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Appellate
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July 18, 2024
Conn. Justices Order Redo Of Apartment Tenant's Fee Award
The Connecticut Supreme Court on Thursday gave a landlord another shot at reducing a $3,500 attorney fee award scored by a tenant in an eviction dispute, holding that the lower court failed to consider whether the total was reasonable under the relevant fee shifting statute.
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July 18, 2024
5th Circ. Upholds Tossing Of Ship Captain's Toxic Injury Suit
A former offshore supply vessel captain, who claims chemicals aboard caused his cancer and kidney failure, must sue his U.S. employer in England, the Fifth Circuit has ruled, saying the employment contract's forum selection clause is enforceable even after considering Louisiana's law which largely prohibits such clauses.
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July 18, 2024
9th Circ. Revives Fired Doctor's COVID Vax Religious Bias Suit
The Ninth Circuit revived a doctor's claims that Washington State University failed to accommodate his religious beliefs when it fired him from his residency for refusing the COVID-19 vaccine, ruling Thursday that U.S. Supreme Court precedent necessitates another look at his case.
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July 18, 2024
Fed. Circ. OKs Gilstrap's Alice Ax Of Background Check Patent
The Federal Circuit on Thursday upheld Eastern District of Texas Judge Rodney Gilstrap's invalidation of a background check patent for claiming only an abstract idea, as well as his refusal to award attorney fees to the small Texas city that prevailed in the case.
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July 18, 2024
9th Circ. Signals Support For Alaska Salmon Fishery
A Ninth Circuit panel on Thursday leaned toward allowing government-approved commercial salmon fishing in Southeast Alaska, with one judge saying the economic hardship indigenous communities would face without fishing outweighs the "enormous uncertainty" of impacts on a small population of orca whales that feed on the fish.
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July 18, 2024
Google Warns Fed. Circ. Panel Backed Manipulating Damages
The Federal Circuit's decision to make Google pay EcoFactor $20 million for infringing a smart thermostat patent clears patent owners to "manufacture a royalty rate" and ignore both market realities and apportionment, Google told the full court in a bid for rehearing.
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July 18, 2024
SpaceX Tells 5th Circ. It Will Win Challenge To NLRB Structure
The Fifth Circuit should block claims that SpaceX violated labor law from proceeding before the National Labor Relations Board because the company has a good shot at winning its constitutional challenge to the agency's structure, SpaceX argued.
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July 18, 2024
Menendez Appeal Could Make Hay From Bribery Case Law
Sen. Robert Menendez's planned "aggressive" appeal will almost certainly include broadsides against his novel foreign-agent conviction and attempt to capitalize on the U.S. Supreme Court's proven appetite for bribery cases, experts say.
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July 18, 2024
Split 9th Circ. Panel Backs Restoring DHS Bond Rule
A Ninth Circuit panel upheld a Department of Homeland Security rule barring some immigration surety firms from posting bonds for detained border-crossers Thursday, saying the rule's 2021 ratification by current Homeland Security Secretary Alejandro Mayorkas cured any defects with its original introduction in 2020.
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July 18, 2024
Judge Won't Pause Sanctions In Byju's Ch. 11
A Delaware district court Thursday ruled hedge fund Camshaft Capital Fund LP cannot hold off a contempt order from a Delaware bankruptcy court in the Chapter 11 case of Byju's Alpha while it appeals the sanctions, finding that it could avoid sanctions if it complied with a court order.
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July 18, 2024
Miner Seeks Atty Fees After 4th Circ. DOL Judges Ruling
A former miner urged the Fourth Circuit to approve approximately $21,000 in attorney fees in his case seeking benefits for his black lung disease, saying he has been unable to reach a settlement with an engineering company that challenged the appointment of two U.S. Department of Labor administrative law judges.
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July 18, 2024
LegitScript Asks 9th Circ. To Ax Price-Checker Antitrust Suit
LegitScript has told the Ninth Circuit that PharmacyChecker cannot bring antitrust claims for allegedly having its price-checking website blacklisted because the bulk of its business is geared towards helping people illegally import prescription drugs.
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July 18, 2024
Bank Exec's Tax Tip Case Wrongly Axed, Estate Tells DC Circ.
The estate of a Dutch bank executive asked the D.C. Circuit to overturn a U.S. Tax Court decision denying him a whistleblower award for reporting on tax avoidance schemes, saying the lower court improperly relied on proposed regulations from the Internal Revenue Service.
