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Appellate
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October 31, 2024
11th Circ. Nixes ERISA Claim To John Hancock's $100M Credit
John Hancock Life Insurance Co. had no fiduciary duty to pass on to retirement plans $100 million in foreign tax credits that it had taken from taxes paid on foreign investments, a three-judge panel of the Eleventh Circuit said in upholding a lower court ruling.
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October 31, 2024
Firms Fight Bid To Revive Malpractice Suit Over Liability Case
Two firms are asking the Delaware Supreme Court to affirm the dismissal of a malpractice suit filed by parents over damages sought for their child's "catastrophic injuries," allegedly caused by contamination from a chicken plant.
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October 30, 2024
5th Circ. Keeps Most No Surprises Act Provisions Intact
The Fifth Circuit on Wednesday upheld several provisions for calculating qualifying payments under a federal law aimed at protecting Americans from surprise medical bills, saying in a published opinion that the provisions were neither inconsistent with the law nor arbitrary and capricious.
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October 30, 2024
Class Asks Court To Revive Claims Against Florida Blue
A proposed class of Florida state employees enrolled in a Blue Cross and Blue Shield of Florida healthcare plan asked an appeals court Wednesday to revive their suit claiming the insurer designed a claims process to obstruct approval and payment of claims for mental health care.
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October 30, 2024
Del. Justices Probe Implications Of Tripadvisor Nevada Move
Delaware's justices closely questioned on Wednesday an attorney defending shopping and travel giant Tripadvisor Inc.'s bid to reincorporate in Nevada, pressing for frameworks that protect the interests of current stockholders as well as fiduciaries and investors seeking more business-friendly pastures.
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October 30, 2024
Texas Trying To 'Cloak' Uvalde Records Forever, Justices Hear
Justices on a Texas appeals court questioned why the state should get to keep almost three terabytes worth of data relating to the Uvalde school massacre away from the public eye, saying during oral arguments Wednesday that Texas was seemingly claiming it could hold onto all of its records.
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October 30, 2024
Calif. Panel Axes $10.6M Abex Asbestos Verdict
A California appellate panel has thrown out a $10.6 million asbestos verdict against Pneumo Abex LLC and ordered a new trial, finding that the trial court erred in granting a directed verdict that rejected the now-bankrupt braking lining manufacturer's sophisticated user defense.
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October 30, 2024
9th Circ. Says Calif. City Can't Sue State Over Housing Laws
The Ninth Circuit refused to revive the city of Huntington Beach, California's challenge to Golden State laws requiring it to build a certain number of housing units to keep up with population growth, writing in an order Wednesday that the city lacked standing to sue the state in federal court.
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October 30, 2024
'Less-Is-More' Ill. Justice Preps For Next Decade On The Court
With voters set to hand Illinois Supreme Court Justice Lisa Holder White her first full term on the high court bench next week, the justice said she is ready to tackle the next decade of cutting-edge legal issues. But don't expect florid phrasing in her future opinions.
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October 30, 2024
Fla. Vax Critic Urges Panel To Revive Advance Auto Injury Suit
A Florida woman Wednesday urged a state appellate panel to revive her personal injury lawsuit against Advance Auto Parts, saying a lower court wrongly tossed it after determining she misrepresented medical problems from a vehicle collision with a company driver based on her internet comments regarding COVID-19 vaccine reactions.
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October 30, 2024
'Politically Charged' Bid To Unseat Justice Alarms Colo. Bar
The Colorado Bar Association said Tuesday it was concerned about a campaign to unseat the Colorado Supreme Court's chief justice because of her vote to disqualify former President Donald Trump from the state's ballot, calling them "politically charged efforts that target the judiciary's independence."
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October 30, 2024
Texas Hospital Can't Escape $3.5M Blood Clot Verdict
A Texas appellate court largely affirmed a jury's $3.5 million verdict in a suit accusing a hospital of negligently treating a patient's blood clots and causing serious injuries, saying awards for future lost earnings and medical expenses were supported by the evidence.
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October 30, 2024
Google's Bid To Depose AG Has Texas Appeals Judge 'Extremely Troubled'
A Texas appeals court raised concerns about Google's claim that it had the right to depose the Texas Office of the Attorney General, with a justice saying during oral arguments Wednesday that giving Google a green light to interview lawyers representing the state could open a legal can of worms.
