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Earlier this year the BC Government introduced changes to the BC Supreme Court Civil Rules capping the number of expert witnesses parties in motor vehicle and other injury claims can rely on. The rule change was brought unilaterally without consultation of the Rules Committee.
“The Rule is an unprecedented and profound interference with the court’s control of its process, that will greatly prejudice litigants in cases of even modest factual complexity. The Rule was not invited by the Rules Committee, and instead was imposed by the government without notice to the bar, substantially for the benefit of the Crown Corporation auto insurer, the Insurance Corporation of British Columbia (“ICBC”).
The challenge is expected to be heard in the upcoming months. I will continue to follow this issue and report on future developments.
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In recent months both ICBC and the Provincial Government have been vocal in criticizing the use of medico-legal reports in injury litigation resulting in rule changes restricting the rights of litigants in relying on such evidence. In reality ICBC has no reservations seeking out numerous expert reports when it suits their interests in litigation. This inconsistency resulted in critical comments today from the BC Supreme Court.
 I am concerned about the potential for overlap with the neurologist’s opinion and for the bolstering of that opinion by the psychiatrist. I also accept that a psychiatric assessment is invasive. I also consider proportionality. The fact that the plaintiff is not at this time retaining a psychiatrist or psychologist expert strongly suggests that these injuries are not her main concern. However, the pleadings and the discovery evidence tip the balance here.
 I order that the plaintiff attend the IME as sought in paragraph 1 of the Notice of Application. It is a discretionary order. Rule 11-5(7)(b), where the court is appointing an expert, specifically sets out that the expert can be given appropriate directions. I use that as a guide to my discretion here.
 I direct that the IME must be limited to considering the psychiatric issues in the plaintiff’s pleaded claims of irritability, poor mood and depression, together with any psychiatric component to the sleep disorder, and together with any other evidence respecting psychiatric matters taken at the examination for discovery.
 I order that the IME be limited to considering the psychiatric issues in the plaintiff’s pleaded claims of irritability, poor mood and depression, and any psychiatric component to the sleep disorder claim.
 I order that all notes and any other primary evidence taken at the IME must be promptly provided to the plaintiff, within seven days of completion of the IME.
 I have concerns that this IME will not be of much assistance. It flies in the face of the insurer’s stated public opposition to too many expensive medical reports. It is odd that the defendant, through its insurers, focuses on what would appear to be a relatively minor component of the plaintiff’s claim. However, that is the defendant’s choice.
 I am adjourning the application for costs. That is to be dealt with by the trial judge after the conclusion of the trial.
Earlier this year BC’s Attorney General announced changes to the BC Supreme Court Rules limiting how many expert witnesses litigants can use when prosecuting a personal injury lawsuit arising from a motor vehicle collision. The rule change was brought in without notice and without support from the Rules committee.
The retroactive and without notice restriction was subject to much criticism and judicial challenges were swiftly brought. The Government has backed down and before a judicial challenge was ruled on they amended the rule to delay its application only to trials set from 2020 onward.
(b) the limits set out in subrule (8) do not apply (i) to amounts that were necessarily or properly incurred for expert opinion evidence before February 11, 2019, or (ii) to the vehicle action in the circumstances referred to in paragraph (a) (ii).
Although the recent ICBC and BC Government narrative attempts to paint injury claimants in an unreasonable light in reality ICBC often refuses reasonable settlement offers only to be ordered to pay far more at trial. Reasons for judgement were published today by the BC Supreme Court, Vernon Registry, demonstrating such a result.
In the recent case (Moreira v. Crichton) the Plaintiff was injured in a 2013 collision. The Defendant admitted fault. The crash resulted in chronic pain with a poor prognosis. This in turn resulted in real disability and significant past and future medical costs and wage loss. The Plaintiff made a formal settlement offer of $480,000. ICBC refused to pay and the matter proceeded to trial where the Plaintiff’s claim was valued over $800,000. ICBC was ordered to pay double costs for refusing the Plaintiff’s reasonable settlement efforts.
 This is an assessment of costs following a trial before Mr. Justice Betton. The trial was heard in late January and early February 2018; Betton J.’s Reasons for Judgment were rendered on July 31, 2018 cited at Moreira v. Crichton, 2018 BCSC 1281. The total judgment was $804,914.48.
 That totals 270 units at $110.00 per unit for a subtotal of $29,700.00, plus 7% PST of $2,079.00 and 5% GST of $1,485.00 for a total of tariff item costs, inclusive of taxes, of $33,264.00. The disbursements on a Bill of Costs should reflect my decision, together with the effect of my decision on applicable taxes on disbursements.
 The disbursements on that Bill of Costs should reflect my decision, together with the effect of my decision on applicable taxes.
 If required, plaintiff’s counsel may submit to me a revised Bill of Costs and certificate, in accordance with these reasons.
When awarding damages for future losses BC Courts have an obligation to use appropriate present value multipliers in arriving at the lump sum awarded. Normally this is achieved by relying on expert evidence in personal injury cases. Given the BC Government’s recent restrictions on expert evidence Justices will likely have increasingly fewer such reports to assist them.
Neither party provided expert testimony as to the appropriate present value multipliers. However, I find that I have an obligation to account for the present value of the future losses pursuant to s. 56 of the Law and Equity Act, R.S.B.C. 1996, c. 253. Multipliers are calculated using the designated 1.5% for the present value of future income loss and 2% for any other future losses. The amounts presented for female police officers and female university graduates were determined by inflating the 2015 data provided by Mr. Turnbull to 2018 dollars (resulting in figures of $99,300 versus $67,700), calculating the difference of $31,600, and then applying a present value multiplier of 26.23, assuming a retirement age of 65 (37 years hence). I find that I am entitled to make use of the multipliers provided at Appendix E of the Civil Jury Instructions for this purpose. I note that the court has relied on the Civil Jury Instructions for this purpose in other cases where expert evidence was not made available: Smith v. Fremlin, 2013 BCSC 800 at para. 38; Erickson v. Bowie, 2007 BCSC 1465 at para. 51, footnote 3; Hrnic v. Bero Investments Ltd., 2018 BCSC 1880 at para. 57; Barnes v. Richardson, 2008 BCSC 1349, aff’d 2010 BCCA 116; Duifhuis v. Bloom, 2013 BCSC 1180 at para. 62; Harris v. Ladner Centre Holdings Ltd., 2008 BCSC 1735 at para. 70.
When a collision occurs involving injury, death or a prescribed amount of property damage, attending police officers are required to complete a written report of the crash. This can be a valuable resource for collision victims as it documents the parties involved, labels the probable offender for the crash, highlights contributing factors along with road conditions and also notes the names of known witnesses. The ‘prescribed amount’ historically was $1,000 for motor vehicles, $600 for motorcycles $600 and $100 for bicycles. This captured most collisions.
The BC Government has recently labelled almost every injury sustained in a collision as “minor”. They have now labelled all collisions causing under $10,000 in vehicle damage as “minor”. Few people would consider a crash causing $9,000 in damages as anything but severe. It makes little sense to crack down on speeding and distracted driving (activities which very well could cause collisions) but to ignore investigations when actual collisions occur.
This development takes an important tool away from collision victims who later need to advocate on their own behalf. If you are a collision victim in BC it is now more important than ever to document matters that the police used to record following a crash.
Last month ICBC withdrew many settlement offers on open claims and replaced them with lower unrealistic offers which were not tied to judicially established legal principles but rather internally designated criteria. The media dubbed this strategy the “meat chart” which appears to be resulting in fewer settlements and more claims now clogging the courts. BC’s Attorney General, the man in charge of ICBC, has now come out and taken offence to the meat chart label and has outright denied its existence.
