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Appellate
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August 02, 2024
Industry Backs Commonwealth's Appeal Of SEC's $93M Win
The Financial Services Institute is calling on the First Circuit to overturn the U.S. Securities and Exchange Commission's $93 million victory against member firm Commonwealth Financial Network, arguing the lower court's disgorgement analysis undermines a U.S. Supreme Court decision and leaves other investment advisers fearing "outsized" enforcement actions.
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August 02, 2024
5th Circ. Remands FDA's E-Cigarette Product Denials
The Fifth Circuit has once again said that the U.S. Food and Drug Administration acted unlawfully when the agency denied a number of requests from e-cigarette manufacturers seeking permission to sell their flavored vapes.
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August 02, 2024
Supporters Of TikTok Ban Make Case To DC Circ.
Federal lawmakers, state governments, former U.S. national security officials, human rights nonprofits and antimonopoly advocates all urged the D.C. Circuit to uphold Congress' TikTok sale-or-ban law Friday, the final day for amici briefs to be filed in the Chinese company's challenge.
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August 02, 2024
6th Circ. Upholds Federal Hospital's Win In Infant Death Suit
The Sixth Circuit has affirmed a judgment in favor of a U.S. government-funded hospital in a suit by a woman alleging malpractice caused the death of her son shortly after birth, finding the evidence supported a Kentucky federal judge's conclusion that doctors did not neglect the woman or the infant during delivery.
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August 02, 2024
5th Circ. Tosses 1988 Case In Galveston Voting Rights Ruling
Multiple minority groups cannot "combine forces" to bring vote dilution claims under a portion of the Voting Rights Act that prohibits race discrimination, the Fifth Circuit said, overruling a decades-old case in a blockbuster decision regarding Galveston County's voting districts.
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August 02, 2024
2nd Circ. Backs Conviction Over Fake-Therapy Scheme
The Second Circuit on Friday refused to overturn the conviction of a therapist who was found guilty of bilking a New York state program for developmentally disabled children, saying the trial court didn't err in declining to excuse a juror who had loose ties to a government witness.
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August 02, 2024
Panel Says Co. Forfeited $12.7M Claim Over Rail Project
A Colorado Court of Appeals panel has found that a construction company overstated how much it was owed from a public project to build a new Denver rail line and can't seek any remedy for that $12.7 million claim, according to an opinion that applied provisions of a public works law for the first time.
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August 02, 2024
Justices Urged To Hear Standing Issue For Patent Licensors
The U.S. Supreme Court has been asked to give its take on whether the terms of a decade-old loan can be used to create issues over legal standing and exclusionary rights in a lawsuit tied to radio frequency developed in the mid-2000s.
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August 02, 2024
Nonprofit Presses 5th Circ. To Keep 'Life-Saving' Parole Policy
A Massachusetts community group called on the Fifth Circuit Friday to maintain an embattled immigration program allowing Haitian nationals to be paroled into the U.S., arguing the policy's critics haven't shown the program harms them.
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August 02, 2024
9th Circ. Revives Indian's Asylum Bid To Flee Persecution
A split Ninth Circuit panel on Friday ruled the Board of Immigration Appeals wrongly denied an Indian national's asylum petition, saying the past threats and a beating he received from political opponents in India amounted to persecution.
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August 02, 2024
Patients Ink $1M Deal To Settle Pharmacy Data-Breach Claims
A home-delivery pharmacy service struck by a data breach in 2021 has agreed to pay $1 million to settle a class action brought by plaintiffs whose personal information was compromised, according to a Friday filing.
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August 02, 2024
Paper Cos. Challenge Superfund Liability At 6th Circ.
International Paper Co. and Weyerhaeuser Co. on Thursday asked the Sixth Circuit to reverse a Michigan federal judge who found that they can be sued for future cleanup costs of a Michigan Superfund site.
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August 02, 2024
3rd Circ. Backs Ex-NJ Firefighter's $50M Drug Fraud Sentence
The Third Circuit backed the eight-year prison sentence handed to a former New Jersey firefighter convicted for his role in a $50 million healthcare fraud scheme, rejecting his argument he was wrongly punished for taking his case to trial.
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August 02, 2024
4 ERISA Excessive Health Fee Suits To Watch
The Third Circuit will decide whether to revive a suit from MetLife workers alleging their pharmacy benefits were mismanaged, while suits proceed in district court against Wells Fargo and Johnson & Johnson alleging they violated the Employee Retirement Income Security Act via high drug costs a pharmacy benefit manager charged workers. Here, Law360 looks at four cases involving claims that employers violated ERISA by charging high healthcare costs — including for prescription drugs — that attorneys are watching.
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August 02, 2024
Colo. Appeals Panel Rejects Lower Tax Rate For Hospital
A Colorado rehabilitation hospital should be classified as a commercial property for tax purposes because it was predominantly designed for its services and not for residency, a state appeals court said, reversing a state assessment board.
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August 02, 2024
8th Circ. Says Mining Co. Can't Escape Peruvians' Claims
The Eighth Circuit refused to overturn a ruling greenlighting litigation filed by more than 1,400 Peruvian nationals against U.S. billionaire Ira Rennert and his holding company The Renco Group seeking to hold them liable for alleged lead poisoning tied to a smelting and refining complex in rural Peru.
