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Appellate
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June 25, 2024
NY Judge Partially Lifts Trump Gag Order Ahead Of Sentence
The Manhattan judge overseeing former President Donald Trump's hush-money case on Tuesday vacated key parts of a gag order intended to shield jurors and witnesses from his verbal attacks, although an order protecting the jurors' identities remains in place.
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June 25, 2024
Oracle Can Seek PAGA Arbitration, Calif. Panel Says
A California appellate panel said Oracle could compel two workers' 7-year-old individual Private Attorneys General Act wage claims into arbitration, holding that the arbitration agreements couldn't have been enforced until after the U.S. Supreme Court issued the Viking ruling in 2022.
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June 25, 2024
Fed. Circ. Revives Class Action Against Feds' Visa Fraud Sting
The Federal Circuit on Tuesday revived an Indian citizen's proposed class action to recover tuition payments to a fake university the U.S. Department of Homeland Security set up to catch visa fraudsters, saying the lower court wrongly determined it lacked jurisdiction.
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June 24, 2024
Chevron's $120M Trial Loss Reinstated By Calif. Appeals Court
A California appellate court says Chevron cannot get another trial after a jury found it liable for the negligent operation of an oil field, overturning a lower court's ruling that the company was entitled to a new trial because a juror failed to disclose a decades-old criminal conviction.
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June 24, 2024
Willis' Plan To Prejudice Defendants Requires DQ, Trump Says
Former President Donald Trump told the Georgia Court of Appeals on Monday that a trial court judge inaccurately applied the legal standard for forensic misconduct when he ruled that Fulton County District Attorney Fani Willis could continue her prosecution of him and his co-defendants in the Georgia presidential election interference case.
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June 24, 2024
5th Circ. Won't Revive Texas' Homemade Gun-Silencer Fight
The Fifth Circuit refused Friday to revive a challenge by Texas residents and attorney general against federal laws regulating the manufacturing of firearm silencers, finding the residents lack standing, since vague intentions to make silencers aren't enough to establish injury, and the state can't voluntarily litigate its residents' personal claims.
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June 24, 2024
9th Circ. Upholds Fine For Fake News In $18B Chevron Case
The Ninth Circuit has affirmed a $268,000 fine against a Seattle attorney for filing a fake newspaper article as a court exhibit in an attempt to bolster his clients' efforts to enforce a nearly $18 billion arbitral award against Chevron.
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June 24, 2024
Justices Will Weigh Liability Of Corporate Affiliates In TM Row
The U.S. Supreme Court will review whether a real estate development company's corporate affiliates should be responsible for a $46.6 million trademark infringement judgment — even though they were not defendants — in a case attorneys said Monday could have ramifications beyond the Lanham Act.
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June 24, 2024
DC Circ. Affirms Verizon Win In Conspiracy Defamation Row
The D.C. Circuit upheld the toss of a conservative commentator's defamation suit over a Yahoo News podcast that covered the 2016 killing of a Democratic National Committee staffer and the conspiracy theories the homicide produced, ruling that the commentator's allegations fell short of the actual malice threshold.
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June 24, 2024
Split 4th Circ. Panel Reopens DEA Applicant's Retaliation Suit
The Fourth Circuit reinstated a lawsuit Monday accusing the U.S. Drug Enforcement Administration of pulling a job offer after it learned the applicant had participated in a sexual harassment suit against the FBI, saying a trial court held the would-be special agent to too high of a standard.
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June 24, 2024
Justices End Irish Landowner's Fight Against $23M Clawback
The U.S. Supreme Court on Monday declined to hear a challenge by Irish businessman Sean Dunne and his ex-wife Gayle Killilea to a Chapter 7 trustee's roughly $23 million avoidance action win, leaving intact a Connecticut jury verdict and a Second Circuit rejection of the onetime couple's claims.
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June 24, 2024
5th Circ. Weighs 'Binding Authority' Of Gulf Fishery Council
A Fifth Circuit panel on Monday pushed back against the government's assertion that members of a council tasked with regulating fishing in federal waters do not count as federal officers, saying the council's ability to limit changes to federal rules "sounds like a legally binding authority."
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June 24, 2024
6th Circ. Backs University's Win In ADA Bias, Retaliation Suit
The Sixth Circuit refused Monday to revive a former Western Michigan University employee's lawsuit claiming he was fired for requesting accommodations for his attention-deficit/hyperactivity disorder, ruling Congress didn't have the power to eliminate states' immunity from retaliation claims under federal disability law.