M. Lee: Well, I appreciate that we’ve had a great opportunity to have those discussions, in this House, between the Attorney General and myself. That’s partly because, I think, of the complexity of the roles. I will just conclude by saying that, specifically, the concern is over the multiple roles that the Attorney General carries. One is the responsibility to be the chief legal officer for this province, advising the Premier and the cabinet. The role that he played during the referendum, for example, comes to mind.
The second, of course, in no particular order, is the minister responsible for ICBC. As these changes are coming forward, does the Attorney General look at these changes through the lens of cost containment, as the minister responsible for ICBC, or through the lens of being the chief legal officer to this province, ensuring that individuals’ rights are protected?
There is, of course, great concern in terms of the need for expert reports, the manner in which this meat chart policy that ICBC now has…. There was a report that the Attorney General brought out in early January or December. That was the litigation review, which showed no systemic concern. At least, that was the headline. But clearly there was a change by ICBC coming forward, in terms of how they managed their litigation process.
These are the topics that, I think, are quite concerning, in terms of the pattern right now, of the way this has been approached, in the face of the concerns from members of the legal community. I look forward to discussing that further with the Attorney General in estimates and at other opportunities. I do thank the Attorney General today and the members of the ministry staff for that opportunity to have this discussion.
Hon. D. Eby: I can’t let go unchallenged the member’s suggestion that ICBC has a “meat chart.” They do not have a meat chart. That is incorrect; the member knows it’s incorrect. He shouldn’t repeat it.
That’s the end of my closing statement. I thank the member for his questions on the supplementary estimates, and I thank my staff for assistance.
ICBC has not been faring well in Court since their new strategy kicked in. I can appreciate politicians looking to distance themselves from it but to outright deny that a new policy has kicked in when assessing the claims of injured British Columbians is a turn for the bizarre. I will continue to report on judicial outcomes of recent cases as they come before the courts.
Earlier this month BC’s Attorney General surprised the legal community with changes to the BC Supreme Court Rules limiting the number of expert reports in motor vehicle injury prosecutions. The rule changes were brought without notice to the profession, were retroactive and ultimately will lead to ICBC paying for countless expert reports already in existence that the new rule deems useless.
Changes to the BC Supreme Court Rules require statutory consultation with the Chief Justice of the Court. It is unclear just how meaningful a consultation occurred but today’s press release makes it appear that the consultation may have been little more than window dressing.
Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, allowing a lawsuit against a Brazilian Jiu Jitsu instructor to proceed for injuries a student sustained in a tournament.
In the recent case (Peters v. Soares) the Plaintiff was a student of the defendant’s BJJ academy. The Plaintiff participated in a tournament where he sustained injury. He sued for damages alleging his instructor was negligent in allowing him “to compete against a participant in a higher weight class and in a competition where stand up skills were required….(when the plaintiff) had no experience or training in stand up skills“.
 Mr. Soares argues that because Mr. Peters’ claim of negligence is that the defendants knew he had no standing skills training, his claim arises from or is connected with his participation in the classes.
 I do not accept that argument. Mr. Peters’ claim asserts a duty of care owed in relation to the competition, not the classes. While Mr. Peters alleges that Mr. Soares and Carlson Gracie knew his ability and training did not extend to standing skills and standing skills were required for the competition, it is not the training or lack of it that he asserts was negligent; it is inviting him to participate in the competition given what they knew about his training or lack of it. It is likely that at a trial of the negligence issue, Mr. Peters will seek to prove that the defendants’ had knowledge of his lack of standing skills training at least in part because of their interaction during the classes, but that is not the same thing as alleging negligence in relation to or arising from the classes.
 In addition, there is no evidence that the competition was in Mr. Peters’ contemplation at the time he signed the membership agreement, and so there is no factual basis on which to find that Mr. Peters contemplated that the waiver provisions of the membership agreement would apply to the competition. The membership agreement was signed on September 23, 2015. Mr. Peters signed up for the competition on May 13 or 14, 2016, two weeks before he participated in it. There is no evidence that Mr. Peters was aware of or contemplated participating in the competition at the time he signed the membership agreement.
 Mr. Soares has not led evidence that he had the competition in contemplation when Mr. Peters signed the membership agreement. In his affidavit, Mr. Soares described the waiver terms of the membership agreement. All of Mr. Soares’ evidence about the membership agreement and its waiver terms specifically reference the classes. He does not reference the competition at all when deposing about the waiver terms of the membership agreement.
 I find that neither Mr. Peters nor Mr. Soares had the competition in contemplation when Mr. Peters signed the membership agreement.
 The first Tercon inquiry is answered in the negative. The membership agreement waiver does not relate to Mr. Peters’ claim regarding the injuries he allegedly sustained in the competition and so cannot exclude Mr. Peters’ claim.

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1. The order is missing an essential term about where, when or to whom the order applies.
2. The order employs unclear or overly broad language.
3. The external circumstances obscure the meaning of the order.
the evidence must prove contempt beyond a reasonable doubt.
the party must have intentionally done the act that the order prohibits or intentionally failed to do the act that the order compels.
"The elements of contempt, which must be established beyond a reasonable doubt, are the following: (a) the order alleged to have been breached must state clearly and unequivocally what should and should not be done; (b) the party alleged to have breached the order must have had actual knowledge of it; and (c) the party allegedly in breach must have intentionally done the act that the order prohibits or intentionally failed to do the act that the order compels": Business Development Bank of Canada v. Cavalon Inc. (Ont CA, 2017), para 17.
Procedures for civil contempt are governed by R60.11 of the Rules of Civil Procedure. The court can have reference to the Criminal Code for guidance (here in imposing a conditional sentence), but the Criminal Code provisions are not binding: Astley v Verdun (Ont CA, 2015).
60.11 (1) A contempt order to enforce an order requiring a person to do an act, other than the payment of money, or to abstain from doing an act, may be obtained only on motion to a judge in the proceeding in which the order to be enforced was made.
(2) The notice of motion shall be served personally on the person against whom a contempt order is sought, and not by an alternative to personal service, unless the court orders otherwise.
(3) An affidavit in support of a motion for a contempt order may contain statements of the deponent’s information and belief only with respect to facts that are not contentious, and the source of the information and the fact of the belief shall be specified in the affidavit.
(4) A judge may issue a warrant (Form 60K) for the arrest of the person against whom a contempt order is sought where the judge is of the opinion that the person’s attendance at the hearing is necessary in the interest of justice and it appears that the person is not likely to attend voluntarily.
and may grant leave to issue a writ of sequestration under rule 60.09 against the person’s property.
(6) Where a corporation is in contempt, the judge may also make an order under subrule (5) against any officer or director of the corporation and may grant leave to issue a writ of sequestration under rule 60.09 against his or her property.
(7) An order under subrule (5) for imprisonment may be enforced by the issue of a warrant of committal (Form 60L).
(8) On motion, a judge may discharge, set aside, vary or give directions in respect of an order under subrule (5) or (6) and may grant such other relief and make such other order as is just.
(9) Where a person fails to comply with an order requiring the doing of an act, other than the payment of money, a judge on motion may, instead of or in addition to making a contempt order, order the act to be done, at the expense of the disobedient person, by the party enforcing the order or any other person appointed by the judge.
(10) The party enforcing the order and any person appointed by the judge are entitled to the costs of the motion under subrule (9) and the expenses incurred in doing the act ordered to be done, fixed by the judge or assessed by an assessment officer in accordance with Rule 58.
There is no set procedure for a contempt hearing, but they are usually bifurcated into liability and penalty phases. The main factor on penalty is whether the party has since purged their contempt between the two stages (ie. since complied with the order). The reasons for bifurcation are due to the criminal purpose of the hearing, that having a single hearing runs the "risk that evidence relevant, material and admissible to liability, will be improperly applied to penalty or vice versa.": Boily v Carleton Condominium Corporation 145 (Ont CA, 2014), para 121-127.
