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Appellate
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September 12, 2024
McKinsey Partner Can't Undo $11M Music Piracy Judgment
An Eleventh Circuit panel Thursday upheld an $11 million federal default judgment against a McKinsey & Co. partner for pirating music, agreeing with the Georgia lower court that the motion to set aside the roughly 10-year-old order was untimely.
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September 12, 2024
Del. Justices Uphold Chancery Toss Of $1.2B NCino Deal Suit
The Delaware Supreme Court on Thursday upheld the Chancery's court's decision to throw out nCino investor claims against company directors and investment firm Insight Venture Partners challenging the financial technology company's $1.2 billion acquisition of mortgage loan platform SimpleNexus.
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September 12, 2024
6th Circ. Says Food Transporter Illegally Shuttered Warehouse
A bulk food delivery contractor for grocery giant Kroger violated federal labor law when it closed its Louisville, Kentucky, terminal after a union representation election and fired employees, the Sixth Circuit has ruled, upholding a National Labor Relations Board decision.
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September 12, 2024
DOL Has Authority To Issue Salary Regs, 5th Circ. Affirms
The U.S. Department of Labor has the authority to issue salary rules as part of its role in defining the overtime exemptions of the Fair Labor Standards Act, the Fifth Circuit affirmed, in a case that raised questions about the DOL's power to regulate a fundamental aspect of wage and hour law.
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September 12, 2024
9th Circ. Sends Salary Basis Case Back To Lower Court
San Francisco city nurses claiming they were not paid a true salary and are therefore entitled to overtime pay will have their day in court after the Ninth Circuit reversed a lower court's summary judgment and remanded the case for further proceedings.
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September 12, 2024
Biden Sets Record On Appointing Native American Judges
As part of his commitment to diversify the federal judiciary, President Joe Biden has appointed Native American judges in record strides. But stakeholders say there's more to be done for this vastly underrepresented population, and several judicial vacancies in states with large Native populations offer opportunity for continued progress.
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September 12, 2024
AGs Ask 2nd Circ. To Revive Their SALT Cap Workaround Suit
Attorneys general from New York, New Jersey and Connecticut asked the Second Circuit to revive their challenge to an IRS rule prohibiting workarounds to the federal cap on state and local tax deductions, saying the rule was arbitrary and contrary to congressional intent.
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September 12, 2024
Senate Preps Vote On 6th Circ. Nom Opposed By Tenn. GOP
The U.S. Senate is set to vote Monday on the nomination of Kevin Ritz to join the Sixth Circuit bench despite strong objection from the senior senator from Tennessee, one of the circuit's four states.
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September 12, 2024
Kids Ask Supreme Court To Revive Long-Running Climate Suit
A group of children accusing the federal government of creating policies that worsen climate change asked the U.S. Supreme Court to revive their case, arguing in a petition filed Thursday that the Ninth Circuit overstepped when it ordered the trial court to dismiss the case this spring.
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September 12, 2024
Convicted Fraudster Seeks To Challenge $21M Restitution
A Florida man convicted of defrauding hospitals in a payroll fraud scheme urged the Eleventh Circuit Thursday to allow him to challenge a $21 million restitution award while still in prison, saying he wasn't allowed to challenge inaccurate information during sentencing.
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September 12, 2024
Paxton Deputy Says Ethics Claim Is Dangerous To Other Attys
The Texas attorney general's office told the Texas Supreme Court Thursday that the State Bar of Texas had "transgressed the Constitution" by filing an ethics charge against Texas Attorney General Ken Paxton's first assistant, warning that allowing him to face action would put every attorney who files civil suits in danger.
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September 12, 2024
Pillsbury Hires King & Spalding Atty To Lead Appellate Team
Pillsbury Winthrop Shaw Pittman LLP on Wednesday named a new leader for its U.S. appellate practice, tapping a veteran litigator and former prosecutor who joined the firm's Silicon Valley office from King & Spalding LLP.
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September 12, 2024
Medline Can't Force Arbitration In Transportation Wage Suit
Medical supply giant Medline can't compel a warehouse employee to arbitrate her wage-and-hour claims, the Ninth Circuit ruled, upholding a lower court's decision that she's exempted under the interstate-commerce exemption of the Federal Arbitration Act because she loads goods that cross state lines.
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September 12, 2024
NY Top Court Rejects Trump's Latest Challenge To Gag Order
New York's highest court on Thursday rebuffed Donald Trump's latest effort to strike down a gag order in his hush money case, saying the appeal didn't involve a "substantial constitutional question."
