitutional questions, under which claims are to be addressed under the state constitution before they are addressed under the federal constitution.” In short, “the damages portion of the case had the same or similar hallmarks of non-neutrality that caused the Supreme Court to set aside” Masterpiece Cakeshop. Reversed and remanded to BOLI on damages and reversed on BOLI’s conclusion that the bakers violated ORS 659A.409, otherwise affirmed.

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Landlord-Tenant Thomas v Dillon Family Limited Partnership II, 319 Or App 429 (2022) Plaintiff-tenant slipped and fell in water from a leaky refrigerator in her unit and sued defendant-landlord for failing to maintain the premises in a habitable condition, ORS 90.320. Landlord had asserted comparative fault as an affirmative defense, ORS 31.

600. Tenant moved to strike under ORCP 21 E(2). The trial court granted that motion. Landlord sought jury instructions on comparative fault. The trial court declined to give such jury instructions. Tenant moved to limit landlord from offering evidence or argument on tenant’s fault or negligence as it was not relevant to liability.

The trial court granted that motion. Jury verdict for tenant, both economic and noneconomic damages. All three rulings are reviewed for legal error. Affirmed. The Oregon Residential Landlord and Tenant Act (ORLTA) does not contain a comparative-fault defense.

Bunch v Lowry, 313 Or App 398 (2021) Defendants had filed an action against plaintiffs for quiet title, adverse possession, and an equitable mortgage on the same property. Plaintiffs as tenants then filed this FED action.

The trial court erred in granting defendant’s motion to dismiss under former ORCP 21 A(3), renumbered as ORCP 21 A(1)(c) (another action pending) on the FED case. The two cases are not the same cause. The FED involves tenants’ right to possession under ORS chapter 105. That is different than an action involving title. The “proper remedy” for overlapping claims “would have been an appropriately crafted stay of the FED action rather than dismissal,” see ORS 105.140.

Birchall v Miller, 314 Or App 521 (2021) In this FED action, the trial court erred in denying the defendanttenant’s motion to dismiss the case as moot, after her vacated the premises. The tenant vacated the premises and moved for summary judgment, which the trial court denied. Ten months after tenant had vacated, tenant moved to dismiss the case as moot. No party cited Nordbye v BRCP/GM Ellington, 271 Or App 168 (2015) but it answers the issue, the court of appeals wrote. The only remedy in FED is possession of the premises. As to fees, the court of appeals concluded that an otherwise moot case is not kept un-moot “simply for the purpose of awarding prevailing-party fees.” FED case is moot. The trial court erred.

Wells Fargo Bank, N.A. v Michelotti, 315 Or App 489 (2021) This is an FED case about a judgment entered seven years after a trial court’s letter opinion on an FED. The defendant had defaulted on her loan on real property, and the property went through a nonjudicial foreclosure. Then the plaintiff-bank initiated this FED action seeking possession based on a trustee’s deed. The trial court issued a letter opinion concluding that the defendant prevailed in the FED case, and ordered her to submit a judgment, but she failed to submit the judgment. Years later, the plaintiff-bank filed for a judicial foreclosure (which is not the subject of this appeal) But in the judicial foreclosure, plaintiff presented a judgment in this FED action. The plaintiff-bank objected as the judgment on this FED is long moot, as it deals with possession. The trial judge entered the judgment anyway. The court of appeals reversed: The FED action is moot and consequently “a judgment on the merits cannot be entered simply to establish prevailing-party status. That is true regardless of whether the court had previously issued a letter opinion.” Judgment of possession vacated.

Debt Collection – mailbox rule Kounalis v Credit Associates, Inc., 2022 WL 860939 (D Or 2022) Plaintiff sued defendant for a violation of the Fair Debt Collection Practices Act. Defendant moved for summary judgment, which the court granted under the “mailbox rule.” Plaintiff had several delinquent accounts, defendant sent her six letters, which it produced. The court noted: “A consumer with a basic level of understanding and a willingness to read with care would have understood” the distinction in the letters between the balance due and the amount due on all accounts.

Plaintiff states she does not remember receiving some of the letters. Defendant offered a sworn declaration that each of the six letters was mailed to the same address on the date shown on the letters. Under the mailbox rule, mailing of a document raises a rebuttable presumption that the document was received by the addressee.

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To overcome that presumption, under the FDCPA, a debtor must prove by clear and convincing evidence that the mailing was not accomplished. A person’s statement that they did not receive the letter is not sufficient to create a triable issue of fact as to mailing.

COVID • Mask mandates for schoolchildren: Gunter v North Wasco Co School Dist, 2021 WL 6063672 (D Or 2021) • Business loss insurance policies: Fortuna Cannery, 2022 WL 658710 (D Or 2022) and Papi, LLC v The Cincinnati Ins. Co., 2021 WL 6932657 (D Or 2021) and 2022 WL 475910 (D Or 2022) • Rent moratoria: Farhoud v Brown, 2022 WL 326092 (D Or 2022) • Collections moratoria: Oregon Bankers Association v State of Oregon, 2022 WL 488071 (D Or 2022) • Business shutdowns: Graham and Glamour!, LLC v Brown, 2021 WL 5149700 (D Or 2021) The court concluded that this case is moot. No procedural due process claim when executive orders shut down businesses and no fines or penalties issued. No substantive due process claim because right to pursue work is not a fundamental right and under rational basis review, state conduct presumed valid and is upheld as rationally related due to pandemic. No equal protection claim because no suspect class, and rational basis review is similar to substantive due process claim. No equal privileges and immunities violation because no invidious social category (that is, hair care providers in long-term care not shut down vs. hair care providers generally shut down) because that class created by executive order.

• Educational malpractice and breach of contract and unjust enrichment: Pranger v Oregon State University et al, 2002 WL 214629 (D Or 2022) Plaintiffs are OSU students who lost access to most on-campus services and facilities when OSU moved classes to remote, online formats during COVID. They sued OSU and trustees. Their claims at issue are: breach of express contract against OSU; breach of implied contract against OSU, and unjust enrichment against all defendants. Defendants moved to dismiss under FRCP 12(b)(6) on three bases: the “educational malpractice doctrine” bars the claims; failure to state claims for breach of express or implied contract; and sovereign immunity bars the unjust enrichment claim against OSU and trustees. The court concluded that the “educational malpractice doctrine” does not bar plaintiffs’ claims, plaintiffs sufficiently pled facts alleging valid breach of contract claims against OSU, and sovereign immunity from unjust enrichment claims protects OSU and trustees allowing from dismissal of that claim. The court noted: “The question presented at this stage in the proceedings is not whether OSU’s decision to shift to an online learning environment was reasonable or justified. For the purpose of this Motion to Dismiss, the relevant question was whether Plaintiffs have sufficiently alleged facts in their complaint that, when accepted as true and all reasonable inferences are drawn in their favor, support their underlying legal claims.”