"The Rules do not prescribe the form of contempt proceedings. However, as a general rule, proceedings are bifurcated into a liability phase — where the case on liability proceeds and a defence is offered — and, if liability is established, a penalty phase. In contempt proceedings, liability and penalty are discrete issues ..." Carey v Laiken (SCC, 2015), para 18.
"Without exhaustively outlining the circumstances in which a judge may properly revisit an initial contempt finding, I agree with the Court of Appeal that he or she may do so where the contemnor subsequently complies with the order or otherwise purges his or her contempt or, in exceptional circumstances, where new facts or evidence have come to light after the contempt finding was made." Carey v Laiken (SCC, 2015), para 66.
"Ordinarily, the period between a finding of contempt and the penalty hearing gives the contemnor an opportunity to purge his or her contempt. At the penalty hearing, if the contemnor has purged his or her contempt, as Belobaba J. noted, this is a significant mitigating factor with respect to the penalty imposed." Business Development Bank of Canada v. Cavalon Inc. (Ont CA, 2017), para 86.
Contumacious intent, or to intent to interfere with the administration of justice, is not a necessary requirement of the mental element. The mens rea is lower than that, but contumacious intent can go to heighten penalty: Carey v Laiken (SCC, 2015), para 38-39.
The contempt power is discretionary, and courts have consistently discouraged its routine use to obtain compliance with court orders to avoid cheapening the role and authority of the courts. It is an enforcement power of last resort. Carey v Laiken (SCC, 2015), para 36-37.
The purpose of a penalty for civil contempt is "to enforce compliance with a court order and to ensure societal respect for the courts": Boily v Carleton Condominium Corporation 145 (Ont CA, 2014), para 79.
"The court must assess the seriousness of the disrespect of the court, not the severity of any resulting harm.": Boily v Carleton Condominium Corporation 145 (Ont CA, 2014), para 129-130.
The purpose of contempt of court proceedings is to uphold the court's dignity, respect and process: Carey v Laiken (SCC, 2015), para 30.
"Because civil contempt engages issues of public law and the need to condemn acts which undermine the authority and dignity of the court, punishment has been recognized as a secondary purpose for sentencing in such cases." Business Development Bank of Canada v. Cavalon Inc. (Ont CA, 2017), para 81.
the reasonableness of a fine or incarceration.
The sentence must be proportional to the wrongdoing: Boily v Carleton Condominium Corporation 145 (Ont CA, 2014), para 91.
The most important factor in determining a penalty of civil contempt is deterrence, both specific and general: Boily v Carleton Condominium Corporation 145 (Ont CA, 2014), para 105.
"One such factor is the particular contemnor’s ability to pay lest the amount either be trivial or unduly punitive: ...": Boily v Carleton Condominium Corporation 145 (Ont CA, 2014), para 133.
Normal fines range for civil contempt from $1,500 to $5,000. Custodial sentences are rare and Canadian courts tend to be lenient, even where there the contempt involves substantial amounts of money. There are a few instances of fines of $100,000 or more involving large corporations in egregious situations, or unions with a large membership. Contempt motivated by personal gain is also an aggravating factor. In recent cases a "lengthy course of disobedience and where the contemnors have not purged their contempt" have resulted in more substantial penalties for contempt: Boily v Carleton Condominium Corporation 145 (Ont CA, 2014), para 108-111.
(f) comply with any other order that the judge considers necessary, and may grant leave to issue a writ of sequestration under rule 60.09 against the person’s property." Business Development Bank of Canada v. Cavalon Inc. (Ont CA, 2017), para 74.
"In civil cases, incarceration is rare. Ordinarily, a finding of contempt, together with a fine or some other order in relation to the litigation, is sufficient to gain compliance and restore the authority of the court." Business Development Bank of Canada v. Cavalon Inc. (Ont CA, 2017), para 82.
Business Development Bank of Canada v. Cavalon Inc. (Ont CA, 2017), para 84.
"A wilful flagrant breach of a single court order that shows a callous disregard for the court’s authority, or that causes significant prejudice to the other party may attract a jail sentence" Business Development Bank of Canada v. Cavalon Inc. (Ont CA, 2017), para 87.
"While each case is fact specific, incarceration has been imposed in numerous cases for failure to produce documents or corporate records" Business Development Bank of Canada v. Cavalon Inc. (Ont CA, 2017), para 88.
"Because incarceration is ordinarily a penalty of last resort, the court must also consider whether any other penalty short of incarceration would be a sufficient sanction for the gravity of the contempt, taking into consideration the sentencing principles applicable to civil contempt." Business Development Bank of Canada v. Cavalon Inc. (Ont CA, 2017), para 89.
The role of an appellate court in reviewing a sentence for contempt should be limited to intervening only where there has been an error in principle in arriving at the sentence or the sentence is clearly unfit.
Where the underlying order becomes 'ineffective', the course of action is not to disobey the contempt order, but to move for directions as soon as the problem becomes apparent or appeal: Boily v Carleton Condominium Corporation 145 (Ont CA, 2014), para 39.
"Where, as here, the impossibility of purging the contempt is a situation of the contemnors’ own making, it is not a mitigating factor" Business Development Bank of Canada v. Cavalon Inc. (Ont CA, 2017), para 86.
It is generally considered exceptional to find contempt in family law situations, but in extreme cases it will be ordered: Godard v Godard (Ont CA, 2015).
Criminal contempt has an element of public defiance which civil contempt lacks. Civil contempt is primarily coercive rather than punitive, however it does punish breach of a court order to deter both the contemnor and others. Carey v Laiken (SCC, 2015), para 31.
"A deliberate breach of a court order may constitute either a civil or a criminal contempt. A criminal contempt requires, in addition to a deliberate violation of a court order, an element of public defiance calculated to lessen societal respect for the courts." Business Development Bank of Canada v. Cavalon Inc. (Ont CA, 2017), para 76.
Reliance on legal advice does not shield a party from a finding of contempt. Carey v Laiken (SCC, 2015), para 44.
 Furthermore, the court was pointed to no authority for the requested relief. On the assumption that Rushlade was relying on the dissenting judgment of Laskin J.A. in Dickie v. Dickie, (2006), 2006 CanLII 576 (ON CA), 78 O.R. (3d) 1 (C.A.), at para. 87, affirmed by the Supreme Court of Canada:  1 S.C.R. 346, 2007 SCC 8 (CanLII), at para. 6, the test set down in that authority had not been met. According to Dickie, the court has a discretion to refuse to hear a litigant, who has wilfully breached a court order, until the litigant has cured the breach. Even if Dr. Gerber’s breach of the LaForme J.A. order was wilful, he cured it by filing his factum (albeit past the specified deadline).

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Nothing stings worse than losing a winning claim or defense because of a mistake.
In the course of reading several thousand published appellate decisions in federal courts for 15 volumes of “Equal Employment Law Update,” published by the Bureau of National Affairs (now Bloomberg BNA) for the American Bar Association Section of Labor and Employment Law from 1996 to 2007, and in the course of reading many hundreds more decisions for the annual updates on employment law I’ve done for the Arizona and Pennsylvania state bars, the National Employment Lawyers Association, and the American Law Institute CLE, I have been struck by the number of ways to lose a case besides, well, having a losing claim or defense.
was raised for the first time in a petition for rehearing of the panel decision.
Not all these situations are fatal. Opposing counsel who know what they are doing will sometimes persuade their clients to agree to waive the waiver. I’ve done it myself.
One situation in which this happens is when the law has recently changed, or such compelling new facts have emerged, that it strikes even opposing parties and counsel that it would be unfair not to excuse the waiver. Attorneys should not have to have a court tell them it would be unfair, unless they need to do so to protect themselves from an untrustworthy client who will then use this as an excuse to sue their own counsel if the case goes badly.
Another situation in which this happens is when the law on the question at issue is sufficiently unclear that a case can be diverted onto side rails for years because of the waiver question, and can even result in an otherwise unnecessary appeal.
