Typically, a defendant facing a lawsuit in state court must decide quickly whether to remove the action to federal court. Although there are various grounds to support removal, federal law requires the party seeking removal to do so within 30 days of receiving the initial pleading or “an amended pleading, motion, order, or other paper” from which it may first be ascertained that the case is removable.[1] Most often, this means that the defendant must ...

Previously on this blog, I discussed the lawsuit filed by Robin Thicke and Pharrell Williams against the heirs to the estate of Marvin Gaye. In the lawsuit, Thicke and Williams sought a declaratory judgment that their hit song, Blurred Lines, did not infringe upon Marvin Gaye’s Got to Give it Up. As I then noted, by seeking a declaratory judgment rather than waiting for the heirs ...

…at least in some circumstances. In a recent opinion from the Washington State Supreme Court, Riverview Community Group v. Spencer & Livingston, a majority held that a property developer’s oral representations regarding an anchor property of a residential development may create an equitable servitude—in effect limiting its use to conform with the oral representations made.[1]  In Riverview Community Group, the defendants built a golf course to encourage sales of nearby residential lots.  The defendants used the golf course in ...

Who is the “seller” of a security?  Although the question may seem straightforward, a recent decision from the Washington Supreme Court suggests that the possibilities continue to grow. The Washington State Securities Act (“WSSA”)[1] regulates the buying and selling of securities in Washington state.  Like its federal counterparts, one of the WSSA’s primary purposes is “to protect investors from speculative or fraudulent schemes.”[2] More specifically, the WSSA protects investors from fraud and misrepresentations made by sellers of ...

A party to a contract who learns that the other party intends not to perform may sue for anticipatory breach.  Upon filing the complaint, the plaintiff may seek various forms of provisional relief (e.g., a pre-judgment writ of attachment or a preliminary injunction) to prevent further harm or to obtain security for any future judgment.  But an 1854 Washington statute still on the books provides a lesser known and more extreme provisional remedy: arrest. Under Washington’s ne exeat statute, RCW 7.44, ...

In litigation, case schedules contain not just dates but deadlines that must be met—or they used to.  Among other things, the case schedule typically sets pre-trial discovery deadlines and requires parties to identify trial witnesses by a set date.  Witnesses not timely disclosed can be excluded from trial absent good cause shown by the disclosing party.[1]  The effect of such rules is to promote early identification of potential witnesses, ensure that discovery is completed on time, and avoid ...

Most corporate parties and all litigators know to avoid “spoliation,” but what it is required to do so is not always clear.  Some would be surprised to know that, even if they are following best practices by issuing litigation-hold instructions and following through on them, the deliberate acts of a rogue employee acting contrary to those instructions can result in sanctions against the employer in litigation. “Spoliation” is a legal term that all attorneys (especially litigators) know and fear.  In its ...

Many employers rely on non-competition and non-solicitation Agreements with employees (collectively, “noncompetes”) to protect confidential or proprietary information and business relationships when the employee leaves.  Properly used, noncompetes can serve a valuable purpose—but only if they are enforceable.  In litigation over noncompetes, the first and potentially decisive battle concerns this legal issue. The enforceability of noncompetes is decided by state law, and while nearly all states agree that noncompetes are a disfavored restraint on trade, just how disfavored can vary greatly.  ...

With both NCAA and NFL football now upon us, I am reminded of the popular adage, “the best defense is a good offense.”  The saying can also apply in law. Take, for example, the case of Robin Thicke, the artist behind the song “Blurred Lines.”  While “Blurred Lines” was definitely the song of the summer, it also allegedly used elements of Marvin Gaye’s “Got to Give It Up,” the rights to which are held by the Gaye family.  Rather than wait ...

On June 24 the U.S. Supreme Court announced its decision in University of Texas Southwestern Medical Center v. Nassar.  Though it did not garner the attention of the Proposition 8 and DOMA cases, the Nassar decision will have substantial impact on employees bringing claims for retaliation under Title VII. In Nassar, the issue before the Court was what standard of causation to apply for claims of employment retaliation brought under 42 U.S.C. § 2000e-(3)(a).  The Plaintiff/Respondent argued that the ...