• Class certification for Adults in Custody who tested positive for or who died during COVID period specified: Maney v State of Oregon, 2022 WL 986580 (D Or 2022) The court granted plaintiffs’ motion to certify proposed classes involving adults incarcerated in Oregon during a certain time frame who were infected with COVID. Among other rulings, the court agreed with defendants that, under the Seventh Amendment to the United States Constitution, punitive damages and liability are so intertwined in this case that a jury considering one must consider the other. Holding this case before a single jury ensures compliance with the Seventh Amendment’s bar on reexamination. The Seventh Amendment is not a bar to class certification here.

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2022 OADC ANNUAL CONVENTION CLE MATERIALS Trial by COVID: Factors to Consider in Civil Litigation Lori Sicafuse, Courtroom Sciences, Inc. June 18, 2022 10:45 – 11:45 am Sunriver Resort

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Lorie L. Sicafuse, Ph.D. Dr. Sicafuse is a Litigation Consultant at Courtroom Sciences, Inc. Her grant-funded doctoral research examined civil jurors’ perceptions of witnesses, susceptibility to bias, and attributions of blame. Dr. Sicafuse has authored over 30 publications appearing in

peer-reviewed academic journals, law reviews, and edited volumes. She applies her extensive knowledge of psycho-legal research, rigorous methodological and statistical

training, and analytical skills to maximize favorable outcomes for civil defendants

nationwide. Trained as a Social Psychologist with an emphasis on legal and group decision-making, Dr. Sicafuse serves as a trusted advisor to her clients in bridging the gap between psychology and law.

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3 Keys to Gaining the Jury’s Trust:

Turning Post-Pandemic Declines in Corporate Perceptions into a Tactical Advantage

By: Lorie Sicafuse, Ph.D. and Carol Jarzyna, Ph.D.

Critical Communications

Records & Depositions

4950 North O’Connor Road, Suite 100, Irving, TX 75062-2778

Litigation Psychology Phone 972.717.1773

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Toll Free 800.514.5879

Trial Consulting courtroomsciences.com

3 Keys to Gaining the Jury’s Trust: Turning Post-Pandemic Declines in Corporate Perceptions into a Tactical Advantage

INTRODUCTION In early 2021, Courtroom Sciences Consultants published the results of research conducted throughout the second half of 2020 that revealed positive shifts in perceptions of several industries among jury-eligible participants in the U.S.i Research participants were most likely to report a positive shift in perceptions of the healthcare industries and healthcare professionals.

The Coronavirus pandemic led to an increase in favorable perceptions of many other industries and/or companies as well, including trucking and transportation, railroads, large grocery stores, the retail industry, and small businesses.

Recent survey research suggests that the window of opportunity for capitalizing on COVID-related attitude changes towards certain groups of civil defendants has closed. Jurors’ perceptions of most industries and institutions have either returned to pre-COVID baselines or dipped below pre-COVID baselines. This decrease in public sentiment regarding specific industries, institutions, and large corporations may seem discouraging. However, there are many opportunities available to defense teams who wish to out-prepare plaintiff’s counsel and turn pandemic-related changes into strategic advantages.

PERCEPTIONS OF CORPORATIONS AND MAJOR INDUSTRIES ARE LESS FAVORABLE Heading into 2022, corporations faced the challenge of decreased favorability among the voting public in practically every major industry.ii Positivity ratings for industries like healthcare, oil, utilities, and the internet have tumbled the most, while moderate declines occurred in the retail, farming, grocery, airline, and media sectors. For instance, favorability ratings of the healthcare industry plummeted 15 percentage points from highs seen during the onset of COVID-19, and the retail industry fared almost as poorly. Even the industries that fared best experienced a modest reduction in positivity ratings, with automobile, banking, and real estate businesses seeing a dip in regard.

Voters’ ideas about taxes and inflation reflected these anti-corporate feelings. Fifty-six percent supported raising the corporate tax rate by five percentage points, and 58% backed similar increases on taxes that U.S. companies pay on foreign profits.iii While a greater majority (59%) faulted President Joe Biden for inflation being at a 40-year high, a similar percentage blamed the climb on companies. Specifically, fifty-four percent of voters saw inflation as resulting from a lack of market competition.iv A variety of explanations for the recent surge in anti-corporate sentiment are possible. Perhaps distrust in other institutions is inching over into corporate distrust. Additionally, it may be that people are angry and stressed by continuing COVID-19 concerns and policies, causing them to attribute events more negatively in general. Corporations and other industries promised a lot during the pandemic and perhaps that has raised the bar for corporate behavior. Finally, the richest Americans doubled their immense fortunes during the pandemicv, a prominent disparity in light of the struggles many families have faced during the pandemic. Indeed, there has been much negative press on big business, noting that the most prosperous business leaders, like Jeff Bezos, Elon Musk, and Warren Buffet pay only 3.4% in taxes on average. This colors perceptions of big business as a whole.

Even small businesses, perennially held in high regard, have taken a hit lately, with views on smaller companies declining since 2020.vi Moreover, our research indicates that jurors routinely conceptualize “small businesses” as very small, often family-run enterprises, like “mom and pop” grocery stores. This contrasts with the reality of most small businesses, which employ between 100 and 1500 employees.vii Jurors do not hesitate to hold businesses with even as few as 50 employees to the same standards as large corporations. For these reasons, it behooves those representing smaller companies, for instance, small oil and gas companies, to consider declines in public opinion relating to both big and small business.

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INCREASING JURORS’ TRUST IN CIVIL DEFENDANTS There are many steps defense counsel can take to identify and eliminate the most dangerous anti-corporate, victim-oriented jurors in the first place. However, even in a better-case scenario, a typical civil jury will include some moderately anti-corporate jurors, perhaps a few pro-corporate or pro-business jurors, and many who claim “neutral” attitudes although they actually lean one way or the other. Many opportunities are available for defense counsel to promote such jurors’ trust in their client; we outline three of these opportunities below.

EMPHASIZE LOGICAL, SCIENTIFIC DECISION-MAKING Defense counsel has long emphasized the importance of following the law and common sense. While we do not suggest that counsel abandon such pleas, the reality is that current juries are more enticed by invitations to “follow the science” and rely on logic when evaluating the evidence and testimony to make fair, rational decisions.

This may seem counterintuitive given recent media reports of American’s growing distrust in science. Yet, alarm bells about public distrust in science have been sounding for decades in response to controversial issues such as evolution and climate change.viii The appearance of being a scientific, objective decision-maker is currently very in vogue, with those on all sides of the COVID debate pointing to select research results that support their position.