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October 30, 2024
Pa. Says GOP Regret Doesn't Merit Freeze On Mail-In Vote Fix
Pennsylvania told the U.S. Supreme Court on Wednesday the federal justices have no authority to freeze a ruling from the state's top court allowing voters whose mail-in ballots are rejected as defective to submit provisional ballots as replacements, adding that the Republican Party's alleged regret over its litigation strategy doesn't require action either.
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October 30, 2024
4th Circ. Keeps NC Voter Registration Suit In Fed. Court
The Fourth Circuit has ruled that a district court was wrong to send part of a Republicans' lawsuit challenging the legality of 225,000 voters' registrations in North Carolina back to state court.
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October 30, 2024
4th Circ. Mulls Shipping Honeywell Royalty Fight To Fed. Circ.
The Fourth Circuit grappled Wednesday with whether a fight over royalty payments between technology conglomerate Honeywell and its Japan-based rival had its roots in patent or contract law, which could dictate whether the appeal stays put or gets kicked over to the Federal Circuit.
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October 30, 2024
11th Circ. Says Daughter's B-Day Dooms Dad's Removal Relief
A Mexican father's hopes to remain in the country and not cause undue hardship for his American daughter were foiled when he didn't object to his final removal hearing getting scheduled for after her 21st birthday, a divided Eleventh Circuit panel ruled.
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October 30, 2024
4th Circ. Affirms Soldier's Loss Against Fluor Over Bombing
A split Fourth Circuit panel on Wednesday affirmed the dismissal of a soldier's lawsuit against Fluor Corp. over injuries he sustained in a 2016 suicide bombing in Afghanistan, holding the suit's state tort claims are preempted by a "combatant activities" exception in federal law.
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October 30, 2024
10th Circ. Upholds Sanctions Against Northwestern Law Prof
A panel of the Tenth Circuit on Wednesday affirmed a Colorado district court's sanctions against a Northwestern University law professor for his frivolous attempt to remove a probate dispute with his sister to federal court, finding in a brief, unpublished opinion that the sanctions were not an abuse of discretion.
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October 30, 2024
Conn. Justices Doubt Fertility Doc Suit Is For 'Wrongful Life'
Some justices of the Connecticut Supreme Court were skeptical Wednesday that a lawsuit accusing a fertility doctor of impregnating patients with his own sperm is a barred claim for wrongful life, pressing defense counsel on the now-grown children's allegations that they suffered psychological harm when they discovered the truth.
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October 30, 2024
Insurer Can't Cap Interest In Birth Injury Case, Patient Says
A patient suing his doctor over injuries he suffered at birth urged the Colorado Supreme Court not to limit interest on his medical malpractice damages to $1 million, arguing in a brief the doctor's insurer had chances to settle the case years ago and refused.
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October 30, 2024
5th Circ. Upholds Texas A&M's Defeat Of Hiring Bias Suit
The Fifth Circuit on Wednesday backed Texas A&M University's win over a professor's lawsuit claiming its hiring practices prevent white and Asian men's applications from being properly considered, finding his failure to actually seek a job at the school doomed his case.
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October 30, 2024
Ex-Ford Models CEO Can't Arbitrate Sex Misconduct Suit
A California appeals court won't let the former CEO of Ford Models send a woman's suit brought under a state sex trafficking law to arbitration, saying her allegations don't fall within the scope of the arbitration agreement she signed.
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October 30, 2024
3rd Circ. Told Medicare Drug Price Talks Not Voluntary
Three pharmaceutical companies told the Third Circuit on Wednesday the Medicare drug price negotiation program is anything but voluntary, arguing the appeals court should revive their challenges to the program because it is unconstitutional.
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October 30, 2024
Ga. Health Commish 'Overstepped' In Hospital Turf War
The Georgia Court of Appeals has tossed a ruling from the state's Commissioner for the Department of Community Health that would have allowed a metro Atlanta hospital system to open a new radiology center, saying Tuesday that the commissioner overstepped his review powers.
Expert Analysis
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Series
Playing Diplomacy Makes Us Better Lawyers
Similar to the practice of law, the rules of Diplomacy — a strategic board game set in pre-World War I Europe — are neither concise nor without ambiguity, and weekly gameplay with our colleagues has revealed the game's practical applications to our work as attorneys, say Jason Osborn and Ben Bevilacqua at Winston & Strawn.
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5th Circ. Shows Admin Rules Can Survive Court Post-Chevron
The Fifth Circuit's textual analysis of the Fair Labor Standards Act, contributing to its recent affirming of the U.S. Department of Labor’s authority to set an overtime exemption salary threshold, suggests administrative laws can survive post-Chevron challenges, say Jessi Thaller-Moran and Erin Barker at Brooks Pierce.