Contrary to the usual assumptions of plaintiffs lawyers, defendants do not always embrace delay as a means of wearing out plaintiffs and driving down their demands. Corporate and agency officials often want to bring cases to a quick end, to avoid the distraction of senior officials and to control the risks their organizations face. Plaintiffs counsel can test my perception by asking defense lawyers of their acquaintance what percentage of them would like to see cases last for years and be taken all the way up to the U.S. Supreme Court. I suspect the response will usually be a wince.
A third situation in which this happens is when the waiver is not dispositive of the opponent’s entire case or defense, and the bulk of the case will survive despite a waiver. Highly skilled counsel do not contest every conceivable point, and the game may not be worth the candle to the opponent.
Excusing an opponent’s waiver can sometimes be a smart strategy. Cases are more quickly and satisfactorily resolved when there is good will among the opposing parties and their counsel, and a sense of trust in being treated fairly. Excusing a waiver is a confidence-building measure that can smooth the path to an agreement that lets everyone get on with their lives.
Counsel faced with an opponent’s waiver should also consider that opposing counsel may be in a difficult situation with her or his client because of counsel’s mistake. Clients are not always benefited when there is infighting on the other side. Infighting on one side can stall everything, and trigger acrimony that makes litigating and resolving the case more difficult. Removing the other side’s internal irritant may help our clients even more than the other side.
These are all exceptions, of course. In the usual situation, both plaintiffs and defendants are best served by enforcing the other side’s waiver. If the other side has engaged in deceit or oppressive tactics, I suspect that both plaintiffs and defendants are always best served by enforcing the deceitful or oppressive side’s waiver.
Sometimes, of course, a court will excuse a waiver. As the cases in the endnotes demonstrate, however, courts are closely attuned to prejudice suffered by the opposing party and often will not excuse a party’s waiver.
If the opposing party has in its conduct or litigation positions managed to irritate the court sufficiently, the court may simply blow past the question of waiver and even allow a post-verdict amendment of a complaint to encompass relief awarded by the jury that could not have been entered in a judgment under the original complaint.
This topic has teeth even in advance of a judicial determination of waiver, and even in advance of either party’s awareness of its waiver.
When I am acting as a mediator, I cannot ethically tell the plaintiff that she or he is overlooking a powerful additional claim or way of shaping the existing claim, and cannot ethically tell the plaintiff that she or he is overlooking a major hole in the employer’s defense.
Similarly, I cannot ethically tell the defendant that it is overlooking a powerful defense or a major flaw in the plaintiff’s case.
What I can do for each side is to point out the particular risks of continued litigation. My most persuasive tool with a recalcitrant party, where the opportunity exists, is to point out that the other side has not yet realized something that might greatly strengthen its position, or require it to dig expensively deeper and fight expensively harder, but that the other side still has time to realize the problem and correct it if the case does not settle.
The better the other side’s counsel, the more persuasive I can be that the penny will eventually drop, making any resolution much more expensive either in increased settlement value or increased transaction costs.
For now, the takeaway is that it is important for attorneys on both sides of a case to do some serious thinking about the issues in the beginning of the case, and not wait until it is too late. Few things are more dangerous than concluding, too early, that a claim or defense is a surefire “slam dunk.” Excessive confidence is seldom good for one’s client.
Richard T. Seymour is an arbitrator and mediator, and negotiator and litigator at the Law Office of Richard T. Seymour PLLC in Washington, D.C.
 E.g., EEOC v. Memphis Health Center Inc., 526 Fed.Appx. 607, 611 n. 1 (6th Cir. 2013) (ADEA and Equal Access to Justice Act claim by employer for attorneys’ fees award against EEOC) (employer’s waiver) (“MHC has waived any argument that the age discrimination claim was not substantially justified because it failed to object to the magistrate judge’s findings on this point.”); Self v. I Have A Dream Foundation-Colorado, 552 Fed.Appx. 782, 787 (10th Cir. 2013) (ADA) (“‘We have adopted a firm waiver rule when a party fails to object to the findings and recommendations of the magistrate [judge]. The failure to timely object to a magistrate [judge]’s recommendations waives appellate review of both factual and legal questions.’ Duffield v. Jackson, 545 F.3d 1234, 1237 (10th Cir.2008) (citation, brackets, and internal quotation marks omitted). Exceptions exist when: (1) the district court does not notify a pro se litigant of the time period for objection and the consequences of a failure to object, and (2) review is required in the interests of justice. Id.”).
… In determining whether a party has waived its right to arbitration, this court examines several factors: (1) whether the party’s actions are inconsistent with the right to arbitrate; (2) whether “the litigation machinery has been substantially invoked” and the parties “were well into preparation of a lawsuit” before the party notified the opposing party of an intent to arbitrate; (3) whether a party either requested arbitration enforcement close to the trial date or delayed for a long period before seeking a stay; (4) whether a *468 defendant seeking arbitration filed a counterclaim without asking for a stay of the proceedings; (5) “whether important intervening steps [e.g., taking advantage of judicial discovery procedures not available in arbitration] had taken place”; and (6) whether the delay “affected, misled, or prejudiced” the opposing party. Reid Burton Constr., Inc. v. Carpenters Dist. Council of S. Colorado, 614 F.2d 698, 702 (10th Cir.), cert. denied, 449 U.S. 824, 101 S.Ct. 85, 66 L.Ed.2d 27 (1980).
We have explained that “a party may waive an agreement to arbitrate by engaging in two courses of conduct: (1) taking actions that are completely inconsistent with any reliance on an arbitration agreement; and (2) ‘delaying its assertion to such an extent that the opposing party incurs actual prejudice.’” Hurley, 610 F.3d at 338 (quoting O.J. Distrib. Inc. v. Hornell Brewing Co., 340 F.3d 345, 356 (6th Cir.2003)); see Gen. Star Nat’l Ins. Co. v. Administratia Asigurarilor de Stat, 289 F.3d 434, 438 (6th Cir.2002).
 E.g., Holder v. Illinois Dept. of Corrections, 751 F.3d 486, 493 (7th Cir. 2014) (FMLA) (defendant’s waiver) (“Once the State and Holder entered into a stipulation about the sixtieth day, that issue had been removed from the jury. The State could have appealed the summary judgment holding on this matter (more on this below), but instead made the tactical decision to argue that its agreement to pay rendered the issue moot. When a party selects among arguments as a matter of strategy, he also waives those arguments he decided not to present.”); Connelly v. Metropolitan Atlanta Rapid Transit Authority, 764 F.3d 1358, 1365 (11th Cir. 2014) (Title VII and § 1981; plaintiff’s argument that defendant waived attorney-client privilege was itself waived) (“Connelly stipulated before trial that O’Neill would testify about a narrow set of issues and that Connelly would not seek to elicit any privileged communications from O’Neill at trial.”).
 E.g., Garayalde-Rijos v. Municipality of Carolina, 747 F.3d 15, 22 (1st Cir. 2014) (Title VII and Puerto Rican law) (“Similarly, Garayalde–Rijos’s failure to object specifically to the magistrate judge’s recommendation that her post-hire Title VII discrimination claim against Carolina be dismissed for lack of exhaustion of administrative remedies waives her right to this court’s review of that claim.”); Self v. I Have A Dream Foundation-Colorado, 552 Fed.Appx. 782, 784-85 (10th Cir. 2013) (ADA) (“The Plaintiff bases her first argument largely on the cover page to the Foundation’s ‘Form 990,’ which purported to list 26 employees of the Foundation. But Ms. Self did not submit this page in response to the summary judgment motion; instead, she submitted it in her objection to the magistrate judge’s report. R. at 1136. As a result, the district judge declined to consider the form. That ruling was permissible. See Fed.R.Civ.P. 72(b)(3).”).