Most jurors also want to present themselves as intellectually savvy, and this is particularly true for plaintiff-leaning jurors. This does not mean that the defense should over-complicate its case; in fact, technical and scientific evidence and testimony should be simplified to the extent possible. Still, appealing to jurors’ intellect and their abilities to objectively consider the scientific and technical evidence has several potential benefits.

Most jurors also want to present

First, such appeals can help elevate jurors’ perceptions of civil defendants. Whether plaintiff’s counsel is advancing themselves as intellectually savvy, sympathy ploys or more skillfully trying to establish and this is particularly true for unattainable safety rules via reptile tactics, appeals to logic and science resonate with the same jurors who hold plaintiff-leaning jurors. anti-corporate beliefs and are susceptible to opportunities to send a message to corporate wrongdoers. Almost all civil cases involve some science and a substantial portion of technical evidence; if anti-corporate jurors (or even “neutral” jurors) are seated at trial, appeals to scientific and logical decision-making can help temper the need to express anti-corporate beliefs through their case decisions.

Second, appeals to jurors’ logical and scientific sides instills a sense of accountability, especially if they are advanced during voir dire, “We understand that you are not legal or scientific experts, nor are you expected to be.

It is important to us, however, that you will use logic in your decisions about this matter and will evaluate the scientific evidence and testimony to the best of your ability to reach a fair decision. Is there anyone here who might have difficulty doing that?” Defense counsel can also ask jurors with certain occupations (such as a nurse or a high school teacher) whether they rely on logic and science in their jobs.

Third, in making such appeals, civil defendants are expressing a belief that jurors are capable of reaching a logical, scientifically sound conclusion on their own; this caters to jurors’ desires to feel relevant and understood. This can lead to increased attention to and recall of defense evidence and testimony, even when both sides retain technical or scientific experts. In the deliberation room, jurors clinging to pro-plaintiff arguments about corporate greed or community safety will be forced to refute clear scientific and logical defense arguments that are understood by their peers.

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ACCEPT RESPONSIBILITY Our interviews with both mock and actual jurors reveal that a top explanation for an unexpected plaintiff verdict or inflated (i.e. nuclear) damage award is, “The defendant(s) didn’t take any responsibility.” We agree with trial lawyer Bob Tyson, who advised defendants to “accept responsibility in every case.”ix This does not necessarily mean stipulating to liability, although doing so is warranted in many cases and can be a critical strategic move. An appropriately designed mock trial can provide answers for counsel and clients wishing to test the effects of stipulating to liability. For example, a mock jury panel can be split with one subsample exposed to presentations in which the defense admits liability, and another subsample exposed to presentations in which the defense disputes liability.

Depending on the venue and case facts, accepting some percentage of responsibility can be a wise decision even when (mostly) disputing liability. This is particularly true in venues with modified comparative fault. For example, accepting 10-15% of the fault may be enough to gain trust and quell motivations to punish in some cases. Again, pre-trial research projects such as appropriately designed focus groups and mock trials can test the effects of acceptance of fault so that the defense can make informed decisions about whether to accept some fault, and if so what percentage to accept.

There are still many opportunities to accept responsibility in such cases. If there are “bad facts” – and every case has them – the defense should embrace these facts and then either explain them at trial or accept responsibility for the facts while showing the jury that such facts are not a factor in negligence or causation.

Of course, in many cases the defense will want to strongly dispute liability and does not believe that any acceptance of responsibility is warranted. There are still many opportunities to accept responsibility in such cases. If there are “bad facts” – and every case has them – the defense should embrace these facts and then either explain them at trial or accept responsibility for the facts while showing the jury that such facts are not a factor in negligence or causation. The defense also can accept responsibility for its policies and practices – e.g., we are responsible for requiring thorough hazard assessments; we are responsible for employees’ (specific) training; we are responsible for monitoring employees’ driving records and real-time violation alerts; we are responsible for requiring employees to document (fill in the blank). Such responsibilities will vary across cases but should be acknowledged to help demonstrate the efforts and complexities involved in running a business of any size.

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EVALUATE AND PREPARE WITNESSES Corporate representatives and employees are best positioned to tell the “good company story” and increase jurors’ trust in the defendant(s). A key fact witness who is relatable, presents and communicates well, and effectively navigates questioning from opposing counsel can dramatically shift jurors’ existing perceptions and motivations in the right direction, leading to a favorable defense outcome. However, many jurors inherently distrust corporate representatives, thinking “Of course they are going to tell a good company story…that’s their job.” They also question the motivations of individual defendants, often assuming that “they have a lot to lose.”

Hence, the selection of who serves as the corporate representative is critical. The corporate representative has a tremendous weight on their shoulders and their performance at deposition and/or trial is vital as our research has shown that deposition testimony is the decisive measure of damages in a case. Selection of a corporate representative shouldn’t simply be based on their level of knowledge about company operations. It is essential that corporate representative candidates be assessed on their ability to withstand challenging questioning and be fully trained to identify and avoid opposing counsel’s tricks and traps. A neurocognitive training program, conducted either virtually or in-person, is crucial to achieve confident results.

Most adults in the U.S. have become more comfortable with virtual solutions in the midst and wake of the coronavirus; this is true among older adults as well as those who would label themselves as “technologically challenged.” Increased comfort and use of virtual communication presents tremendous opportunities for witness evaluation and preparation. Although in-person witness evaluation and training are always highly beneficial, in many instances initial witness assessments and skills trainings can be conducted virtually. This eliminates barriers to travel and time constraints. In addition, virtual trainings can be split into shorter segments, avoiding witness stress and fatigue. For some witnesses, the entire training can be effectively conducted virtually; for others, a hybrid approach is best. For example, a witness may participate in an initial assessment and skills training virtually, followed by an in-person follow-up refresher with mock questioning.

The corporate representative has a tremendous weight on their shoulders and their performance at deposition and/or trial is vital as our research has shown that deposition testimony is the decisive measure of damages in a case.

Juror witness evaluation studies also can be conducted virtually with reliable results. These can be especially helpful in selecting a corporate representative or a key expert witness. For instance, counsel may record mock questioning sessions with two or more potential corporate representatives, and mock jurors participating virtually can provide their reactions and feedback for how witnesses can improve. Such studies can certainly also be conducted in person, but virtual options are available to maximize efficiency and reach.