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Open Questions In Unsettled Geofence Warrant Landscape
The Fourth and Fifth Circuits recently reached radically divergent conclusions about the constitutionality of geofence warrants, creating an uncertain landscape in which defendants should assert and preserve the full range of conventional Fourth Amendment challenges, says Charles Fowler at McKool Smith.
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Applying High Court's Domestic Corruption Rulings To FCPA
After the U.S. Supreme Court narrowed the domestic corruption statutes in three decisions over the past year and a half, it’s worth evaluating whether these rulings may have an impact on Foreign Corrupt Practices Act enforcement, and if attorneys can use the court’s reasoning in international bribery cases, says James Koukios at MoFo.
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Bid Protest Spotlight: Debriefings, Timeliness, Documentation
James Tucker at MoFo examines three recent decisions from the Federal Circuit, the U.S. Government Accountability Office and the U.S. Court of Federal Claims concerning an agency's decision not to hold post-award discussions, a timeliness trap in certain Federal Supply Schedule procurements and the importance of providing contemporaneous documentation in price-evaluation protests.
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Conn. Court Split May Lead To Vertical Forum Shopping
As shown by a recent ruling in State v. Exxon Mobil, Connecticut state and federal courts are split on personal jurisdiction, and until the Connecticut Supreme Court steps in, parties may be incentivized to forum shop, causing foreign entities to endure costly litigation and uncertain liability, says Matthew Gibbons at Shipman & Goodwin.
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Mental Health First Aid: A Brief Primer For Attorneys
Amid a growing body of research finding that attorneys face higher rates of mental illness than the general population, firms should consider setting up mental health first aid training programs to help lawyers assess mental health challenges in their colleagues and intervene with compassion, say psychologists Shawn Healy and Tracey Meyers.
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Fla. Insurer-Breach Cases Split On Unrepaired Property Issue
A Florida appellate court's recent decision in Universal v. Qureshi is directly at odds with a 2020 decision from another Florida appellate court, and raises important questions for policyholders and insurers about the proper measure of damages in breach claims involving unrepaired property, say Andrea DeField and Yaniel Abreu at Hunton.
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Revisiting The Crime-Fraud Exception After Key Trump Cases
Evidence issues in the Jan. 6 Capitol riot and classified documents cases involving former President Donald Trump offer an opportunity to restudy elements and implications of the crime-fraud exception to attorney-client privilege and the work product doctrine, noting the courts' careful scrutiny of these matters, say Robert Hoff and Paul Tuchmann at Wiggin and Dana.
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Enviro Policy Trends That Will Continue Beyond The Election
Come October in a presidential election year, the policy world feels like a winner-take-all scenario, with the outcome of the vote determining how or even whether we are regulated — but there are several key ongoing trends that will continue to drive environmental regulation regardless of the election results, say J. Michael Showalter and Samuel Rasche at ArentFox Schiff.
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2 High Court Securities Cases Could Clarify Pleading Rules
In granting certiorari in a pair of securities fraud cases against Facebook and Nvidia, respectively, the U.S. Supreme Court has signaled its intention to align interpretations of the heightened pleading standard under the Private Securities Litigation Reform Act amid its uneven application among the circuit courts, say attorneys at V&E.
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Opinion
Failure To Use Apportionment Has Distorted Patent Damages
Apportionment is the solution to the problem of inflated patent infringement damages, and courts should return to focusing on the smallest saleable unit as the starting point for apportionment analysis, say William Lee at WilmerHale and Mark Lemley at Stanford Law School.
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Series
Collecting Art Makes Me A Better Lawyer
The therapeutic aspects of appreciating and collecting art improve my legal practice by enhancing my observation skills, empathy, creativity and cultural awareness, says attorney Michael McCready.
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A Look At Recent Case Law On Expedited Judgment In NY
A number of recent New York state court decisions clarify and refine the contours surrounding Civil Practice Law and Rule 3213, providing landlords, lenders and other payees guidance on how to seek accelerated judgment in certain litigation, says Alexander Lycoyannis at Holland & Knight.
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Opinion
Supreme Court Must Halt For-Profit Climate Tort Proliferation
If the U.S. Supreme Court does not seize the opportunity presented by Honolulu v. Sunoco to reassert federal authority over interstate pollution regulation, the resulting frenzy of profit-driven environmental mass torts against energy companies will stunt American competitiveness and muddle climate policy, says Gale Norton at Liberty Energy.