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Legal Guides for consumers
A nonsuit is a legal term which refers to the dismissal of a lawsuit. There are two types of nonsuits: voluntary and involuntary. A voluntary nonsuit refers to when the plaintiff chooses to willingly discontinue the case. Conversely, an involuntary nonsuit refers to a court’s dismissal of a lawsuit on a motion to dismiss or other legal grounds sufficient for the court to dismiss the case.
A Nonsuit “With Prejudice” Versus a nonsuit “Without Prejudice”
Not understanding the difference in a nonsuit with prejudice and without prejudice could have serious consequences. When the court dismisses a lawsuit with prejudice, that is the end of the case and all claims involved for all parties involved. The plaintiff can not bring another action based on the same claims in court and may not appeal the decision to a higher court.
In contract, when a plaintiff takes a nonsuit without prejudice, this basically refers to the plaintiff dismissing the case for a short period with the intent to refile, so long as done with the statute of limitations.
Limitations on when the Plaintiff May Take a Nonsuit Without prejudice
Unlike a nonsuit with prejudice which can be taken at any time, a nonsuit without prejudice has procedural limitations. A majority of state courts allow a plaintiff one involuntary dismissal. Plaintiff must give notice of the dismissal either in writing or orally in court and notice must begiven prior to: the jury retiring; the judge sustaining a motion to strike evidence; and the case is before the court for decision.
In federal court, a plaintiff may only voluntarily dismiss a claim by giving notice of the voluntary dismissal prior to the defendant filing an answer or counterclaim. The plaintiff must request that the court voluntarily dismiss before the opposing party files for summary judgment. Notwithstanding these two procedural requirements, a plaintiff may still dismiss the suit afterwards with court permission and a signed agreement between the plaintiff and the defendant.
Additionally, a class action in which the court has certified the class, cuts off the plaintiff’s right to take a voluntary nonsuit as does a class certified for the purposes of settlement. Specifically, Fed. R. Civ. P. 23(e), provides that “[t]he claims, issues, or defenses of a certified class—or a class proposed to be certified for purposes of settlement—may be settled, voluntarily dismissed, or compromised only with the court's approval.” Id. (emphasis added). Finally, pursuant to Fed. R. Civ. P. 66, when a receiver has been appointed, the action may be dismissed only by court order.
A special litigation committee (“SLC”) is a committee appointed by a corporation’s Board of Directors when challenged by a shareholder derivative action and is tasked with considering whether it is in the corporation’s best interest is to pursue or terminate the derivative litigation.
When is a SLC formed?
Where a disgruntled shareholder makes a demand upon a corporation to file a lawsuit against certain officers and directors, the Board of Directors may appoint a SLC, typically made up of two or more disinterested or independent directors. The SLC is charged with investigating the allegations made by the shareholders against the targeted officers and directors and determining if it is in the best interest of the company to pursue the claims against the officers and directors.
More commonly, a SLC is appointed where there is already a pending derivative lawsuit in which pre-suit demand on the board has been excused as futile by a court on a motion to dismiss under Rule 23.1. Even where a shareholder plaintiff has survived a motion to dismiss for failure to make pre-suit demand by showing reasonable doubt concerning the disinterest or independence of a majority of board members, that board can properly delegate its authority concerning litigation decisions on behalf of the corporation to an SLC consisting of disinterested and independent directors. The SLC is a last chance for a corporation to control a derivative claim when a court has determined that a majority of its directors cannot impartially consider the demand.
What Are the Requirements of a SLC?
After a SLC is formed, it must be given full authority and control to make its decisions. It must act independently and not under the influence or control of the board of directors despite the fact that the board appointed its members. The SLC’s procedures for investigating claims must be “adequate, appropriate, and pursued in good faith.”
The determination of whether the SLC’s procedures are proper depends on the nature of the particular investigation may include factors such as: the length and scope of the investigation; the SLC’s use of independent counsel or experts; the corporation or defendant’s participation, if any in the investigation; and the adequacy and reliability of the info supplied to the SLC.