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CONCLUSION

CITATIONS

Though decreased favorability ratings about most industries and institutions in the wake of COVID-19 present a threat to defendants in civil suits, meeting this challenge with informed preparation and legal strategy can help restore jurors’ faith in corporate defendants. By seizing upon the current positive regard for logical and scientific thinking, counsel may nudge jurors to rely less on emotional decision-making in civil suits. Accepting responsibility sincerely and specifically may also renew trust in corporations. Finally, the compelling nature of an able witness telling a good company story cannot be overstated. Taken together, these opportunities can allow defense counsel to turn post-pandemic declines in corporate perceptions into a tactical advantage.

i. See Sicafuse, L. & Loberg, M. (2021). COVID-Related Attitude Changes Toward Companies and Industries: Implications for Defense Counsel. Georgia Defense Lawyer: A Magazine for the Civil Defense Trial Bar, XVI, III; Sicafuse, L., & Loberg, M. (2021). Trial by COVID: The Pandemic’s Impacts on Jurors and Defendants. CLM Magazine. https://www.theclm.org/Magazine/articles/trial-by-covid/2208 ii. Brenan, M. & Jones, J.M. (2021). Image Ratings of Several U.S. Industries Tumble. Gallup. https://news.gallup.com/ poll/354653/image-ratings-several-industries-tumble.aspx iii. Williams, C. (2021). Tax Hikes for Corporations and High Earners — Absent From Most Recent ‘Build Back Better’ Debate — Are Popular Among Voters. Morning Consult. https://morningconsult.com/2021/10/27/ build-back-better-pay-for-provisions-polling iv. Williams, C. (2021). Biden Has Pinned Inflation on Large Businesses, and Over Half of Voters Seem to Agree.

Morning Consult. https://morningconsult.com/2022/01/19/inflation-companies-polling v. Kollmeyer, B. (2022). The world’s richest 10 men doubled their fortunes to $1.5 trillion during the pandemic, says Oxfam. MarketWatch. https://www.marketwatch.com/story/the-worlds-richest-10-men-doubled-their-fortunes-to1-5-trillion-during-the-pandemic-says-oxfam-11642426379 vi. Brennan, M. (2021) Americans' Confidence in Major U.S. Institutions Dips. Gallup. https://news.gallup.com/poll/ 354653/image-ratings-several-industries-tumble.aspx vii. Hait, A. W. (2021). The Majority of U.S. Businesses Have Fewer than Five Employees. United States Census Bureau. What is a Small Business? (census.gov) viii. See Guidotti, T. L. (2017). Between Distrust of Science and Scientism. Archives of Environmental & Occupational Health, (72)5; and van der Linden, Stephan L. (2015). How to Combat Distrust of Science: The Surprising Power of the Psychology of Consensus. Scientific American. https://www.scientificamerican.com/article/how-to-combatdistrust-of-science ix. Tyson, R. F. (2020). Nuclear Verdicts: Defending Justice for All. La Jolla, CA: Law Dog Publishing.

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© Copyright 2022 Courtroom Sciences Inc. All Rights Reserved.

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OADC Oregon Association of Defense Counsel

2022 OADC ANNUAL CONVENTION CLE MATERIALS Breakout Session A1) Employment Practice Group Advanced Leave and Accommodation Issues for Defense Counsel Melissa Healy, Stoel Rives, LLP Jacqueline Houser, Lewis Brisbois Bisgaard & Smith LLP Chet Nakada, BOLI Christine Sargent, Littler Mendelson, P.C. June 18, 2022 Noon to 1 pm Sunriver Resort 157

Melissa Healy, Stoel Rives, LLP Melissa Healy represents employers in all areas of labor and employment law. She has significant litigation experience and has first- or second-chaired over 20 jury trials and arbitrations. She frequently counsels clients on a wide range of labor and employment-related issues, conducts internal investigations, provides training to employees and management, and assists on the employment-related aspects of corporate transactions. Melissa has a strong traditional labor background and regularly represents employers in discharge and contract interpretation arbitrations and before the National Labor Relations Board. She particularly enjoys working with in-house counsel, Human Resources professionals, and managers to craft thoughtful and effective solutions to complex workplace challenges, and serving as their advocate in litigation.

Born and raised in Albany, Oregon, Melissa works with clients throughout the state. She has experience representing clients in several industries, including manufacturing, health care, and hospitality.

Before joining Stoel Rives, Melissa was an associate at Barran Liebman LLP and a judicial law clerk for Justice W. Scott Bales of the Arizona Supreme Court.

Industries Serviced Consumer Products, Manufacturing, and Transportation Service Areas Employment Advice & Counsel Employment Litigation Labor & Employment Labor Relations Wage & Hour Bar Admissions Oregon U.S. District Court for the District of Oregon U.S. Court of Appeals for the Ninth Circuit Education University of Arizona, J.D., 2009, magna cum laude; Order of the Coif; Executive Note Editor and Writer, Arizona Law Review; Perry Rogers Scholar University of Oregon, B.A., Political Science, 2004, summa cum laude with departmental honors

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Jacqueline Houser, Lewis Brisbois Bisgaard & Smith LLP Jacqueline Houser is an associate in the Portland office of Lewis Brisbois and a member of the Labor & Employment and Medical Malpractice Groups. Jacqueline devotes her legal practice to managementside employment law litigation and advice and counseling. She represents employers of all sizes in a myriad of employment law matters including disability accommodations, leaves of absence, discrimination and harassment, and terminations.

Jacqueline also advises and counsels employers on best practices for avoiding litigation and on employee-related policies and procedures, including performing handbook analysis for compliance with state and federal laws, advising on discipline and termination decisions, and drafting handbooks and policies.

In addition, Jacqueline defends healthcare providers and institutions against claims of professional liability, general liability, and healthcare liability.

Primary Areas of Practice Healthcare Medical Malpractice Labor & Employment

Chet Nakada, BOLI Oregon Bureau of Labor and Industries (971) 612-0516 chet.nakada@boli.oregon.gov

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Christine E. Sargent Associate

1300 SW Fifth Avenue Wells Fargo Tower, Suite 2050 Portland, OR 97201 main: (503) 221-0309 direct: (503) 889-8915 fax: (503) 242-2457 csargent@littler.com

Focus Areas Litigation and Trials eDiscovery Home Health and Home Care

Overview Christine E. Sargent assists employers in all aspects of employment law. As an up and coming litigator, Christine has significant experience defending her clients in civil litigation suits involving discrimination, retaliation, and harassment claims. After learning to litigate at a regional defense firm where she worked closely on matters involving construction defects, toxic torts, and catastrophic personal injuries, Christine sought to bring her experience to the employment law world. Christine’s personable yet deliberate and thoughtful demeanor is well-known in the Portland market. Growing up in a military family allowed Christine to develop a disciplined and competitive work ethic that she brings to her legal career in all that she does on a daily basis. As Christine continues to grow as a litigator at Littler, these qualities will only serve to accelerate her on a more national scale.