 E.g., In re Community Bank of Northern Virginia, 622 F.3d 275, 288 n. 12 (3d Cir. 2010) (home equity lending case) (“Because the Objectors did not challenge the appointment until oral argument before Judge Ziegler — and despite having six weeks between receiving notice of the appointment and the argument — they have waived this challenge, and we decline to address it. See, e.g., Fajardo Shopping Ctr., S.E. v. Sun Alliance Ins. Co. of P.R., 167 F.3d 1, 6 (1st Cir.1999).”).
 E.g., Rivera-Diaz v. Humana Insurance of Puerto Rico Inc., 748 F.3d 387, 390 (1st Cir. 2014) (ADA and Puerto Rican law) (“While it is true that matters that are raised for the first time in a motion for reconsideration are usually deemed waived … everything depends on context.”); Smith v. Aegon Companies Pension Plan, 769 F.3d 922, 933 (6th Cir. 2014) (ERISA benefits) (“But Smith did not raise this argument until his … Rule … 59 motion to alter, vacate, or amend the district court’s judgment, and he has waived it.”) (footnote omitted).
 E.g., Ray v. United Parcel Service, 587 Fed.Appx. 182, (5th Cir. 2014) (FMLA) (defendant’s waiver) at p. *5 (“Turning to the third element, UPS challenges Ray’s prima facie showing of causation for the first time on appeal. Since UPS did not assert any argument against prima facie causation before the district court, UPS has waived this challenge on appeal. UPS acknowledges that the lower court did not specifically discuss causation in its analysis, but attempts to justify our consideration of its causation challenge by relying on the principle that we may affirm summary judgment ‘for any reason supported by the record.’ Equally well-settled, however, is the principle that the scope of appellate review on a summary judgment order is limited to matters that the parties presented to the district court, such that the district court has an opportunity to rule on the challenge. Though the district court necessarily and generally addressed Ray’s causation showing as part of the later stages of the mixed-motive analysis, a point advanced by UPS, the district court made no such ruling at the prima facie stage because UPS did not make prima facie causation an issue, an omission which was expressly noted by the district court. Of UPS’s arguments on appeal, only UPS’s arguments against comparators were presented to the district court, but then only as rebuttal to Ray’s pretext showing. Based on the principle that a party “must press and not merely intimate the argument during the proceedings before the district court,” we will not re-cast these elsewhere-asserted, comparator references as arguments against prima facie causation. Accordingly, UPS has waived any argument on appeal that Ray cannot establish prima facie causation.”) (emphasis supplied; footnotes omitted); Tank v. T-Mobile USA Inc., 758 F.3d 800, 803 (7th Cir. 2014) (§ 1981) (“this argument is waived because it was not raised below.”); Nichols v. Michigan City Plant Planning Dept., 755 F.3d 594, 600 (7th Cir. 2014) (Title VII) (“The non-moving party waives any arguments that were not raised in its response to the moving party’s motion for summary judgment.”) (dictum); Dalpiaz v. Carbon County, 760 F.3d 1126, 1131-32 (10th Cir. 2014) (FMLA) (Plaintiff waived FMLA retaliation claim by raising only an FMLA interference claim below); Ridgell-Boltz v. Colvin, 565 Fed.Appx. 680, 683 n.3 (10th Cir. 2014) (ADEA and Title VII) (“This argument is waived, however, because it was not advanced in the district court, nor does it appear in Plaintiff’s opening brief.”).
 E.g., Kroshnyi v. U.S. Pack Courier Services Inc., 771 F.3d 93, 106 n.23 (2d Cir. 2014) (FLSA, FUTA, New York Labor Law, etc.) (“Because plaintiffs failed to object to the jury instructions in the court below, however, they have waived this argument on appeal … and we perceive no manifest injustice that would warrant reaching this waived argument here.”).
 E.g., Kleehammer v. Monroe County, 583 Fed.Appx. 18, 20 (2d Cir. 2014) (Title VII) (“Kleehammer’s timely filed notice of appeal also expressed an intent to appeal from the Rule 11 sanction imposed on counsel. Because the district court did not sanction Kleehammer, there is no case or controversy with respect to her. ‘Where an award of sanctions runs only against the attorney, the attorney is the party in interest and must appeal in his or her name.’”).
 E.g., Weatherly v. Alabama State University, 728 F.3d 1263, 1273 (11th Cir. 2013) (Title VII; defendant’s waiver) (“ASU does not, however, make any arguments on this point, but rather, incorporates by reference the arguments it made before the district court. … Incorporating by reference to earlier filings is not a permissible way to present arguments to this court. … (“By attempting to ‘incorporate’ all of the arguments it made below, and thus exhorting this panel to conduct a complete review of its district court brief, [the party] … makes a mockery of our rules governing page limitations and length[.]”). ASU has therefore waived this argument as well.”) (citation omitted).
 E.g., Lydon v. Local 103, Int’l Bhd. of Elec. Workers, 770 F.3d 48, 53 (1st Cir. 2014) (LMRA, LMRDA) (“ The problem for Lydon is that his initial brief never specifically identifies the “numerous” papers that the judge should have pondered but did not. And it never explains how these unnamed documents fit … let alone explain how they could have pushed his complaint across the plausibility threshold. Given these circumstances, we hold the argument waived.”); Medina-Velazquez v. Hernandez-Gregorat, 767 F.3d 103, 109 n.6 (1st Cir. 2014) (First Amendment political discrimination) (defendants’ waiver) (“Appellees have not developed, and thereby waive, any argument regarding the first element”); Willis v. Cleco Corp., 749 F.3d 314, 319 (5th Cir. 2014) (Title VII and § 1981) (“This claim is waived because it is inadequately briefed.”); Boegh v. EnergySolutions, Inc., 772 F.3d 1056, 1063 (6th Cir. 2014) (whistleblower under Energy Reorganization Act and False Claims Act) (“Second, regarding the FLSA, Vander Boegh fails to fully develop this argument and therefore has abandoned it.”); Matthews v. Waukesha County, 759 F.3d 821, 826 (7th Cir. 2014) (Title VII and § 1981) (“It is not the province of the appellate court to search the record in order to discover the factual underpinnings of an argument, and we will not consider arguments that are not supported by relevant law. … This argument is waived.”).
 E.g., Kleehammer v. Monroe County, 583 Fed.Appx. 18, 20 (2d Cir. 2014) (Title VII) (“On appeal, she also waived any argument that defendants punished her rather than her coworkers, as she did not address this issue in her appellate brief.”); Reveles v. Napolitano, __ Fed.Appx. __, 2014 WL 7004789 (5th Cir. Dec. 12, 2014) (No. 13-51203) (Title VII) (“Because Reveles did not brief the defenses of equitable tolling and estoppel, such arguments have been waived.FN19” and “FN19. ‘Although we liberally construe the briefs of pro se appellants, we also require that arguments must be briefed to be preserved.’”).
 E.g., Velazquez-Perez v. Developers Diversified Realty Corp., 753 F.3d 265, 278-79 (1st Cir. 2014) (Title VII) (“Velázquez files no reply brief responding to this argument. Nor does Velázquez’s opening brief develop or even suggest any counter-argument. Our task is not to go through a record and see if a losing party may have developed an argument that it did not raise on appeal.”).
