Sneak Peek: November Wisconsin Lawyer Features Top 21 Federal and State Court Decisions
Nov. 6, 2012 – From the economic loss doctrine to pollution exclusion clauses, two trial lawyers break down the top 21 federal and Wisconsin Supreme Court decisions of 2011-12 in the November Wisconsin Lawyer, available online and in mailboxes soon.
Also, be sure to catch Craig Nelson’s feature on default judgment law in Wisconsin and Zachary Willenbrink’s viewpoint on common-law fiduciary duties related to limited liability companies.
Concerned about protecting data? The issue includes 25 tips to prevent law firm data breaches and an ethics column on the implications of failing to guard clients’ personal information.
Federal Decisions Applying Wisconsin Law
In his article, “Top 9 Recent Federal Court Decisions,” Milwaukee trial and appellate lawyer Michael B. Brennan explains some influential decisions of the U.S. Court of Appeals for the Seventh Circuit and Wisconsin’s two U.S. District Courts.
Before highlighting decisions on contract and corporate law as well as open records, fair dealership, restrictive covenants, and fraudulent transfers, Brennan notes that “[a]lthough federal court interpretations of Wisconsin law are only of persuasive value to, and not binding on, Wisconsin state courts, these interpretations affect how Wisconsin law develops.”
His top four cases include analysis on the economic loss doctrine, which “precludes contracting parties from pursuing recovery in tort for purely economic or commercial losses from a contractual relationship.”
Wisconsin Supreme Court Decisions
Appellate and trial lawyer Beth Ermatinger Hanan tackles the “Top 12 Wisconsin Supreme Court Decisions,” noting that “[w]hile the decisions encompass an array of substantive areas of the law, this year many of the highlighted decisions also addressed important procedural issues.”
Hanan highlights both civil and criminal cases, including ones impacting attorneys directly. For instance, one case addresses the procedural law required before appeals courts may sanction lawyers for violating appellate practice rules.
Wisconsin Default Judgment Law
In his article, “Too Late? Interests of Justice Trump Default Judgments,” Waukesha lawyer Craig Nelson focuses on how two recent cases represent a return to “Wisconsin’s traditional disfavor of default judgments,” which can favor defendants who file late answers.
Nelson notes that courts may render default judgments if a defendant fails to timely answer without “excusable neglect.” However, courts may provide relief from default judgments.
“A circuit court’s decision to grant or deny a default judgment or to grant relief from a previously imposed default judgment is ‘highly discretionary,’” writes Nelson, who breaks down the cases addressing the issue and how lawyers should proceed when facing it.
Are Limited Liability Companies Subject to Common Law Fiduciary Duties?
Resolution of this very question is “much needed to provide certainty for lawyers working with LLCs, LLC members, and the LLCs themselves – both formed and yet to form,” according to Zachary Willenbrink, law clerk at the U.S. District Court for the Eastern District of Wisconsin.
Corporate law requires corporate directors and executives to employ good faith, fair dealing, and loyalty duties to the corporation and its shareholders.
In his article, “LLCs: Exempt from Common-law Fiduciary Duties?” Willenbrink points out that Wisconsin law is sparsely developed on whether those duties apply in the context of LLCs.
“Wisconsin law potentially allows members of LLCs to act without regard to common-law fiduciary duties that members of other, non-LLC business forms are subject to,” he writes. “Thus, given that the LLC is now the most popular choice of business form for newly created businesses in Wisconsin, it is imperative for something to be done to close this hole in the law.”
Technology and Ethics Columns
According to Sharon Nelson and John Simek of the information security firm Sensei Enterprises Inc., “data breaches have proliferated with amazing speed” and law firms are at risk. For instance, they note one security expert who said that computer hackers realize the “economic intelligence” that exists within law firm computer networks and have made targeted attacks.
But Nelson and Simek have you covered with “25 Tips to Prevent Law Firm Data Breaches,” which include things such as protecting laptops with “whole disk encryption.” Some of these are common sense reminders, while others provide details you may not know about.
And while we are on the subject of data and information, this month’s ethics column addresses how to “Guard Clients’ Personal Information” and the implications for failing to do so.
From Social Security numbers to credit card numbers, attorney Dean Dietrich says “lawyers should exercise caution in all respects to ensure that this information is protected from either inadvertent disclosure or some type of unauthorized disclosure.”