During law school, Christine externed for the Hon. Stacie F. Beckerman at the U.S. District Court for the District of Oregon. Her tenure at the federal court provided her with valuable insight into federal claims in employment law and beyond, as well as the opportunity to get to know federal judges. She clerked for the Multnomah County District Attorney’s Office as a certified legal student, which required her to be in court every day for arraignments and pre-trial proceedings. Christine also clerked for a solo practitioner whose practice consisted primarily of ERISA long-term disability claims.

Christine takes pride in staying up to date on developing case law. In doing so, Christine regularly contributes to defense publications and also serves in numerous leadership positions, both locally and nationally.

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Christine E. Sargent

Professional and Community Affiliations • • • • • • • • • • •

Committee Member, Campaign for Equal Justice, 2017-present Associate, Gus J. Solomon American Inn of Court, 2017-present Editor, Defense Victories, Oregon Association of Defense Counsel, 2019-present Member, Multnomah Bar Association, Board Member, Young Lawyers Section, Membership Committee, 2019Present; Volunteer, Imprint Program, 2018-Present; CLE Committee, 2017-2019 Volunteer Mentor, Portland Reentry Court Program, 2017-present Co-Vice Chair, Young Lawyers Substantive Law Liaisons Committee, Defense Research Institute, 2018-2019 Peer Mentor, Amicus Peer2Peer Mentor Program, 2016-2017 Founder & President, Lewis & Clark Law School Federal Bar Association, 2015-2017 Volunteer, Start Making a Reader Today (SMART), Woodlawn Elementary, 2017 Teaching Fellow, Legal Analysis & Writing Department, Lewis & Clark Law School, 2015-2016 Volunteer, Bankruptcy Clinic, Legal Aid Services of Oregon, 2014-2015

Recognition • • •

Named, Best Oral Advocate in Legal Analysis & Writing, Lewis & Clark Law School, 2015 Recipient, Pro Bono and Community Services Honors Award, Lewis & Clark Law School, 2014-2015 First Place Winner, Increasing diversity in the legal profession, Davis Wright Tremaine LLP’s Essay Contest, 2013

Education J.D., Lewis & Clark Law School, 2017 B.S., Portland State University, 2014, summa cum laude

Bar Admissions Oregon

Courts U.S. District Court, District of Oregon

Publications & Press Federal Court Denies Challenge to Oregon Vaccine Mandate SHRM Online November 5, 2021

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Oregon Federal Court Joins Other Jurisdictions in Denying Challenge to Government-Issued Vaccine Mandate Littler Insight October 21, 2021 Oregon Issues Temporary Rule Expanding the Scope of its Paid Sick Leave Law During a Public Health Emergency Littler ASAP July 29, 2021 Opening Pandora’s Box: Oregon Court of Appeals Holds That “Any Person” Can Be Held Liable Under Oregon’s Aiding and Abetting Statute Littler Insight July 20, 2021 Employment Highlights from Oregon’s Active 2021 Legislative Session Littler Insight July 12, 2021 Hold the Phone: Employees Can Bring Common-Law Wrongful Discharge Claims in Oregon for Seeking Legal Advice About Their Employment Littler ASAP March 31, 2021 Oregon Supreme Court Limits Employers’ Tools for Avoiding Excessive Attorney Fees for Minor Pay Violations Littler ASAP January 13, 2021 The ABCs of Associate Success The Verdict September 1, 2020 Recent Developments in Employment and Labor Law American Bar Association June 10, 2020 Hon. Stacie F. Beckerman: Magistrate Judge, U.S. District Court for the District of Oregon The Federal Lawyer June 1, 2020 Legislative Highlights for Oregon Employers in 2020 Littler Insight February 13, 2020 3

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Stay Smart About Technology: Legal Implications of Voice-Activated Technology and the “Internet of Things" For the Defense November 2019 Networking Not Working? 5 Common Mistakes New Attorneys Make and How to Fix Them Multnomah Lawyer April 2019 Social Media, Debt, and Exclamation Points: Millenials in the Legal Profession The Verdict October 2018 Jury Trial Experience Program Offers Valuable Opportunity to Interested Litigators Multnomah Lawyer March 2018

Speaking Engagements What’s New in Oregon? Employer Update on the 2020-21 Legislative Session in Salem Portland, OR July 15, 2021 Small Business Basics of Oregon Employment Law Soul District Business Association April 26, 2021 Trends in COVID-19 Employment Law Litigation Oregon Association of Defense Counsel Webinar November 10, 2020 Case Law Update 2020: What Every Employer Must Know Oregon Bureau of Labor and Industries’ Annual Employment Law Conference November 5, 2020 The Workplace in Today’s Economy The Seminar Group’s Annual Labor & Employment Law Conference June 9, 2020 Implications for Employers As We Return to Work Following COVID-19 Oregon Association of Defense Counsel Webinar May 7, 2020 4

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Christine E. Sargent

Oregon Employment Law COVID-19 Update: Federal and State Legislation, Predictive Insights, and Critical Next Steps to Protect Your Business Now and Recover Tomorrow April 7, 2020 Impact of COVID-19 Oregon Association of Defense Counsel Webinar April 1, 2020 Oregon Legislative Update: Employment Law Changes You Need to Plan for in 2020 and Beyond Portland, OR January 22, 2020 Everything You Say is Sexual Harassment & 9 Other Myths Sexual harassment training November 20, 2019 Case Law and Legislative Update: An Overview of an Eventful Year!

Oregon Bureau of Labor and Industries Annual Employment Law Conference November 4, 2019 How to Deal with Difficult Opposing Counsel Oregon Association of Defense Counsel Annual Convention June 2019 Comparison of Oregon and Washington Court Procedures for Asbestos Litigation Washington Defense Trial Lawyers, Asbestos Law June 2018

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Advanced Leave and Accommodation Issues for Defense Counsel OADC Convention June 18, 2022 Presented by: Melissa Healy Stoel Rives, LLP Jacqueline Houser Lewis Brisbois Bisgard & Smith LLP Chet Nakada Oregon Bureau of Labor and Industries Christine Sargent Littler Mendelson, P.C.

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Agenda • Family leave update • Accommodations • Religious (COVID-related) • Disability • Mental health • Leave

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Family and Medical Leave

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Paid Family and Medical Leave ORS chapter 657B provides paid family and medical leave insurance benefits. Contributions to the insurance fund will begin January 1, 2023. The insurance benefits program will fully take effect September 3, 2023.