The most important requirement of a SLC is its independence from the Board members who appointed them. The SLC member(s) must not have a relationship with any of the individual defendant or the derivative lawsuit itself that would impair an SLC member’s judgment. When reviewing the decision of a SLC, a Court finds the SLC lacked independence, the court may vacate the SLC’s recommendation despite the length, scope or thoroughness of its investigation.
Examples of when the members of a SLC will be found not to be independent include: if they are a defendant in the derivative lawsuit they are investigating; if a SLC member has a significant financial stake in the corporation they are advising; and, when the committee is simply advising the board of directors, most of whom are defendants in the derivative lawsuit, instead of acting with full power delegated by the board of directors.
Deference given to the recommendation of a SLC
The Board’s resolution establishing the SLC must delegate the board’s power to control the litigation. A mere advisory role of a SLC fails to bestow a sufficient legitimacy to warrant deference to the committee’s decision by the court. When a properly delegated SLC files a motion to dismiss a demand-excused derivative suit, the SLC has the burden of demonstrating the absence of genuine issues of material fact regarding the committee’s independence, meaning that SLC members are not given the benefit of the doubt as to their objectivity.
A court will examine the independence of the SLC and the process followed by the SLC in reaching its determination, and investigative lapses will undermine the court’s confidence in the SLC’s conclusion. The SLC must foreclose any reasonable basis to question whether non-merits factors operated in the SLC’s ultimate judgment. Generally, if the SLC recommends terminating the derivative suit, the court will defer to the recommendation if the committee shows that its members were independent, acted in good faith, and had a reasonable basis for their conclusions. As a result, a properly constituted SLC of disinterested and independent directors empowered by the board to investigate and determine whether the prosecution of derivative claims is in the best interests of the company can be a powerful aspect of a board’s management authority.
A personal injury lawsuit allows you to seek compensation for damages resulting from injuries in a court of law. If your case cannot be settled, your attorney will file a personal injury lawsuit, and you will have to prove to a judge or jury that the at-fault party was negligent. This could take months or longer.
There are several stages in a personal injury lawsuit, including:
Filing of a Complaint
Your attorney files the initial complaint with the court to ensure all parties are served with a copy. This begins the legal process
During discovery, the parties investigates the case by gathering evidence that supports their case through interrogatories, document requests and depositions and other discovery tools. At this point, either party may still make attempts to settle the case before it moves to trial.
If a settlement cannot be reached, the case will proceed to trial. Each side will present its argument and witnesses to the court and jury. This process may involve multiple hearings, and a settlement may still be pursued throughout the trial phase.
Completion of Trial
After all of the arguments are heard, the jury is dismissed to determine its verdict. If the jury rules in your favor, a compensation award amount is also determined.
After a ruling is made, the losing side can still file an appeal. An appeal can lead to a new trial or still a settlement between the parties.
The statute of limitations for personal injury claims in Tennessee is set forth in Tennessee Code Ann. Code § 28-3-104 which provides that any action involving “injuries to the person” shall be brought “within one (1) year after the cause of action accrued.” Tennessee Code Ann. Code § 28-3-104(a)(1). Generally, the cause of action accrues when the person is injured. Thus, inTennessee, unless an exception exists, a party generally has one year from the date they are injured to file a personal injury complaint. If no exception exists, failure to file within one year of your injury will forever bar your claim under the statute of limitations in Tennessee. Because of Tennessee’s short statut of limitations, you should promptly speak to a personal injury attorney after your injury and initial treatment.
Types of Cases Applying the Statute of Limitations
Tennessee’s one-year statute of limitations typically applies to injured victims who were hurt in accidents or incidents,
including, but not limited to, following type cases:
Exceptions to Statute of Limitations for Personal Injury Cases in Tennessee
The Discovery Rule
There are some types of injuries that may not be apparent right away after the accident. Under the discovery rule in Tennessee, the statute of limitations shall not begin to run until an injury victim becomes aware of their injury, or should have become aware.
