New opinions — David beats Goliath, plus a divided disability-rights ruling

Brand Marketing v. Intertek Testing — civil — affirmance — Hardiman

This appeal is a David vs. Goliath story. David wins.

Our David is David Brand, who founded a company — a “small” company, the opinion tells us up front — that makes heaters. Our Goliath is Intertek, a company — “an international product-testing company with more than 35,000 employees” — that Brand hired to test whether his heaters met U.S. safety standards. Intertek said the heaters passed, but in fact should not have, and, when the problems with the heaters came to light, the company that had been selling the heaters sued Brand. Brand lost and owed over $600,00.

So David (Brand) sued Goliath (Intertek). Goliath did what Goliaths do: after it bought the judgment that Brand owed to his former seller, Intertek then “aggressively tried to collect its judgment in the weeks leading up to trial, attempting, among other tactics, to transfer the judgment from the company to David Brand personally.” (Those facts don’t seem relevant to the issues on appeal, but perhaps were included for anyone who missed the small company/big company intro.)

After a trial, the jury ruled for Brand for over $6 million, including $5 million in punitives. Intertek appealed. On appeal, Intertek was represented by Bill Hangley of Hangley Aronchick, who is widely regarded as one of the top lawyers in the state. Brand was represented by a trial lawyer for the far smaller Pittsburgh firm of Meyers Evans.

Today, the Third Circuit affirmed. Among the court’s holdings are that Pennsylvania’s economic-loss doctrine did not bar Brand’s claim for negligent misrepresentation and that such misrepresentation occurred when Intertek prepared a test data sheet that it knew a third party would receive and rely on. The court also upheld the jury’s $5 million punitive-damages award.

Joining Hardiman was Roth, as well as Fisher in part. Fisher dissented on the issue of whether the evidence was sufficient to support the punitive-damages instruction. Arguing counsel were Brendan Lupetin for Brand and William Hangley for Intertek.

So David won this round too, but, given the panel split, the caliber of the losing party’s counsel, and the Supreme Court’s interest in policing punitives, I suspect the fight may not be done yet.


D.M. v. N.J. Dep’t of Educ. — disability & education — remand — Fisher

This appeal arises from a suit under the Individuals with Disabilities Education Act, brought on behalf of a student who wanted to continued attending certain classes despite a state ruling that the school was not authorized to provide those classes. The IDEA has a provision, the so-called “stay put” rule, that says (roughly) that IDEA litigants get to stay in their current education placement until the suit is decided. The key issue in this appeal is whether the stay-put rule applies, and the panel majority ruled that it did.

Joining Fisher was Jordan; Shwartz dissented. The legal argument is pretty evenly matched, but Fisher wins the typography battle hands down: his cites are italicized, Shwartz’s are underlined, to the horror of Butterick devotees everywhere. Arguing counsel were Jennifer McGruther for the state and Vito Gagliardi, Jr. for the student.

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