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June 24, 2024
Ill. Landowners Challenge FERC Moves On $7B Power Line
Illinois residents, farmers and landowners launched a fresh challenge to the $7 billion Grain Belt Express high-voltage power line, telling the D.C. Circuit that when the Federal Energy Regulatory Commission approved an amended negotiated rate authority, it ignored clean energy giant Invenergy's unsanctioned purchase of the project in 2020.
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June 24, 2024
9th Circ. Won't Reconsider Or Sanction In Kari Lake Vote Suit
The Ninth Circuit has rejected Arizona Republican Kari Lake's attempt to revive her 2022 suit over the state's voting machines, issuing a two-sentence order that also rejects a sanctions bid Maricopa County officials filed in response to the former gubernatorial candidate's attempt to restart her failed suit.
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June 24, 2024
Illinois, Other States Back FTC Bid To Affirm Intuit Ad Ruling
Illinois, along with 20 other states and the District of Columbia, defended the Federal Trade Commission in tax software giant Intuit's Fifth Circuit constitutional challenge to the agency's findings that the company engaged in deceptive advertising, saying in an amicus brief that the FTC's conclusion was correct.
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June 24, 2024
Colo. Justices Send Back 'Rare' Atty Conflict Criminal Case
The Colorado Supreme Court on Monday found that an appeals court panel used an outdated analysis when reversing the sexual assault conviction of a man because his defense attorney was being prosecuted at the same time by the same district attorney's office, remanding the case for another look.
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June 24, 2024
Justices Undo Terror Victims' Win, Citing Twitter Decision
The U.S. Supreme Court on Monday swept aside a D.C. Circuit ruling that threatened to expose major pharmaceutical companies to liability for terrorist attacks that injured or killed hundreds of U.S. soldiers and civilians in Iraq.
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June 24, 2024
LA Schools Says Pseudoscience Infected 9th Circ. Vax Ruling
The Los Angeles Unified School District said Friday that a split Ninth Circuit panel leaned on pseudoscience when ruling that a rescinded employee COVID-19 vaccination mandate implicated the right of district employees to refuse medical treatment, urging an en banc panel to correct the "fatally flawed" decision.
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June 24, 2024
Mars Beats Dove Chocolate False Ad Suit At 9th Circ.
The Ninth Circuit affirmed the dismissal Monday of a proposed class action claiming that a Mars subsidiary falsely advertised its Dove dark chocolate products as being made without using child slave labor or contributing to rainforest deforestation, finding that the candy packages' "Rainforest Alliance Certified farms" labeling isn't misleading.
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June 24, 2024
Mich. Justices Take Up Young Adults' Life Sentence Challenge
Michigan's top court will weigh whether the state's mandatory life sentence for murder is unconstitutional when applied to young adults, after 19- and 20-year-olds argued that a 2022 precedent banning the punishment for 18-year-olds should extend to them.
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June 24, 2024
8th Circ. Sides With Minn. DOT In Injured Worker's ADA Suit
The Eighth Circuit on Monday backed the Minnesota Department of Transportation in a suit by a former mechanic who alleged the agency discriminated against him after an on-the-job injury, finding MNDOT reasonably showed that he could not do the work of his prior position.
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June 24, 2024
Pipe Co. Seeks Full Fed. Circ. Redo Of Thai Pipe Duty Review
A pipe company asked the full Federal Circuit to unwind a panel ruling broadening a decades-old anti-dumping duty order on Thai pipe, saying the panel mistakenly expanded the levy to cover more imports than allowed under federal trade law.
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June 24, 2024
9th Circ. Asks Wash. Justices If Uber Had Duty To Slain Driver
The Ninth Circuit urged Washington's highest court Monday to determine whether Uber had a duty to use reasonable care to protect one of its drivers who was murdered in a carjacking, in an order that paused an appeal brought by the driver's family.
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June 24, 2024
9th Circ. Won't Revive Ex-Uber Driver's Bias Suit
An Asian man who previously drove for Uber didn't provide enough information in his proposed class action to support his claim that the ride-hailing platform's use of customer ratings when making decisions to drop drivers had a "significant disparate impact" on non-white drivers, the Ninth Circuit said Monday.
Expert Analysis
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Ill. Justices' Ruling Answers Corporate Defamation Questions
The Illinois Supreme Court's recent unanimous decision in Project44 v. FourKites provides needed certainty and direction for lower courts considering defamation cases involving communications to corporate officers from third parties outside the corporation, which could result in fewer unwarranted motions to dismiss in trial courts and nonmeritorious appeals, says Phillip Zisook at Schoenberg Finkel.
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As Arbitrator Bias Claims Rise, Disclosure Standards Evolve
The growth in post-award challenges based on arbitrators' alleged conflicts of interest has led to the release of new guidance and new case law on the topic — both supporting the view that professional familiarity alone does not translate to a lack of impartiality, say attorneys at Skadden.
