(The Return of) Ignatz, by Sam Heldman

Saturday, August 03, 2002

Eleventh Circuit Two cases yesterday:

Covad Communications v. Bellsouth Covad had an "interconnection agreement" with Bellsouth regarding DSL lines, but says that Bellsouth was jerking it around to stifle competition. Covad sued under antitrust law, the Telecom Act of 1996, and state law. District Court dismissed; Circuit reverses. Holdings include: The Telecom Act doesn't displace antitrust law and doesn't preempt state law; plaintiff had adequately pleaded antitrust claims; and the claims under the agreement and the Act don't have to be presented to a state commission.

Trustmark v. ESLU, Inc. is a contractual dispute between two companies in the insurance business. Two noteworthy aspects of the opinion: (1) it holds that, although parties are entitled to notice that a Rule 12 motion is going to be converted into a summary judgment motion, there are RARE cases in which the proceedings show that everybody knew that was what was going on, so that the lack of explicit notice is harmless; and (2) it holds that the suit was barred by res judicata (where this was suit #2, and suit #1 regarding some identical alleged breaches of the same contract had ended with a judgment in favor of the defendant). The Court holds that "where the second lawsuit alleges a breach of the same contract that was breached in the first, by the same party, in the same general manner, those actions constitute the factual predicate, and any claims relating to that contract should be brought in the same lawsuit."

posted by sam 7:24 AM 0 comments


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