February 25, 2014 4th Circuit published opinions

Federal Trade Commission v Ross

Commission sued for an injunction preventing Ross from sending internet ads suggesting the recipients’ computer needed security software. The district court granted the injunction and entered a consumer redress award of over $163 million. The panel affirmed. It held that the authorization to seek an injunction in 15 USC 53(b)(2) triggered the district court’s power to provide complete relief including money wards. It thus joined all other circuits which have decided the issue. The panel also adopted the standard for individual responsibility adopted by all circuits to rule on the issue namely personal participation or authority to control deceptive practices and either actual knowledge of, reckless indifference to or wilful blindness toward the deceptive advertisements. The panel rejected Ross’s evidentiary arguments because her expert witness’ testimony was irrelevant to the issues at trial, she adopted the profit loss statement she challenged on appeal and Ross provide evidence of a conspiracy which justified admission of emails concerning the conspiracy. The panel finally upheld the factual determination of control over eh practices because she had power to approve adds, discipline employees and purchase ad space and was aware of complaints about unwanted downloads and ordered the term “advertisement” removed from some of the ads.

Trans Energy Inc. v EQT Production Company

Trans Energy and related entities sued EQT to quiet title to gas rights to certain property in West Virginia. The district court granted summary judgment in favor of Trans Energy and denied EQT’s motion for more discovery. The panel affirmed. It held that it had subject matter jurisdiction because the pleading error below (one related entity was not diverse form EQT) could be dismissed as it was not an indispensable party. The panel held the deed relied upon by Trans Energy unambiguously transferred oil and gas rights and wells and the attached exhibited relied upon by EQT merely identified the wells being transferred. The panel affirmed the finding that Trans Energy’s predecessor in title was a bona fide purchaser because there was no indication in the chain of title that EQT’s predecessor in title had a competing claim based on an unrecorded lease. Nor was there notice from EQT’s two gas wells on the property as it was several square miles of undeveloped forest land and the inspection at the time of a previous transfer was sufficient to constitute due diligence. The panel finally affirmed without analysis the procedural rulings against EQT.

Meyers v Lamer

Lamer struck a utility bucket that Meyers was working in replacing traffic lights. Meyers sued Lamer for negligence and lamer removed the case to federal court and sought summary judgment. The district court granted judgment to Lamer on the grounds that Meyers assumed the risk of being hit and was contributory negligent. The panel vacated judgment, reversed and remanded with instructions. It reversed on contributory negligence holding that state law barred the defense because Meyers was working in the street on work related duties. It reversed as contributory negligence because a jury question exists under state law as to whether Meyers’ actions of relying on a coworker to warn him when a tall vehicle comes and turning his back to do the work was negligent. The case was remanded for trial.

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