 E.g., Emory v. United Air Lines Inc., 720 F.3d 915, (D.C.Cir. 2013), cert. denied, 134 S.Ct. 1520 (2014) and sub nom. Adams v. United States, 134 S.Ct. 1540 (2014) (Fair Treatment for Experienced Pilots Act, Due Process Clause, and DFR) (“We accordingly find that the Emory plaintiffs waived their BFOQ arguments on appeal, having raised them for the first time in their reply brief.”); KLB Industries Inc. v. NLRB, 700 F.3d 551, 558-59 (D.C.Cir. 2012) (NLRA) (“To the extent KLB now contends the dividing line between Nielsen’s “open your books” disclosure obligation and the instant information request is arbitrary and capricious, that argument is waived because it first appeared in the company’s reply brief.”); Rives v. Whiteside School Dist. No. 115, 575 Fed.Appx. 678, 680 (7th Cir. 2014) (Title VII and § 1981) (“In her reply brief Rives challenges for the first time the dismissal of her claims of sexual harassment and retaliation, but she waived these arguments by not mentioning them in her opening brief.”); Johnson v. Orkin LLC, 556 Fed.Appx. 543, 545 (7th Cir. 2014) (Tile VII and Illinois law) (“In any case, Johnson waived this argument on appeal by raising it for the first time in his reply brief, giving Orkin no chance to respond.”); Ridgell-Boltz v. Colvin, 565 Fed.Appx. 680, 683 n.3 (10th Cir. 2014) (ADEA and Title VII) (“This argument is waived, however, because it was not advanced in the district court, nor does it appear in Plaintiff’s opening brief.”).
 E.g., Maloy v. Ballori-Lage, 744 F.3d 250, 254 (1st Cir. 2014) (First Amendment) (“We also reject Maloy’s claim, presented at oral argument, that Díaz Ogando retaliated against her by telling her that the application required materials that Maloy argues were not in fact required. Maloy did not so argue in opposing the motion to dismiss or in her brief on appeal. See, e.g., Ortiz v. Gaston Cnty. Dyeing Mach. Co., 277 F.3d 594, 598 (1st Cir. 2002) (“[F]ailure to brief an argument will result in waiver for purposes of appeal.”).”); Holland v. Gee, 677 F.3d 1047, 1065-66 (11th Cir. 2012) (Title VII and Florida Civil Rights Act) (court will not consider issue first raised at oral argument).
 Ross v. Gilhuly, 755 F.3d 185, 192 n. 11 (3d Cir. 2014) (FMLA) (“In an April 17, 2014, letter filed pursuant to Rule 28j of the Federal Rules of Appellate Procedure, Ross recasts his interference claim to assert that he had somehow been discouraged from taking FMLA leave. In addition to Ross having waived that argument by failing to advance it in briefing …”).
 E.g., Shields v. Illinois Dept. of Corrections, 746 F.3d 782, 800-01 (7th Cir. 2014), petition for cert. filed, 83 USLW 3306 (Oct. 13, 2014) (Nos. 14-476, 14A23) (§ 1983 claim for denial of medical care) (Tinder, J., concurring: “Our sister circuits that have spoken on this question agree with our determination on this matter: in general, new issues raised in petitions for rehearing are not eligible for review. Numerous circuits hold that an issue raised for the first time in a petition for rehearing has been waived and cannot be reviewed. Some hold that this practice constitutes forfeiture rather than waiver. At least two circuits opt for a flexible waiver principle, where the court occasionally chooses to consider arguments raised for the first time in a petition for rehearing, in extraordinary cases. But no case—in our circuit or elsewhere—allows for a party to freely raise a new theory of its case in a petition for rehearing, one that it has repeatedly declined to raise in the district court or in its briefs before us.”) (footnotes omitted).
By April 4, 2001, Baker’s treating psychiatrist had diagnosed her with major depressive disorder, single episode, and post-traumatic stress disorder and panic disorder. Baker was hospitalized on April 4, 2001, because of an overdose. Baker’s brother testified he went to her house and found her “lifeless” in bed. Baker was transferred to a psychiatric unit where her psychiatrist classified the event as a suicide attempt and restricted Baker from going back to work because the presenting factor in her condition was her work environment.


Our first case for today, Frank v. Gaos (No. 17-961), is a bit of a letdown. Three plaintiffs brought a putative class action on behalf of basically every American who uses the internet against Google, alleging that it violated the Stored Communications Act, 18 U.S.C. § 2701, by transmitting Google searchers’ search terms to webpages whenever a user visited a page following a successful search. Google moved to dismiss for lack of standing two times and lost. It tried a third time, but then decided to withdraw the motion in favor of a class-wide settlement. Google agreed to make some boilerplate disclosures about its practices, and it agreed to pay $8.5 million. But because the class consisted of nearly everyone, it was plainly not feasible to send each American their paltry share of this payment. (The cost of the stamp would likely exceed each person’s settlement check.) So instead, the agreement used a cy pres settlement, meaning that about three-fourths of the money would go to recipients, selected by the plaintiffs’ lawyers and Google, who would use the money to “promote public awareness and education, and/or to support research, development, and initiatives, related to protecting privacy on the internet.” The rest of the money, more than $2 million, would go to the plaintiffs and their lawyers.
The district court preliminarily approved this settlement as fair and reasonable under Federal Rule of Civil Procedure 23(e), as it is required to do for all class-action settlements. But Ted Frank of the Center for Class Action Fairness, an advocacy group that objects to class-action settlements it thinks are unfair and abusive, did what he does best: He objected to the settlement as unfair and abusive. The district court nonetheless gave the settlement final approval. Frank appealed, but a divided Ninth Circuit affirmed. The case was thus poised to address the propriety of cy pres settlements like these, one of the hot topics in class-action law as late. Many, like Frank, see this kind of settlement as a give-away to plaintiffs’ lawyers, one that provides almost no benefit to the class and merely serves as cover to award plaintiffs’ lawyers significant attorneys’ fees. Others see it as one of the only practical ways to settle claims involving large classes with minimal individual damages, where distributing any damage award to class members is administratively impossible.
These questions will have to wait another day. After reading the briefs, particularly that of the Solicitor General as amicus curiae supporting neither party, the Court decided that Google might have been right about standing after all. Or, more accurately, subsequent authority—the Supreme Court’s recent decision in Spokeo v. Robbins (2016)—raised a substantial question about the plaintiffs’ standing to sue at all. These questions had never been addressed, because Google’s last motion to dismiss was withdrawn before Spokeo was decided. So in a short per curiam decision, the Court remanded to the lower courts to work out whether the plaintiffs have standing. Cy pres lives another day.
If and when cy pres returns to the Court, it’ll have Justice Thomas to reckon with. He penned a solo dissent explaining that he would have reached the merits and reversed. “Whatever role cy pres may permissibly play in disposing of unclaimed or distributable class funds,” Thomas argued, “cy pres payments are not a form of relief to the absent class members and should not be treated as such (including when calculating attorneys’ fees). Here, “because the class members . . . received no settlement fund, no meaningful injunctive relief, and no other benefit whatsoever in exchange for the settlement of their claims,” Thomas would have held that it was error to certify the class and approve the settlement.
Next up is something you don’t see every day in the Supreme Court. If you remember only one thing from your Federal Courts class in law school, it’s probably that after Erie Railroad Co. v. Tompkins (1938), there’s no such thing as federal common law. But if you remember two or three things from Federal Courts, you might also recall that there still is federal common law, but only in certain limited areas. One of those areas is maritime tort cases, where the U.S. Supreme Court acts as an ordinary common-law court, doing ordinary common-law court things like make rules about when the manufacturers of products have a duty to warn consumers about the products’ potential dangers. In Air & Liquid Systems Corp. v. Devries (No. 17-1101), the Court did just this. And perhaps because of the novelty of this common-law task, the Court’s decision broke down on unusual grounds, with the Chief and the Court’s four more-liberal justices joining an opinion by Justice Kavanaugh, establishing a somewhat broader rule for manufacturers’ duty to warn than that favored by the three conservative dissenters of Justices Gorsuch, Thomas, and Alito.