The law includes three main components: • Up to 12 weeks (and in limited circumstances up to 18 weeks) of paid family leave

• Employer and employee contribution requirements for employers with 25 or more employees (employee-only contributions for employers with 24 or fewer employees) • Anti-discrimination, anti-retaliation protections

Next: The Oregon Employment Department administrative rules

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Paid Family and Medical Leave: Coverage Covered: • Bonding time with a new child, newly adopted child or newly placed foster child within the first year after birth or placement • Employee’s own serious health condition • Serious health condition of a “family member” • Safe leave (domestic violence, sexual assault, stalking or harassment) - ORS 659A.272 Not covered: • Bereavement leave • Sick child leave for non-serious health conditions

• Oregon Military Family Leave

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Paid Family and Medical Leave: Family Members Adopts a broader standard than even OFLA does for family members: • Parents, spouses, domestic partners and children (and in loco parentis) and the spouses or domestic partners of parents and children; • Grandparents and grandchildren and their spouses or domestic partners; • Siblings and stepsiblings and their spouses or domestic partners; and

• Any individual related by blood or affinity whose close association is the equivalent of a family relationship (stay tuned for rules on this one!)

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Paid Family and Medical Leave: Who Pays?

The Employment Department, not individual employers, will administer the insurance funds and pay the insurance benefits.

Employers: • Employers with 24 or fewer employees collect and remit employees’ contributions. Employers with 25 or more employees pay a percentage of total rate, as determined by the Employment Department. Total rate may not exceed 1% of employee wages, up to a max of $132,900 in wages.

• Quarterly reports of wages earned and contributions made Employees:

• All employees pay into the fund as a percentage of income

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Paid Family and Medical Leave: Income Replacement • Wage replacement is based on how employee’s salary compares to the state average wage.

• Lower-wage workers get a larger percentage of their weekly salary.

• Employees with salary at 65% or less of the state average wage receive 100% of salary.

• Higher-paid employees will receive income replacement based on a formula that combines (1) 65% of the state average wage PLUS (2) 50% of their salary that is beyond the 65% of the state average wage.

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OFLA Eligibility Requirements with Break in Service and Return to Service Within 180 Days OFLA

OFLA

• Employee must have been • Employee must have worked an employed for a combined total of at average of 25 hours per week least 180 calendar days excluding during the applicable 180 a separation or layoff of less calendar days (except parental than 180 days leave)

• Oregon Laws 2021, ch. 182 (HB 2474) § 2(4)(a) & (c) Effective 1-1-2022

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Common Pitfalls • “Points” attendance policies • Failing to designate protected absences including Oregon sick time • Thinking OFLA/FMLA is optional or there is a hardship analysis • The OFLA/FMLA eligibility gap • Failing to manage misuse

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Accommodations

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We Never See the Easy Cases • An employee who needs a few weeks off for surgery • An employee who needs an ergonomic keyboard

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We See the Hard Cases • An employee who has panic attacks every time their manager talks to them about their performance

• An employee who is taking frequent time off with no advance notice • An employee who has been gone for six months but keeps getting notes from a doctor excusing them for one more month

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COVID Accommodation Issues

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Basics – Religious Accommodations 101 • Employers are required to accommodate employees’ “sincerely held” “religious beliefs”

• Includes non-religious beliefs about morality and ethics • Does not include merely personal objections • Benefit of the doubt given to employee

• Undue hardship is something more than a “de minimis” cost or burden

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COVID Accommodation Requests • People who can’t wear a mask, or wear one for long periods of time • People who want to stay remote forever • People who want a private workspace because they are high risk or get anxious wearing a mask

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COVID Accommodation Requests • People who don’t want to get vaccinated • Many employers are liberal about granting exception requests, less so about accommodating • Undue hardship for religious exceptions is a somewhat low bar if there is an argument that it unreasonably impacts workplace safety

• But that doesn’t mean there won’t be litigation

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COVID Accommodation Requests – Misc. Issues • Remote employees • People who don’t want to disclose their vaccination status • Handling of vaccine-related information

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Common ADA Issues

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Lack of Organization/Preparedness • Maintain accurate job descriptions • Attendance as essential function • Social or in-person elements of job • Manage performance before accommodations are requested • Train managers and supervisors

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Notice • When are you on notice of a disability?

• Potential signs of a need for accommodation: • New/sudden performance issues • Mention of depression/anxiety; “hormones” • Request for time off (especially before eligible for FMLA/OFLA)

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Insufficient Process • Rushing through the meaningful interactive process • Jumping too quickly to undue hardship • Bad doctor’s notes • Ask clarifying questions • When to get a second opinion?

• What type of health care provider?

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Misc.

• The accommodation will not allow employee to perform essential functions of the job

• The accommodation is expensive • Employee’s provider is in another state/other indicia that provider has never actually seen patient

• The only requested “accommodation” is one you’ve already determined won’t work

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Mental Health and Accommodations

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Mental Health and Accommodations • When is it a disability?

• Intermittent ADA leave • Fitness for duty/safety risks • Issues that affect performance management

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Potential Mental Health Issues* in the Workplace • Anxiety • Post Traumatic Stress Disorder (PTSD) • Major depression • Attention Deficit Hyperactivity Disorder (ADD or ADHD) • Learning disabilities • Drug and alcohol addiction

• Obsessive Compulsive Disorder (OCD) • Bipolar disorder • Delusional or paranoid behavior

*Need to be treated just like physical disabilities

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What Do Mental Health Accommodations Look Like?

• Flexible schedule to allow for appointments • More or longer breaks • More frequent reminders of tasks or deadlines • Quieter work environment or noise-canceling headphones • Removing marginal functions • Work from home • Others?

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What Is Not a Mental Health Accommodation?

• Allowing employee outbursts in violation of workplace rules (generally) • Eliminating essential job functions • Requiring other employees to work harder • Monitoring an employee’s medication • Providing a stress-free work environment

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What Can You Require?

Ability to: • Be respectful toward coworkers, supervisors and customers • Require reliable and predictable attendance • Work in a stressful environment Employers can also hold all employees to the same conduct standards, when job related

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Fit for Duty/Safety Concerns • What to do when an employee presents a safety risk • Direct threat = significant risk of substantial harm to self or others • Not required to accommodate a direct threat • Weigh risk of ADA violation versus safety risk • Consider requiring a fitness for duty evaluation • Is there a reasonable accommodation available to eliminate or reduce the threat?

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Examples • Employee found cutting himself at work • Employee who makes complaints of harassment that appear to be delusional • Employee who threatens violence against boss but claims the threats are not real and just a symptom of his disability

• Employee who swears at meetings, upsetting coworkers, but says the swearing is an uncontrollable result of anxiety

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Fit for Duty/Safety Concerns • Key takeaways • Can enforce workplace rules even if violation is caused by employee’s disability • Not required to excuse disabled employees from standards of conduct or safety rules

• Workplace rules should be job related and consistent with business necessity • May need to explore accommodations to help employee comply with workplace rules

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Takeaways • Mental health conditions need to be treated just like physical limitations • Don’t single out mental health disabilities for extra scrutiny (such as requiring doctor’s note only for mental health conditions) • Don’t do away with essential job functions, but be prepared to think outside the box

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Leave as a Reasonable Accommodation

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When Should Leave Be Considered?