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August 02, 2024
Full 6th Circ. Won't Allow Worker's Experts Back In Injury Suit
The full Sixth Circuit won't review a panel's decision to toss two expert witnesses a former Marathon Petroleum Co. LP barge worker relied on to support his claims that the company's failure to render prompt and proper treatment contributed to his worsening health.
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August 02, 2024
2nd Circ. OKs 33 Months For Ex-DOJ Paralegal's Video Leaks
In an unpublished opinion Friday, the Second Circuit upheld a former U.S. Department of Justice paralegal's 33-month sentence for helping her gang-affiliated son expose two associates who cooperated with a law enforcement probe into a 2018 robbery.
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August 02, 2024
Mich. Judge DQ'd Over 'Disdain' Of Ineffective-Counsel Claims
A Michigan state judge showed bias in favoring a criminal defendant's trial counsel who had previously clerked for the court, a state appeals court found Thursday, disqualifying the judge from presiding over the defendant's ineffective-assistance of counsel hearing.
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August 02, 2024
Mich. AG Says Enbridge 6th Circ. Rehearing Bid Is Meritless
Michigan Attorney General Dana Nessel is fighting Enbridge Energy's bid for a full Sixth Circuit rehearing on a decision to send a challenge to its Line 5 pipeline back to state court, saying none of the company's arguments against remand are viable.
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August 02, 2024
Manhattan DA Slams Trump's 'Regurgitated' Recusal Bid
The Manhattan district attorney pilloried Donald Trump's renewed request for the judge overseeing his hush money case to recuse himself, branding it a "regurgitated" attempt to rehash issues the court already decided without any new facts — besides Kamala Harris' presidential bid.
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August 02, 2024
DC Circ. Rejects Speech Rights Challenge To DMCA
A D.C. Circuit panel on Friday knocked down a challenge to a provision of the Digital Millennium Copyright Act that bars circumventing digital locks on copyrighted material, ruling that the law is in line with the First Amendment.
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August 02, 2024
Land Sale Deals Allowed In Colo. Eminent Domain Dispute
A Colorado appeals court ruled against the city of Westminster in its eminent domain action, ruling that three comparable sales contracts and an adjacent land parcel's $51.5 million purchase and sale contract can be admitted as evidence in a valuation trial.
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August 02, 2024
DC Circ. Says Precedent Allows H-1B Spousal Work Permits
The D.C. Circuit on Friday upheld an Obama-era program authorizing some spouses of highly skilled foreign workers to get work permits, rejecting a challenge from an organization of former IT workers who say they are being displaced by temporary visa holders.
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August 02, 2024
Plumbing Co. Sales Reps Owed OT, 1st Circ. Affirms
A group of more than 600 sales representatives at a Massachusetts-based plumbing and HVAC wholesaler are eligible for overtime pay, the First Circuit concluded on Thursday, affirming a lower court's finding on a Fair Labor Standards Act complaint brought by the government.
Expert Analysis
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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.
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The Fed. Circ. In May: The Printed Matter Doctrine's Scope
The Federal Circuit’s recent ruling in Ioengine v. Ingenico, which addressed the scope of the printed matter doctrine as applied to transmitted data or program code, restores the doctrine’s status as a relatively narrow part of patent law, say Jeremiah Helm and Sean Murray at Knobbe Martens.
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CFPB's Expanding Scope Evident In Coding Bootcamp Fine
The Consumer Financial Protection Bureau's recent penalty against a for-profit coding bootcamp that misrepresented its tuition financing plans is a sign that the bureau is seeking to wield its supervisory and enforcement powers in more industries that offer consumer financing, say Jason McElroy and Brandon Sherman at Saul Ewing.
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Fintech Compliance Amid Regulatory Focus On Sensitive Data
The Consumer Financial Protection Bureau's recent, expansive pursuit of financial services companies using sensitive personal information signals a move into the Federal Trade Commission's territory, and the path forward for fintech and financial service providers involves a balance between innovation and compliance, say attorneys at Wilson Sonsini.
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5th Circ. Bond Claim Ruling Shows Creditors Must Be Vigilant
In Raymond James & Associates v. Jalbert, the Fifth Circuit recently held that the bankruptcy debtor's indemnification obligations were discharged by the confirmed plan because the indemnified party failed to speak up, demonstrating that creditors must proactively protect their rights, says Joshua Lesser at Bradley Arant.
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4 Arbitration Takeaways From High Court Coinbase Ruling
The U.S. Supreme Court's May 23 decision in Coinbase v. Suski, which provides clarity to parties faced with successive contracts containing conflicting dispute resolution provisions, has four practical impacts for contracting parties to consider, say Charles Schoenwetter and Eric Olson at Bowman and Brooke.
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Fed. Circ. Scrapping Design Patent Tests Creates Uncertainty
The Federal Circuit last week discarded established tests for proving that design patents are invalid as obvious, leaving much unknown for design patent applicants, patentees and challengers, such as what constitutes analogous art and how secondary references will be considered and applied, say attorneys at Sterne Kessler.