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July 18, 2024
Fed. Circ. Won't Deflate Air Mattress Patent Upheld At PTAB
The Federal Circuit on Thursday affirmed the Patent Trial and Appeal Board's conclusion that no claims of a Sun Pleasure Co. air mattress patent are invalid based on the grounds asserted by a Chinese company.
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July 18, 2024
Texas Psychiatric Patient's Head Trauma Suit Can Go Forward
A Texas appeals court has revived a man's claims against a doctor who he said failed to diagnose and treat a head injury while he was a psychiatric patient, saying the trial court was wrong to find his allegations had no basis in fact.
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July 18, 2024
4th Circ. Deems Paying For Sex 'Immoral' In Deportation Case
The Fourth Circuit denied a Salvadorian man's petition to stop his removal from the U.S. in a precedential ruling that soliciting prostitution is a "crime of moral turpitude" that disqualifies him from getting his deportation canceled even if the public stigma surrounding sex work is reducing.
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July 18, 2024
Creek Citizenship Case Paused Amid Tribal Court Controversy
The Muscogee (Creek) Nation Supreme Court has paused a dispute between descendants of those once enslaved by the tribe and its citizenship board after the two plaintiffs accused the tribe's national council of illegally appointing special justices to the panel as part of a targeted campaign against them.
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July 18, 2024
6th Circ. Looks To Wash Hands Of Waters Of US Appeal
An exasperated Sixth Circuit panel on Thursday looked for an easy way to dispatch Kentucky and industry groups' appeal of the dismissal of their challenges to a federal government rule defining the scope of the Clean Water Act.
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July 18, 2024
Tech Giants Can't Sink Slide-To-Unlock Patent At Fed. Circ.
Samsung, Apple and Google failed on Thursday to persuade a panel of Federal Circuit judges to kill a patent covering the idea of sliding-to-unlock a phone, purportedly developed by a small Sweden smartphone developer over a decade ago.
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July 18, 2024
Woman Can't Get Rectal Cancer Med Mal Suit Reinstated
A Texas appeals court won't let a woman revive her claims that a doctor with Houston Methodist Willowbrook failed to diagnose her rectal cancer, saying she failed to preserve for appeal the issue of whether the court properly granted a 30-day extension to file an amended expert report.
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July 18, 2024
Docs Get Same Hefty Opioid Sentences Despite Top Court Win
Two Alabama doctors accused of unlawfully prescribing patients fentanyl and other opioids failed to shave time off their lengthy prison sentences despite a landmark U.S. Supreme Court decision that raised the bar for such prosecutions.
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July 18, 2024
Meta And FTC Want DC Circ. Privacy Fight Kept Paused
Meta's D.C. Circuit bid to stop the Federal Trade Commission from modifying the parties' $5 billion privacy settlement should be kept on ice, both sides said Thursday, as the commission vies to toss Meta's trial court suit following a recent U.S. Supreme Court ruling.
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July 18, 2024
DeSantis Blasts Ousted Atty's 3rd Bid To 'Rush' 11th Circ. Call
Suspended Florida prosecutor Andrew Warren should not be allowed to "rush" the Eleventh Circuit's consideration of the prosecutor's case, which could have "sweeping implications" for Florida's government, Gov. Ron DeSantis told the appellate court Thursday.
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July 18, 2024
6th Circ. Questions If Kellogg 401(k) Claims Can Be Arbitrated
A Sixth Circuit panel on Thursday suggested the terms of Kellogg Co.'s retirement plan may bar a former accountant from bringing claims the plan was mismanaged, as the company tries to enforce an arbitration clause that arguably prevents planwide relief.
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July 18, 2024
Cannabis Co. Can't Snuff $300K Judgment In Contract Row
A Washington state appeals court has rejected a bid by cannabis company Royal Concentrates LLC and its owners to throw out a $300,000 judgment against them in a contract dispute with an investment partner, saying any error in the exclusion of a last-minute witness and evidence was harmless.
Expert Analysis
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PTAB Rulings Shed Light On Quantum Computing Patents
Recent Patent Trial and Appeal Board decisions on enablement rejections against quantum computing patent claims provide patent practitioners with valuable guidance on best practices for avoiding and overcoming enablement, say Fred Qiu and Alex Nie at Sheppard Mullin.
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To Make Your Legal Writing Clear, Emulate A Master Chef
To deliver clear and effective written advocacy, lawyers should follow the model of a fine dining chef — seasoning a foundation of pure facts with punchy descriptors, spicing it up with analogies, refining the recipe and trimming the fat — thus catering to a sophisticated audience of decision-makers, says Reuben Guttman at Guttman Buschner.
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Circuit Judge Writes An Opinion, AI Helps: What Now?