• Employee may return from leave with restrictions • No “fully healed” policies • Leave may be a reasonable accommodation even if no OFLA/FMLA available • There are no workplace accommodations that will help employee perform essential job functions • A leave will help employee return to work

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Leave as a Reasonable Accommodation • How much leave do we have to give?

• No clear guidance on what length of leave is reasonable • Fact-specific • Nature of job • Size of employer • Not required to provide indefinite leave • If claiming undue hardship, document!

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Forms of Leave as a Reasonable Accommodation • Continuous leave • Intermittent days off • Additional or longer breaks • Shorter shifts • Adjusted start or end time • Leave to attend medical appointments • Grace period for arriving late to work

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Leave as a Reasonable Accommodation • Always consider the ADA when an employee requests leave for own health condition but isn’t OFLA/FMLA eligible

• Request supporting medical documentation • Explore other accommodations first; don’t automatically resort to leave as an “easy out”

• Leave can be continuous or intermittent • If leave is not an option, look to reassignment

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Questions?

Melissa Healy

Jacqueline Houser

Chet Nakada

Christine Sargent

Stoel Rives LLP

Lewis Brisbois Bisgard & Smith LLP

Oregon Bureau of Labor and Industries

Littler Mendelson, P.C.

(503) 294-9263 melissa.healy@stoel.com

(971) 334-7006 jacqueline.houser@lewisbrisbois.com

(971) 612-0516 chet.nakada@boli.oregon.gov

(971) 291-5662 csargent@littler.com

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OADC Oregon Association of Defense Counsel

2022 OADC ANNUAL CONVENTION CLE MATERIALS Breakout Session A2) Construction Practice Group

If you Build it: An Oregon Construction Update Angie Ott, Ball Janik LLP June 18, 2022 Noon to 1 pm Sunriver Resort 204

6/2/22, 7:45 AM

Angela M. Otto | Construction and Design and Litigation Attorney

Angela M. Otto 101 SW Main Street, Suite 1800 Portland, Oregon 97204 phone: 503.944.6042 fax: 503.295.1058 email: aotto@balljanik.com

“Strategy, experience and cost-effective results underscore Ball Janik’s approach to client service. This has made the firm successful and indispensable in representing clients in the construction and design industry.”

BIOGRAPHY Angela M. Otto is a Partner in Ball Janik LLP’s construction and design practice group. Ms. Otto’s practice is dedicated to the representation of general contractors, subcontractors, and suppliers, owners, and developers in construction disputes, litigation, arbitration and mediation. She also represents clients on significant delay and impact claims, complex contractual disputes, and other matters pertaining to the design and construction of multi-million dollar facilities. Ms. Otto has been involved in numerous complex construction and design claims, several significant delay and impact claims, countless lien foreclosure and breach actions, and multiple construction defect suits. She

https://www.balljanik.com/our-team/angela-m-otto/

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Angela M. Otto | Construction and Design and Litigation Attorney

further represents clients on the front end of construction and design projects, including developing risk management procedures, negotiating contracts, and visiting job sites to mediate potential issues.

Ms. Otto has been recognized in The Best Lawyers in America for Construction Law and Litigation – Construction since 2018. She has been selected to the Oregon Super Lawyers list, published

by Super Lawyers Magazine, since 2018. Ms. Otto also served as counsel to the board for the Associated General Contractors Oregon-Columbia Chapter from January 2015 through January 2020.

Additionally, Ms. Otto is a Fellow of the American Bar Foundation, an honorary society of attorneys, judges, law faculty, and legal scholars whose public and private careers have demonstrated outstanding dedication to the highest principles of the legal profession and to the welfare of their communities.

Before joining Ball Janik LLP in April 2015, Ms. Otto was a partner at another construction boutique firm based in Portland. Ms. Otto’s deep construction-related experience includes multi-million dollar disputes involving the design and construction of a bridge using fiber-reinforced polymer decking, the defective construction of an active food manufacturing facility, the design and construction of various wastewater treatment facilities, a lien foreclosure dispute challenging the priority of the lender’s interest in the underlying property, the design and construction of a 60-mile natural gas pipeline in southern Oregon, and the design and construction of various hospital renovations and high-tech manufacturing facilities. Ms. Otto has also been involved in multiple construction defect suits, several significant delay and impact claims, and countless lien foreclosure and breach actions.

Ms. Otto has significant arbitration and mediation experience, and frequently counsels clients on prelitigation dispute resolution strategies. Additionally, she represents clients on the front end of construction and design projects, including developing risk management procedures, negotiating contracts, and visiting job sites to mediate potential issues.

Ms. Otto regularly appears in state and federal courts in Oregon and Washington, is also admitted in Utah, and has significant mediation and arbitration experience. She is a past Chair of the Oregon State Bar Construction Law Section and was a member of the executive committee between 2003 and 2010. She is a frequent speaker at continuing legal education and construction industry courses and seminars. Ms. Otto was also featured in the Portland Business Journal’s Executive Profile. Ms. Otto is a member of Oregon Women Lawyers and a founding member of the Women’s Foundation of Oregon.

EDUCATION J.D., 1999 University of Oregon School of Law B.A., magna cum laude, Psychology, 1995 Pacific Lutheran University

https://www.balljanik.com/our-team/angela-m-otto/

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Angela M. Otto | Construction and Design and Litigation Attorney

ADMISSIONS Oregon Utah Washington U.S. District Courts for Oregon and Washington U.S. Court of Appeals for the Ninth Circuit

HONORS The Best Lawyers in America list since 2018 Oregon Super Lawyers “Rising Stars” list, 2010–2013 Oregon Super Lawyers list, 2018–2020 American Bar Foundation, Fellow, since 2020

No Blog Tiles found.

https://www.balljanik.com/our-team/angela-m-otto/

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OADC Oregon Association of Defense Counsel

2022 OADC ANNUAL CONVENTION CLE MATERIALS Breakout Session A3) Coverage Practice Group Bad Faith Claims in Oregon and the Impact of Moody vs. Oregon Community Credit Union and Federal Insurance Company

FJ Maloney, Maloney, Lauersdorf, Reiner Scott Maclaren, Maloney, Lauersdorf, Reiner June 18, 2022 Noon to 1 pm Sunriver Resort 208

Nick McGuf n Civil Rights Lawsuit – Complaint (https://mlrlegalteam.com/wp-content/uploads/2020/07/NICHOLAS-JAMES-

8)

m/)

MCGUFFIN_2020-07-20-Complaint.pdf) & Press Release (https://mlrlegalteam.com/wp-content/uploads/2020/07/Press-Release-McGuf n-