The Defendant Is Absent
If after a goof faith effort, the defendant cannot be found and served with process, you may have grounds to toll the statute. If you can convince the court, you made a good faith effort to locate the defendant, but could not, you may be able to toll the statute until they can be found. Tenn. Code Ann. §28-1-111.
Injury Victim Is a Minor
If cases where the injured victim is a minor, the statute of limitation does not begin to run. until the victim reaches age 18, then they have one year to a personal injury lawsuit. Tenn. Code Ann. §28-1-106.
The Injury Victim Has a Mental Disability
If the injury victim suffers from a disability that deprives him or her of the ability to make sound decisions concerning
legal action may be ruled mentally incompetent by a Tennessee court. Tenn. Code Ann. §28-1-106.
If you have been injured, contact Timothy L. Miles, a nationally known, experienced, and knowledgeable personal injury attorney in Nashville for a no-risk, Free Case Evaluation.
Cy pres awards are funds given to charitable organizations in cases in which there is still money remaining in the settlement fund, even after all class members have been paid or the amount of the fund is too small to justify a distribution directly to class members.
Cy Pres Provisions in Settlement Agreements
The term “Cy pres” originates from the French expression “cy pres comme possible” meaning as near as possible. In class action settlement agreements, cy pres provisions are commonly used to address the issue of unclaimed funds that are not distributed to class members for a variety of reasons. The remaining funds are often used for creating cy pres awards to charitable organizations that have a connection to the class action litigation, rather than having those funds revert back to the defendant.
Guidelines for Using Cy Pres Awards
Both the American Law Institute (ALI) and the National Association of Consumer Advocates (NACA) have each issued guidelines on the appropriate use of cy pres awards in class action settlements. The two circumstances in which cy pres awards are appropriate according to the ALI guidelines are: (1) when funds are left over after all claims are satisfied or when distribution of funds to all class members is not feasible (for example, because recipients cannot be located); and (2) when the identified or administrative costs for distribution are too large and the interests of the recipients reasonably approximate the interests of the class members. (ALI, Principles of the Law of Aggregate Litig., Section 3.07 (2010).)
Conversely, the NACA guidelines provide for cy pres awards only for unclaimed portions of the settlement and state that unclaimed portions of the settlement should be used to either: (1) protect the interests of persons injured by illegal conduct and thus indirectly benefit absent class members; and (2) promote the purposes of the statutory prohibitions sought to be enforced in the underlying litigation. (NACA, Standards & Guidelines for Litig. & Settling Consumer Class Actions, Revised, 255 F.R.D. 215, 244 (2009).)
Certain states, including Tennessee, have adopted statutes or court rules at the state level codifying the principle that organizations which promote legal aid and access to justice are always an appropriate use for residual funds in class action cases.
Court Approval of Cy Pres Awards
A court has the authority to approve a cy pres award pursuant to Fed. R. Civ. P. 23(e). A court will approve a cy pres award if the court finds that the settlement, taken as a whole, is fair, reasonable and adequate. Courts will look at several factors to determine whether a cy pres award is appropriate, including: (1) the adequacy of the nexus between the alleged class injury and the cy pres recipient; (2) whether the award to the class is nondistributable; (3) the compensation to class members as compared to the cy pres award; and (4) whether counsel or the court faces criticism or a conflict of interest.
In a coupon settlement, class members receive coupons or other promises for products or services instead of a cash award. If appropriately structured, settlements remain a realistic, acceptable means to resolve class litigation in the wake of the Class Action Fairness Act of 2005 (CAFA).