Air & Liquid Systems made certain equipment for U.S. Navy ships. The equipment—pumps, blowers, and turbines—required asbestos insulation or asbestos parts to function. But Air & Liquid did not supply asbestos with its products; instead, it delivered the equipment “bare-metal,” and the Navy later added the asbestos. Decades later, two Navy servicemen developed cancer and sued. By that point, the plaintiffs had limited recourse: the asbestos manufacturers were bankrupt, and the Navy was likely immune. So they focused their energies on Air & Liquid, alleging that it negligently failed to warn them of the dangers of asbestos in their integrated products. In response, the manufacturers argued that they could not be held liable for harms caused by “later-added third-party parts.” The district court agreed. The Third Circuit did not.
Enter SCOTUS. Like the Goldilocks of maritime tort law, Justice Kavanaugh tried on three options for size. Option A: Impose liability whenever it was “foreseeable” that a product could be used with another, dangerous, product or part. Nope, too hard (on the manufacturers—mere foreseeability would impose sweeping burdens and uncertain duties). Option B: Draw a strong line in the sand. If a manufacturer did not make, sell, or distribute the part, it is not liable, period. But no, this one was too soft (on a company that had to know an integrated product would be dangerous). Onward, then, to Option C: “[A] manufacturer does have a duty to warn when its product requires incorporation of a part and the manufacturer knows or has reason to know that the integrated product is likely to be dangerous for its intended uses.” Just right. After all, the product manufacturer is well-placed to know the nature of the ultimate product and its associated risks. At the same time, the added burden on this manufacturer is light, as a manufacturer has a duty to warn regarding its own product already, and this rule would impose an additional duty to warn only when the product requires a dangerous part “in order to function as intended.” Finally, Justice Kavanaugh noted this rule was especially appropriate in the maritime tort context, where the law has always recognized a “special solicitude” for the welfare of sailors, particularly veterans and their families. (The servicemen themselves had unfortunately died during the course of the litigation.) Accordingly, it made sense to hold manufacturers to a slightly higher standard than might be applicable in other contexts.
The dissenters, led by Justice Gorsuch, felt the majority was out to sea. Irked by the prospect of a duty to warn imposed decades after the fact—when all that was left for Air & Liquid to do was pay—Justice Gorsuch opined that “[p]eople should be able to find the law in the books; they should not find the law coming upon them out of nowhere.” The rule crafted by the majority, he suggested, has no meaningful roots in common law, which dictates that a manufacturer has no duty to warn about a third party’s products. Better to hew to this approach, which is simple, accords with consumer expectations, and runs a lesser risk of overwhelming people with confusing fine print.
Our last opinion for today’s issue is Washington State Department of Licensing v. Cougar Den, Inc. (No. 16-1498), a case that is a bit more complicated, though no less interesting, than the others. It concerns the rights of the Yakama Nation of Indians under an 1855 treaty with the U.S. government, in which the government purchased 10 million acres of land from the Nation (roughly one-fourth the present State of Washington) for a mere $200,000. But the treaty reserved for the Yakamas certain rights, including the right “in common with citizens of the United States, to travel upon the public highways.” The Washington Supreme Court held that this provision barred the state taxing authorities from imposing certain gas import taxes on a corporate entity created by the Nation to transport gas to its reservation for sale in retail stations. A 5-4 majority agreed, with a different conservative justice this time, Justice Gorsuch, joining the Court’s four liberals. But the majority split as to the rationale. And the Court’s four other justices penned (though not all joined) two separate dissents.
The easiest place to begin is with the three-justice “majority” opinion by Justice Breyer, joined by Justices Sotomayor and Kagan. This opinion closely followed the Washington Supreme Court’s analysis, resting on two points. First, the Treaty: On a straightforward reading, the right “in common with citizens of the United States, to travel upon the public highways” seems narrow, suggesting perhaps only that the government cannot ban members of the Yakama nation from public highways. (Just how Justice Kavanaugh read it in dissent.) But precedent has long interpreted this treaty provision quite a bit differently, in part because of the special way the Court interprets treaties with Indian tribes. These treaties must be interpreted according to how the tribe would have understood the treaty at the time. After all, the treaties with tribes were often imposed on the tribes by force and written in a language the tribes could not even understand. In 1855, the Yakama Nation was a famously commercial tribe, with trading networks stretching widely throughout the West. Since 1905, the Supreme Court has therefore interpreted this particular language as intended to preserve the Yakamas’ right to travel more broadly, including their right to transport goods to and from the reservation for commercial purposes. Under this interpretation, the Treaty essentially prohibits the United States or the states from imposing burdens on members of the Tribe’s travel by public highway for commercial purposes.
Next, the details of the Washington tax: The Washington Supreme Court interpreted the import tax at issue not like a typical gas tax, which falls upon the fuel. Instead, the strange way the tax statute was written (we’ll spare you the details) meant that Washington taxed the act of importing fuel into the state, but only when such transportation was by means of road or rail. (Importation by other means, like pipeline or ship, was handled differently, and in some sense exempt.) Under this statute, the Washington taxing authorities had tried to tax Cougar Den, a special corporation established under the laws of the Yakama Nation and owned by the Tribe, that purchased gasoline in Oregon and trucked it via public highway through Washington for sale on the Yakama reservation. Imposing a tax on Cougar Den for these activities was just what the 1855 Treaty prohibited: It was burdening members of the Tribe’s ability to transport commercial goods to the reservation by public highway. But the majority was careful about how far this would go: Its decision contained lots of caveats and distinctions that make it unclear how its rationale might apply to other taxes or regulations or different factual contexts.
Justice Gorsuch, joined by Justice Ginsburg, concurred in the result, but with a different, perhaps broader, rationale. In his view, the Yakamas understood the Treaty to protect an even stronger right. Based on some previous cases, the Washington trial court had found that the Yakamas understood the treaty as not simply prohibiting the government from burdening the act of transporting goods by public highway; it prohibited any licensing or permitting fees related to the transportation of goods for the Tribe to and from the reservation. Given the history of the Yakama Nation’s way of life, Justice Gorsuch found these factual findings well supported. But, more importantly, the state had not challenged them on appeal, so it was bound by them now. These factual findings made close scrutiny of the details of the Washington tax statute largely irrelevant, because no matter how one works out the nuts-and-bolts of the statute, it was plainly imposing licensing or permitting fees on members of the Tribe for transporting goods to the reservation by public highway. That said, Justice Gorsuch also included a number of caveats, making it less than clear how even this broader reading of the Treaty will apply to other factual contexts (a reading that might not even apply for the additional reason that the state might challenge these factual conclusions the next time around).
This leads to two dissents, each addressed to a separate leg of Justice Breyer’s (and the Washington Supreme Court’s) two-leg stool. First, Chief Justice Roberts, joined by the three other dissenters, disagreed with the majority’s reading of the Washington tax statute. In his view, this was nothing more than a run-of-the-mill gas tax, one charged on the fuel Cougar Den is trucking to the reservation, not the manner in which it does so. This reading is not without some merit on a plain reading of the law, but it was not as though Justice Breyer was the first to come up with this arguably strained reading: He was just agreeing with the interpretation reached by Washington’s own Supreme Court, which ordinarily would be entitled to some deference when it comes to interpreting the state’s own laws. Perhaps this interpretation was simply too strained for deference. (The Chief Justice doesn’t say much about this point, so we can’t really know. But he might not be alone—perhaps the explanation for the concurrence is that they too were uncomfortable with the Washington Supreme Court’s odd reading of its own statute.) Thus, without expressly disagreeing with the majority’s interpretation of the scope of the Treaty, the Chief Justice concluded this tax fell outside the Yakamas’ reserved rights, because a tax on a good being transported is not the same as a tax on the act of transportation.
Justice Kavanaugh, joined only by Justice Thomas, took a stronger line. In his view, the Treaty’s preservation of the right to use the public highways “in common with citizens of the United States” established nothing more than a right to be free from discrimination; it did not preserve some broader right to travel free of generally applicable burdens like taxes. These Justices seemed to be adopting (without quite arguing for) a plain-reading approach to treaty interpretation, an approach that is hard to square with how the Supreme Court has generally interpreted treaties with Indian tribes, including in cases involving this very treaty.