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September 11, 2024
Litigation Spending To Rise As Cases Grow More Aggressive
A substantial number of large companies are expecting to increase their litigation spending by double digits next year in the face of more complex and hard-fought cases — and they are more open to bringing in new legal talent to navigate the matters, according to a report released Thursday.
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September 11, 2024
Hertz Noteholders Entitled To $270M Interest, 3rd Circ. Rules
Unsecured noteholders from Hertz's bankruptcy are entitled to roughly $270 million in interest as a so-called make-whole payment, a Third Circuit panel decided in a split ruling overturning a bankruptcy court opinion that said it was disallowed under the Chapter 11 code.
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September 11, 2024
Gender Care Hearing Centers On Ohio Bill Of Rights
Questions about potential conflicts between an Ohio gender care ban and a right to healthcare "freedom" enshrined in the state constitution dominated much of a Wednesday hearing in a state appellate court.
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September 11, 2024
Sprout Foods Can't Get 9th Circ. Redo In Baby Food Label Suit
A split Ninth Circuit panel declined Tuesday to rethink its decision that federal law doesn't preempt a couple's California state law claim over allegedly misleading nutrition labels on Sprout Foods baby food labels.
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September 11, 2024
Fed. Circ. Lets Roku IP Dispute Move From Texas To Calif.
The Federal Circuit on Wednesday declined to reverse a Texas district court's transfer of a suit accusing Roku of infringing patents on automatic content recognition technology for commercial advertising, holding the Texas court wasn't wrong to find California had a stronger local interest in the dispute.
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September 11, 2024
Wayfair Beats Fired Worker's Disability Bias Suit At 3rd Circ.
The Third Circuit refused Wednesday to revive a disability bias suit from a former Wayfair warehouse worker who said the furniture retailer violated New Jersey law when it fired him, backing a trial court's finding that he couldn't handle the essential functions of his job.
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September 11, 2024
Split 6th Circ. Backs SEC Win In Proxy Adviser Rule Change
A divided Sixth Circuit has upheld the U.S. Securities and Exchange Commission's decision to partially undo Trump-era rules governing proxy advisers, creating an apparent split with the Fifth Circuit on whether the agency's regulatory actions violated the Administrative Procedure Act.
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September 11, 2024
Uber, Postmates Ask Justices To Address AB 5 Classifications
Postmates and Uber urged the U.S. Supreme Court to reverse the Ninth Circuit's decision dismissing their constitutional challenge to California's worker classification law, arguing that A.B. 5 singles them out and strips them of equal protection under the law, according to their petition to the high court.
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September 11, 2024
2nd Circ. Reverses S. Korean Consulate Chauffeur's Wage Win
The Second Circuit on Wednesday overturned a decision that allowed a chauffeur working for South Korea's foreign consulate in Manhattan to pursue his wage-and-hour claims against the organization, ruling that the lower court was too quick to decide that the consulate was not immune to the claims under the foreign sovereignty law.
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September 11, 2024
Fla. Panel Told ACC's Suit Against FSU Must Play Out First
The Atlantic Coast Conference told a Florida appellate panel Wednesday that a lower court should have paused Florida State University's complaint over sports media rights while a similar lawsuit the ACC brought first in North Carolina proceeds, saying it'll suffer irreparable harm if both actions proceed at the same time.
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September 11, 2024
5th Circ. To Rethink Houston Firm's Poaching Suit Removal
The Fifth Circuit agreed on Wednesday to rethink its decision not to touch a dispute between Abraham Watkins Nichols Agosto Aziz & Stogner and one of its former attorneys over whether the ex-employee waived his right to remove the firm's poaching suit to federal court.
Expert Analysis
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Justices' Bump Stock Ruling Skirted Deference, Lenity Issues
Despite presenting a seemingly classic case on agency deference, the U.S. Supreme Court’s ruling last week in Garland v. Cargill did not mention the Chevron doctrine, and the opinion also overlooked whether agency interpretations of federal gun laws should ever receive deference given that they carry criminal penalties, say Tess Saperstein and John Elwood at Arnold & Porter.
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Emerging Trends In ESG-Focused Securities Litigation
Based on a combination of shareholder pressure, increasing regulatory scrutiny and proposed rulemaking, there has been a proliferation of litigation over public company disclosures and actions regarding environmental, social, and governance factors — and the overall volume of such class actions will likely increase in the coming years, say attorneys at Mintz.