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6th Circ. Bias Ruling Shows Job Evaluations Are Key Defense
In Wehrly v. Allstate, the Sixth Circuit recently declined to revive a terminated employee’s federal and state religious discrimination and retaliation claims, illustrating that an employer’s strongest defense in such cases is a documented employment evaluation history that justifies an adverse action, says Michael Luchsinger at Segal Mccambridge.
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Social Media Free Speech Issues Are Trending At High Court
The U.S. Supreme Court's recent decision examining what constitutes state action on social media can be viewed in conjunction with oral arguments in two other cases to indicate that the court sees a need for more clarity regarding how social media usage implicates the First Amendment, say attorneys at Kean Miller.
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The Fed. Circ. In April: Hurdles Remain For Generics
The Federal Circuit’s recent Salix v. Norwich ruling — where Salix's brand-name drug's patents were invalidated — is a reminder to patent practitioners that invalidating a competitor's patents may not guarantee abbreviated new drug application approval, say Sean Murray and Jeremiah Helm at Knobbe Martens.
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Bankruptcy Ruling Shifts Lease Rejection Claim Calculation
A New York federal court’s recent ruling in In re: Cortlandt provides guidance on how to calculate a landlord's damages claim when a bankruptcy debtor rejects a lease, changing from an approach that considers the remaining rent due under the lease to one that considers the remaining time, say Bethany Simmons and Noah Weingarten at Loeb & Loeb.
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Don't Use The Same Template For Every Client Alert
As the old marketing adage goes, consistency is key, but law firm style guides need consistency that contemplates variety when it comes to client alert formats, allowing attorneys to tailor alerts to best fit the audience and subject matter, says Jessica Kaplan at Legally Penned.
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10b-5 Litigation Questions Follow Justices' Macquarie Ruling
Last month, the U.S. Supreme Court held in Macquarie v. Moab that pure omissions are not actionable under U.S. Securities and Exchange Commission Rule 10b–5(b), creating a slightly higher bar for plaintiffs and setting the stage for further litigation over several issues, say Steve Quinlivan and Sean Colligan at Stinson.
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Series
Walking With My Dog Makes Me A Better Lawyer
Thanks to my dog Birdie, I've learned that carving out an activity different from the practice of law — like daily outdoor walks that allow you to interact with new people — can contribute to professional success by boosting creativity and mental acuity, as well as expanding your social network, says Sarah Petrie at the Massachusetts Attorney General’s Office.
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What Calif. Eviction Ruling Means For Defaulting Borrowers
A California appellate court's recent decision in Homeward Opportunities v. Taptelis found that a defaulting borrower could not delay foreclosure with an improperly served notice of pendency of action, but leaves open a possibility for borrowers to delay eviction proceedings merely by filing lawsuits, say Anne Beehler and Krystal Anderson at Holland & Knight.
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Think Like A Lawyer: Follow The Iron Rule Of Trial Logic
Many diligent and eager attorneys include every good fact, point and rule in their trial narratives — spurred by the gnawing fear they’ll be second-guessed for leaving something out — but this approach ignores a fundamental principle of successful trial lawyering, says Luke Andrews at Poole Huffman.
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Court Clerk Error Is No Excuse For A Missed Deadline
Two recent Virginia Court of Appeals decisions in which clerical errors led to untimely filings illustrate that court clerks can be wrong about filing deadlines or the date an order was entered, underscoring the importance of doing one's own research on filing requirements, says Juli Porto at Blankingship & Keith.
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Circuit Split Brews Over Who's A Securities Seller Under Act
A Securities Act section that creates private liability for the sale of an unregistered security is rapidly becoming a favored statute for plaintiffs to wield against participants in both the digital asset and traditional securities markets, but the circuit courts have diverged on who may be held liable for these violations, say Jeffrey L. Steinfeld and Daniel Aronsohn at Winston & Strawn.
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Fed. Circ. Ruling Shows Difficulty Of Proving Deceptive Intent
The Federal Circuit’s recent Freshub v. Amazon decision demonstrates how proving the deceptive intent requirement for inequitable conduct can be challenging, even when there is a five-year delay after abandonment before revival, say attorneys at BCLP.
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Banks Have Won Syndicated Loan Battle, But Not The War
Though the U.S. Supreme Court's recent denial of certiorari in Kirschner v. JPMorgan preserves the status quo that syndicated loans are not securities, the U.S. Securities and Exchange Commission's discomfort suggests that the underlying issues have not been fully resolved, say attorneys at Crowell & Moring.