In Mathena v. Malvo (No. 18-217), the Court will decide whether the Fourth Circuit erred in concluding that the Court’s decision in Montgomery v. Louisiana (2016), which concluded that its previous decision in Miller v. Alabama (2012) announced rule of constitutional law that must be given retroactive effect, also modified and substantively expanded the rule announced in Miller.
In Ramos v. Louisiana (No. 18-5924), the Court will decide whether the Fourteenth Amendment fully incorporates the Sixth Amendment guarantee of a unanimous verdict.
That’s all for now. We’ll be back early next week with summaries in two more cases, Obduskey v. McCarthy & Holthus LLP (No. 17-307), and Nielsen v. Preap (No. 16-363), and updates on any early-week orders.


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Effective May 1, 2013, oral arguments are posted on the website of the Tennessee Court System 20 days after oral argument and are available to the general public. A party to an appeal may file a motion with the appellate court to exclude the oral argument from posting on the internet for good cause shown. See Supreme Court Rule 30. Examples of good cause include a showing that the posting of audio recordings would create a safety threat for a party, witness, lawyer, or other individual involved in the litigation, or a showing that private or embarrassing information affecting a juvenile was disclosed in oral argument. That motion must be filed no later than 10 days after the oral argument is heard.
Audio disc recordings of oral arguments after February 2007 are available at a cost of $20.00. These recordings are in a "wav" format and can be played on any personal computer or other electronic device that has Windows Media Player. Persons interested in obtaining such discs may contact the Appellate Court Clerk's Office at 615-741-2681 or 401 7th Avenue North, Nashville, Tennessee 37219.
Audio devices are available for the hearing impaired who wish to attend an oral argument. Such requests should be made to Jim Hivner, the Clerk, at 615-741-1314 well in advance of the argument.
Dana Moulton, et al. v. Delores Moulton, et al.
McCall Brister v. HCA Health Services of Tennessee, Inc., et al.
Hosie Johnson, et al. v. Nick Dattilo, et al.
Ashraf M. Saweres v. Royal Net Auto Sales, Inc., et al.
Kenneth W. Taylor v. Lawrence County, et al.
Jeff Dayton, et al. v. James Ackerman, et al.
Leonard Gamble v. Sputniks, LLC, et al.
Donna Clark v. Sputniks, LLC, et al.

matches: v. v. v. v. v. v. v. v.


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March filings were slow, presumably as NPEs waited for the TC Heartland decision from SCOTUS. Frequent filers included Checkerboard Intellectual Property, Electronic Communication Technologies, Hawk Technology, Landmark Technology, Location Services IP, Soverain, Symbology and Venadium.
M2M Solutions LLC v. Amazon.com, Inc., (D. Del.).
Patents: 8,504,007 (System and method for remote asset management); 8,577,358 (System and method for remote asset management); and 8,577,359 (System and method for remote asset management).
Scanning Technologies Innovations, LLC v. Retail Pro International, LLC, (E.D. Tex.) (multiple cases).
Patent: 9,053,498 (Systems and methods for indicating the existence of accessible information pertaining to articles of commerce).
Checkerboard Intellectual Property, LLC v. CaféPress Inc., (D. Del.) (multiple cases).
Patent: 6,529,214 (Interactive print job display system and method).
Electronic Communication Technologies, LLC v. Batteries Online, Inc., (S.D. Fla.; N.D. Ind.) (multiple cases).
Patent: 9,373,261 (Secure notification messaging with user option to communicate with delivery or pickup representative); 7,319,414 (Secure notification messaging systems and methods using authentication indicia); 7,876,239 (Secure notification messaging systems and methods using authentication indicia); and 9,373,261 (Secure notification messaging with user option to communicate with delivery or pickup representative).
Hawk Technology Systems, LLC v. BNSF Railway Company, (E.D. Tex.; D. Conn.; D. Ariz.) (multiple cases).
Patent: RE 43,462 (Video monitoring and conferencing system).
Uniloc USA, Inc. et al v. Big Fish Games, Inc., (E.D. Tex.) (multiple cases).
Patents: 6,110,228 (Method and apparatus for software maintenance at remote nodes); and 6,564,229 (System and method for pausing and resuming move/copy operations).
Freeny et al v. Brother International Corporation, (E.D. Tex.) (multiple cases).
Patents: 6,490,443 (Communication and proximity authorization systems); 6,806,977 (Multiple integrated machine system); 7,110,744 (Communication and proximity authorization systems; and 7,301,664 (Multiple integrated machine system).
Venadium LLC v. Ally Financial, Inc., (E.D. Tex.) (multiple cases).
Build A Sign, LLC v. Landmark Technology, LLC, (W.D. Tex.).
Patent: 6,289,319 (Automatic business and financial transaction processing system).
Patents: 8,275,863 (Method of modifying a toolbar); and 9,021,070 (Dynamically modifying a toolbar).
Soverain IP, LLC v. Microsoft Corporation, (E.D. Tex.) (multiple cases).
Patents: 5,708,780 (Internet server access control and monitoring systems); 6,212,634 (Certifying authorization in computer networks); 6,279,112 (Controlled transfer of information in computer networks); 7,191,447 (Managing transfers of information in a communications network); 8,606,900 (Method and system for counting web access requests); and 8,935,706 (Managing transfers of information in a communications network).
Spider Search Analytics LLC v. Restocks, Inc., (E.D. Tex.) (multiple cases).
Patent: 7,454,430 (System and method for facts extraction and domain knowledge repository creation from unstructured and semi-structured documents).
Location Services IP, LLC v. BPS Direct, LLC d/b/a Bass Pro Shops d/b/a Bass Pro, Inc., (E.D. Tex.) (multiple cases).
BPS Direct, LLC d/b/a Bass Pro Shops d/b/a Bass Pro, Inc.
U-Haul International, Inc. d/b/a Web Team Associates, Inc.
Patents: 6,202,023 (Internet based geographic location referencing system and method); 6,356,834 (Geographic location referencing system and method); and 8,935,220 (Unified geographic database and method of creating, maintaining and using the same).
Kaldren LLC v. Citigroup Inc., (E.D. Tex.) (multiple cases).
D. Power and Associates, Inc.
Patents: 6,098,882 (Variable formatting of digital data into a pattern); 6,176,427 (Variable formatting of digital data into a pattern); 6,820,807 (Variable formatting of digital data into a pattern); and 8,281,999 (Variable formatting of digital data into a pattern).
Blue Spike, LLC v. Barnes & Noble, Inc. et al, (E.D. Tex.) (multiple cases).
Patents: 7,159,116 (Systems, methods and devices for trusted transactions); 7,475,246 (Secure personal content server); 7,779,261 (Method and system for digital watermarking); 7,813,506 (System and methods for permitting open access to data objects and for securing data within the data objects); 7,953,981 (Optimization methods for the insertion, protection, and detection of digital watermarks in digital data); 8,121,343 (Optimization methods for the insertion, protection, and detection of digital watermarks in digitized data); 8,161,286 (Method and system for digital watermarking); 8,171,561 (Secure personal content server); 8,307,213 (Method and system for digital watermarking); 8,739,295 (Secure personal content server); and 8,798,268 (System and methods for permitting open access to data objects and for securing data within the data objects).
Diem LLC v. BigCommerce, Inc., (E.D. Tex.).
Patent: 7,770,122 (Codeless dynamic websites including general facilities).
Symbology Innovations, LLC v. Atlantic City Electric Company, (D.N.J.) (multiple cases).
Patents: 7,992,773 (System and method for presenting information about an object on a portable electronic device); 8,424,752 (System and method for presenting information about an object on a portable electronic device); 8,651,369 (System and method for presenting information about an object on a portable device); and 8,936,190 (System and method for presenting information about an object on a portable electronic device).

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