CAFA Does not Hinder Coupon Settlements Continuing Role in Resolving Class Litigation
Despite their criticism and the passage of CAFA, coupon settlements remain an appropriate method of resolving class actions, especially ones in which individual consumers have minimal damages. Often criticized as a means for plaintiffs’ counsel to reap a windfall in fees at the expense of class members, CAFA sought to ensure that coupon settlements are properly reviewed by the courts, and to remove the economic incentive for lawyers to negotiate such settlements at the expense of absent class members. Specifically, Congress included several provisions in CAFA, 28 USC Sections 1332(d), 1453, and 1711, et seq., that regulate coupon settlements. Notably, however, CAFA did not eliminate coupon settlements nor materially restrict their use. As a result, Coupon settlements are still an acceptable means to resolve class litigation if appropriately structured.
Provisions of CAFA Related to Coupon Settlements
(1) Hearings and Written Findings: 28 U.S.C. Section 1712(e):
In addition to Federal Rule of Civil Procedure 23(e)(2) requires *courts to hold a hearing to review class action settlements to ensure that they are “fair, reasonable, and adequate,” CAFA requires courts to hold a hearing and issue written findings in order to ensure that a coupon settlement is “fair, reasonable, and adequate for class members.” 28 U.S.C. Section 1712(e). Despite the identical language in Rule 23(e)(2) and Section 1712(e), several courts have interpreted CAFA as requiring heightened judicial scrutiny of coupon settlements even while employing the factors typically considered by courts under Rule 23(e)(2).
(2). Expert Testimony: 28 U.S.C. Section 1712(d):
CAFA provides that a court “may, in its discretion upon the motion of a party, receive expert testimony from a witness qualified to provide information on the actual value to the class members of the coupons that are redeemed.” 28 U.S.C. Section 1712(d). Such testimony may assist the court in determining the fairness of the proposed settlement and the appropriate amount of attorney’s fees.
(3). Cy Pres Distribution: 28 U.S.C. 1712(e):
Recognizing a cy pres award may be an appropriate means to supplement a coupon settlement in a particular case, CAFA expressly authorizes a court to “require that a proposed settlement agreement provide for the distribution of a portion of the value of unclaimed coupons to 1 or more charitable or governmental organizations, as agreed to by the parties.” 28 U.S.C. Section 1712(e).
Attorneys’ Fees: CAFA Section 1712(b), (c)
CAFA was enacted by Congress, in part, due to the concern that attorneys were receiving excessive fees with little or no recovery for the class members due to the fact that only a small percentage of coupons are actually redeemed by class members. As a result, CAFA contained provisions to limit attorneys from linking their fee awards to the nominal value of the coupons available to the settlement class. Specifically, attorneys’ fees are limited in coupon settlements by CAFA as follows: (1) When coupons provide sole basis of relief “the portion of any attorneys’ fee award to class counsel that is attributable to the award of coupons shall be based on the value to class members of the coupons that are redeemed,” not the face value of the coupons issued; (2) if the attorneys’ fee award is not based on the recovery to the class then the loadstar method must be used which may include a reasonable multiplier; (3) if a proposed settlement provides for coupons and for equitable or injunctive relief, attorneys’ fees may be based in part on the value of the coupons redeemed and in part on the lodestar method; and (4) if a proposed settlement includes a cy pres provision, the distribution of any such proceeds “shall not be used to calculate attorneys’ fees.” 28 U.S.C. Section 1712(e). Notwithstanding, courts may consider the cy pres distribution in deciding the overall reasonableness of an attorneys’ fee award, even though they may not be using the cy pres distribution to “calculate” the fee.
Federal Courts Taking Differing Approaches on the Applicable Standard in Approval of Coupon Settlements
In evaluating coupon-based class action settlements, several federal courts have refused to apply a heightened level of scrutiny noting that CAFA’s requirements for evaluating coupon settlements are no higher than the requirements of fairness, reasonableness, and adequacy under Rule 23(e). Some courts have expressly held that the scrutiny under Section 1712(e) of CAFA is the exact same as that of Rule 23(e). Several other federal courts, however, have interpreted CAFA to require a “heightened scrutiny” of coupon settlements. The reasoning. as expressed by one court, in imposing a heightened scrutiny is to achieve Congress’s goal of making coupon settlements fairer.
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