Last week's Eleventh Circuit opinion in Snell v. United Specialty Insurance, notable for a concurrence outlining the use of artificial intelligence to evaluate a term's common meaning, is hopefully the first step toward developing a coherent basis for the judiciary's generative AI use, says David Zaslowsky at Baker McKenzie.
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Fed. Circ. Rulings Crystallize Polymorph Patent 'Obviousness'
A comparison of two recent Federal Circuit obviousness challenge decisions regarding polymorph patents provides helpful insight into the assessment of screening arguments, particularly the issue of reasonable expectation of success, say Michael Green and John Molenda at Steptoe.
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DC Circ. Ruling Heightens HHS Contract Pharmacy Challenges
The D.C. Circuit's recent ruling that the Section 340B program does not bar manufacturers from restricting deliveries of discounted drugs to contract pharmacies represents a second strike against the U.S. Department of Health and Human Services' current contract pharmacy policy and raises the stakes surrounding an upcoming Seventh Circuit ruling on the same issue, say attorneys at Foley Hoag.
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Series
In The CFPB Playbook: Regulatory Aims Get High Court Assist
Newly emboldened after the U.S. Supreme Court last month found that the Consumer Financial Protection Bureau's funding is constitutional, the bureau has likely experienced a psychic boost, allowing its already robust enforcement agenda to continue expanding, say attorneys at Husch Blackwell.
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3 Infringement Defenses To Consider 10 Years Post-Nautilus
In the 10 years since the U.S. Supreme Court’s influential Nautilus ruling, the spirit of the “amenable to construction” test that the opinion rejected persists with many patent litigators and judges, so patent infringement defense counsel should always consider several key arguments, says John Vandenberg at Klarquist Sparkman.
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NY Ruling Paves A Court Payment Shortcut For More Creditors
A recent New York state appeals court ruling expands access to an expedited statutory procedure for court enforcement of promissory notes or unconditional guaranties, allowing more creditors to minimize the risk of potentially challenging litigation on threshold issues, says Alexander Levi at Friedman Kaplan.
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9th Circ. COVID 'Cure' Case Shows Perks Of Puffery Defense
The Ninth Circuit's March decision in a case surrounding a company's statements about a potential COVID-19 cure may encourage defendants to assert puffery defenses in securities fraud cases, particularly in those involving optimistic statements about breakthrough drugs that are still untested, say attorneys at Cahill Gordon.
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After Years Of Popularity, PAGA's Fate Is Up In The Air
The last two years held important victories for plaintiff-side employment attorneys in California Private Attorneys General Act litigation at the trial and appellate court levels, but this hotbed of activity will quickly lose steam if voters approve a ballot measure in November to enact the California Fair Pay and Employer Accountability Act, says Paul Sherman at Kabat Chapman.
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3 Recent Decisions To Note As Climate Litigation Heats Up
Three recent rulings on climate-related issues — from a New York federal court, a New York state court and an international tribunal, respectively — demonstrate both regulators' concern about climate change and the complexity of conflicting regulations in different jurisdictions, say J. Michael Showalter and Robert Middleton at ArentFox Schiff.
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Trending At The PTAB: Real Party In Interest And IPR
The Patent Trial and Appeal Board’s recent Luminex v. Signify decision, finding a complaint seeking indemnification may be treated as a public demand sufficient to establish a real party-in-interest, shows that the board continues to apply a broad and expansive definition to that term, say Yicong (Eve) Du and Yieyie Yang at Finnegan.
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Perspectives
Justices' Repeat Offender Ruling Eases Prosecutorial Hurdle
The U.S. Supreme Court’s decision last week in Brown v. U.S., clarifying which drug law applies to sentencing a repeat offender in a federal firearms case, allows courts to rely on outdated drug schedules to impose increased sentences, thus removing a significant hurdle for prosecutors, says attorney Molly Parmer.
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Class Actions At The Circuit Courts: May Lessons
In this month's review of class action appeals, Mitchell Engel at Shook Hardy discusses four notable circuit court decisions on topics from automobile insurance to securities — and provides key takeaways for counsel on issues including circuit-specific ascertainability requirements and how to conduct a Daubert analysis prior to class certification.
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Perspectives
Trauma-Informed Legal Approaches For Pro Bono Attorneys
As National Trauma Awareness Month ends, pro bono attorneys should nevertheless continue to acknowledge the mental and physical effects of trauma, allowing them to better represent clients, and protect themselves from compassion fatigue and burnout, say Katherine Cronin at Stinson and Katharine Manning at Blackbird.