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Firms Must Rethink How They Train New Lawyers In AI Age
As law firms begin to use generative artificial intelligence to complete lower-level legal tasks, they’ll need to consider new ways to train summer associates and early-career attorneys, keeping in mind the five stages of skill acquisition, says Liisa Thomas at Sheppard Mullin.
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High Court's BofA Ruling Leaves State Preemption Questions
A recent U.S. Supreme Court decision in Cantero v. Bank of America sheds light on whether certain state banking regulations apply to federally chartered banks, but a circuit split could still force the Supreme Court to take a more direct position, says Brett Garver at Moritt Hock.
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Next Steps After 5th Circ. Nixes Private Fund Adviser Rules
The Fifth Circuit's recent toss of key U.S. Securities and Exchange Commission rules regarding private fund advisers represents a setback for the regulator, but open questions, including the possibility of an SEC petition to the U.S. Supreme Court, mean it's still too early to consider the matter closed, say attorneys at Debevoise.
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Foreign Discovery Insights 2 Years After ZF Automotive
Although an Arizona federal court decision last month demonstrates that Section 1782 discovery may still be available to foreign arbitral parties, the scope of such discovery has narrowed greatly since the U.S. Supreme Court's 2022 decision in ZF Automotive, and there are a few potential trends for practitioners to follow, say attorneys at Venable.
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Think Like A Lawyer: Always Be Closing
When a lawyer presents their case with the right propulsive structure throughout trial, there is little need for further argument after the close of evidence — and in fact, rehashing it all may test jurors’ patience — so attorneys should consider other strategies for closing arguments, says Luke Andrews at Poole Huffman.
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Deciphering SEC Disgorgement 4 Years After Liu
Since the U.S. Supreme Court’s 2020 decision in Liu v. U.S. Securities and Exchange Commission to preserve SEC disgorgement with limits, courts have continued to rule largely in the agency’s favor, but a recent circuit split over the National Defense Authorization Act's import may create hurdles for the SEC, say attorneys at Ropes & Gray.
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Where Anti-Discrimination Law Stands 4 Years After Bostock
On the fourth anniversary of the U.S. Supreme Court's landmark Bostock ruling, Evan Parness and Abby Rickeman at Covington take stock of how the decision, which held that Title VII protects employees from discrimination because of their sexual orientation and gender identity, has affected anti-discrimination law at the state and federal levels.
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8th Circ. Insurance Ruling Spotlights Related-Claims Defenses
The Eighth Circuit’s recent Dexon v. Travelers ruling — that the insurer must provide a defense despite the policy’s related-acts provision — provides guidance for how policyholders can overcome related-acts defenses, say Geoffrey Fehling and Jae Lynn Huckaba at Hunton.
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Series
Playing Chess Makes Me A Better Lawyer
There are many ways that chess skills translate directly into lawyer skills, but for me, the bigger career lessons go beyond the direct parallels — playing chess has shown me the value of seeing gradual improvement in and focusing deep concentration on a nonwork endeavor, says attorney Steven Fink.
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9th Circ. Clarifies ERISA Preemption For Healthcare Industry
The Ninth Circuit's recent ruling in Bristol SL Holdings v. Cigna notably clarifies the broad scope of the Employee Retirement Income Security Act's preemption of certain state law causes of action, standing to benefit payors and health plan administrators, say attorneys at Troutman Pepper.
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Patent Lessons From 7 Federal Circuit Reversals In May
A look at recent cases where the Federal Circuit reversed or vacated decisions by the Patent Trial and Appeal Board or a federal district court provide guidance on how to succeed on appeal by clarifying the obviousness analysis of design patents, the finality of a judgment, and more, say Denise De Mory and Li Guo at Bunsow De Mory.
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Litigation Inspiration: Attys Can Be Heroic Like Olympians
Although litigation won’t earn anyone an Olympic medal in Paris this summer, it can be worthy of the same lasting honor if attorneys exercise focused restraint — seeking both their clients’ interests and those of the court — instead of merely pursuing every advantage short of sanctionable conduct, says Bennett Rawicki at Hilgers Graben.
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What To Know As CFPB Late Fee Rule Hangs In Limbo
Though the Consumer Financial Protection Bureau's final credit card late fee rule faces an uncertain future due to litigation involving injunctions, emergency petitions and now a venue dispute, card issuers must understand how to navigate the interim period and what to do if the rule takes effect, say attorneys at Steptoe.