Francis J. “FJ” Maloney, III, Maloney, Lauersdorf, Reiner Files-Civil-Rights-Suit-2020_07_20.pdf)

 Shareholder fjm@mlrlegalteam.com (mailto: fjm@mlrlegalteam.com) 503.245.1529

Francis “F.J.” Maloney is recognized as the “go-to” attorney in rst-party extra-contractual and “bad faith” insurance litigation. F.J. started his legal career as a Deputy District Attorney in Deschutes County, Oregon, where he gained valuable trial experience prosecuting criminal cases ranging from juvenile delinquencies and dependencies to minor misdemeanors and major felonies, including capital murder. That experience has carried over to a successful multi-jurisdictional practice. F.J. regularly litigates and tries cases in numerous states and jurisdictions, and has successfully argued cases before the Oregon Supreme Court, Oregon Court of Appeals, Washington Court of Appeals, South Dakota Supreme Court and Eighth Circuit Court of Appeals. F.J. has also been active in numerous professional organizations including the Oregon and Washington State and Federal Bars, the American Bar Association, Oregon Association of om) > Team (https://mlrlegalteam.com/team/) > Francis J. “FJ” Maloney, III (https://mlrlegalteam.co Defense Counsel and several other local bar associations. He is the past Chair of the ABA’s Subcommittee for the Tort Trial Insurance Property Section, a nationally-recognized association of insurance litigators from around the country. (https://mlrlegalteam.com/team/andrew-c-lauersdorf/

F.J. also actively participates in local charities and organizations, including as the past Chair of the Archdiocese of FJ” MALONEY, III Portland Pastoral Counsel, board member for the Catholic Youth Athletic Association, and as a member of several local pastoral and school councils. Having returned in 2020 from an extended sabbatical in which he and his family sailed m.com (mailto:fjm@mlrlegalteam.com) the Eastern Seaboard aboard their catamaran, “Wild Rumpus,” F.J. spends much of his free time in outdoor endeavors such as trail running, mountain biking and skiing. In the winter he devotes weekends to volunteering as a medical rst aloney is recognized as the “go-to” in rst-party extra-contractual responder with theattorney Mt. Bachelor National Ski Patrol. insurance litigation. F.J. started his legal career as a Deputy District

Bar/Court Admissions Oregon State Bar, 1995

schutes County, Oregon, where he gained valuable trial experience

iminal cases ranging from juvenile delinquencies and dependencies to minor

State Bar, 2012That experience has carried and major Washington felonies, including capital murder.

ssful multi-jurisdictional F.J. regularly and tries cases in U.S. Districtpractice.

Court for the Dist.litigates of Oregon

es and jurisdictions, and has successfully argued cases before the Oregon

U.S. District Court for the Western Dist. of Washington

t, Oregon Court of Appeals, Washington Court of Appeals, South Dakota

U.S. District Court for the Eastern Dist. of Washington

t and Eighth Circuit Court of Appeals. F.J. has also been active in numerous

U.S. Eighth Circuit Court of Appeals U.S. Sixth Circuit Court of Appeals Education University of Oregon, J.D., 1995 Boston College, B.A., English and Environmental Geosciences, 1989

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Scott Maclaren, Maloney, Lauersdorf, Reiner Attorney sam@mlrlegalteam.com (mailto: sam@mlrlegalteam.com) 503.972.8160 Nick McGuf n Civil Rights Lawsuit – Complaint (https://mlrlegalteam.com/wp-content/uploads/2020/07/NICHOLAS-JAMES-

 (503) 245-1518(tel:5032451518)

MCGUFFIN_2020-07-20-Complaint.pdf) & Press Release (https://mlrlegalteam.com/wp-content/uploads/2020/07/Press-Release-McGuf n-

Files-Civil-Rights-Suit-2020_07_20.pdf)



(https://mlrlegalteam.com/)

Scott A. MacLaren litigates in state and federal courts. He is experienced in handling insurance coverage matters focusing on rst-party property damage claims, including arson, fraud and coverage claims. He advises clients on a wide variety of legal matters, including coverage issues such as the investigation and litigation of Special Investigation Unit (SIU) claims, extra-contractual “bad faith” litigation, duty to defend analysis, and non-coverage legal matters such as victims rights cases, products liability cases, and transactional work. Scott has trial and arbitration experience.

Prior to joining Maloney Lauersdorf Reiner, PC, Scott worked in Portland at a large insurance defense rm where he gained valuable experience advising clients on rst-party insurance disputes, subrogation, and insurance defense matters as well as gaining valuable trial experience. During law school, Scott worked at Lane County Legal Aid and Advocacy Center assisting indigent individuals with landlord/tenant issues, foreclosures, and victims of fraud. Scott is originally from the San Francisco Bay Area and has settled in Portland with his family to pursue his legal career.

 (https://mlrlegalteam.com)

> Team (https://mlrlegalteam.com/team/) > Scott A. MacLaren (https://mlrlegalteam.com/tea

Professional Memberships: American Bar Association Multnomah County Bar Association Oregon Association of Defense Counsel Articles and Presentations Co-Presenter, MLR’s Annual Year in Review CLE Presentation (2014-present) Co-Author, “Natural Disaster and their Implications upon Direct v. Indirect Off Premises Business Income Losses,” American Bar Association’s The Brief Spring 2017 Co-Author, “Direct v. Indirect Off Premises Business Income Losses Mount St. Helens and Beyond,” ABA Tort Trial & Insurance Practice Section’s Property Insurance Law Committee Annual Spring CLE (2016) Author, MLR’s Insurance Coverage Blog (2014-present) Bar/Court Admissions Oregon State Bar, 2012 U.S. District Court for the District of Oregon Washington State Bar, 2018 Education University of Oregon School of Law, J.D., Cert. of Comp. in Business Law California Polytechnic State University at San Luis Obispo (Cal Poly), B.S., Business Administration

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• Admitted in Oregon and Washington • Practicing law for 10 years • Scott has been successfully defending insurance carriers in first-party and extracontractual litigation, advising insurance carriers on coverage, SIU and policy form matters, and defending policyholders in personal injury matters for 10 years • Voted “One to Watch” – Insurance law

by Best Lawyers 2021-2022

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• Admitted in Oregon and Washington • Practicing law for over 25 years with more than 20 years specializing in insurance coverage and extracontractual litigation • FJ has been successfully defending insurance carriers in first-party and extracontractual litigation matters for over 20 years in Oregon, Washington, South Dakota and other jurisdictions nationally as the “go-to” extracontractual bad faith attorney • Numerous jury trials, defense verdicts, and appellate cases regarding work in insurance coverage and extracontractual “bad faith” litigation

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OADC Oregon Association of Defense Counsel

Thank You to All of Our 2022 Annual Conference Sponsors

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