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Appellate
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October 17, 2024
Under Pot Law, Preschool Isn't 'School,' Ariz. Court Rules
A divided Arizona appeals court on Thursday shut down a challenge to a state decision that granted a medical marijuana license to a dispensary located near a preschool after finding that state law treats "public or private schools" and "preschools" as two different things.
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October 17, 2024
Consumer Groups Back DOT In Airline Fees Rule Fight
Consumer advocates have told the Fifth Circuit that a U.S. Department of Transportation rule requiring airlines to more clearly disclose add-on fees upfront would curtail the industry's trickery in airfare marketing, foster competition and save individual travelers frustration, time and money.
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October 17, 2024
Colorado Judges Doubt Giuliani Shielded For 2020 Lies
Colorado appellate judges appeared skeptical Thursday of Rudy Giuliani's bid to escape a defamation lawsuit by a former executive for Dominion Voting Systems, noting that they already found Giuliani's statements weren't protected in a related appeal.
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October 17, 2024
Monsanto Leveraged Judge Shuffle In Enviro Suit, Court Told
A former customer of Bayer AG unit Monsanto urged a New Jersey appeals panel on Thursday to revive its suit seeking to avoid covering the agrochemical giant for environmental enforcement claims, arguing that the company took advantage of a change in jurists presiding over the case.
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October 17, 2024
7th Circ. Won't Give Injured Prof Another Shot At ADA Suit
The Seventh Circuit backed the dismissal Thursday of a professor's suit claiming she was denied tenure out of disability bias after she suffered a traumatic brain injury, ruling there's no evidence bias influenced the denial and her request for a "do-over" wasn't a reasonable accommodation.
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October 17, 2024
Justices Urged To Fix 'Novel Misreading' Of IP Safe Harbor
Edwards Lifesciences is asking the U.S. Supreme Court to rein in what's covered under a drug-development safe harbor to avoid patent infringement, saying the Federal Circuit wrongfully expanded it in a "novel misreading" of the law.
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October 17, 2024
Wash. Justices Say No Addresses Needed For Tax Ballot Items
Washington's secretary of state didn't need to check addresses when validating signatures for five voter initiatives slated for the November ballot, including measures to repeal the state's capital gains tax and to bar income taxes, the state Supreme Court said Thursday.
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October 17, 2024
Cisco Foe Takes Computer Security Patent Feud To Fed. Circ.
A cybersecurity startup that saw its multibillion-dollar patent win against Cisco erased is pinning the failure, in part, on a new judge's "eleventh-hour, sua sponte claim construction" and is asking the Federal Circuit to overturn it.
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October 17, 2024
Pa. Appeals Court Stops Damaged Philly Building's Demolition
A Pennsylvania appellate court has tossed a lower court order that required the demolition of a seven-story Philadelphia apartment building that had a partial façade collapse in September 2022.
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October 17, 2024
6th Circ. Can't Ax Captive Audience Memo, NLRB Atty Says
A Michigan federal judge properly tossed a challenge to a memo that outlined why National Labor Relations Board general counsel Jennifer Abruzzo thinks so-called captive audience meetings are illegal, Abruzzo told the Sixth Circuit, saying the memo isn't the kind of agency action that's reviewable in federal courts.
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October 17, 2024
Oregon Appeals Court Says E-Cig Rules Violate Free Speech
Oregon's intermediate appellate court ruled Wednesday that a state law governing how e-cigarettes and cannabis vapes can be packaged violated guarantees of free speech enshrined in the state's constitution.
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October 17, 2024
Contractor Tells Fed. Circ. Navy Improperly Canceled Deal
A contractor urged the Federal Circuit to abandon a lower court finding that the U.S. Navy reasonably canceled an agreement for it to provide engineering services for a Florida naval air station, saying in a filing Wednesday that a termination memorandum the government submitted to the court appears to be "fraudulent."
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October 17, 2024
3rd Circ. Undoes Arbitration Denial In Experian Row
The Third Circuit on Thursday clarified its standard for when courts should order discovery into whether a dispute should be arbitrated, in an opinion that said a New Jersey woman had admitted she signed an arbitration agreement with an affiliate of Experian that could apply to her Fair Credit Reporting Act lawsuit.
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October 17, 2024
Mich. Urges 6th Circ. To Toss Enbridge's Line 5 Countersuit
Michigan's governor has told the Sixth Circuit she and another state official are immune from Enbridge Energy LP's lawsuit over efforts to shut down a natural gas and oil pipeline because the dispute implicates state sovereignty issues that place it beyond federal jurisdiction.
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October 17, 2024
Disney Can't Get Quick Appeal In Actor's Political Firing Suit
A California federal judge refused to sign off on Walt Disney Co.'s bid to immediately challenge a decision that kept a suit alive from a former Star Wars actor who said she was fired for expressing her political views, saying an appeal to the Ninth Circuit would be premature.
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October 17, 2024
Athletes 'Easily' Clear 3rd Circ. Employee Test, Atty Says
The lead attorney who persuaded the Third Circuit to hold that college athletes may be employees under federal wage law said Thursday that his clients are clearly employees under the test the court set out, drawing a favorable comparison to work-study participants.
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October 17, 2024
Ex-Defender Returns To 4th Circ. With Sex Bias Case
A former North Carolina public defender appealed her bias case against the judiciary to the Fourth Circuit for a second time after a North Carolina federal judge refused to reconsider his ruling that she did not provide adequate notice to her ex-employer before filing suit.
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October 17, 2024
Justices Told Woman Can't Dispute Levy For Paid-Off Tax
A Third Circuit decision allowing a woman to challenge her tax liabilities in a property-seizure proceeding should be overturned, the Internal Revenue Service told the U.S. Supreme Court, saying her case became moot after the agency withheld her tax refunds to pay off her debt.
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October 17, 2024
5th Circ. Tosses Policyholder's Hurricane Coverage Suit
The Fifth Circuit affirmed the dismissal of a National Flood Insurance Program policyholder's suit seeking coverage for at least $100,000 in hurricane damage to a Mississippi beachfront property, saying it was time-barred and failed to allege any extracontractual duties.
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October 17, 2024
States, Industry Urge DC Circ. To Scrap Truck GHG Rule
Dozens of states and industry groups are imploring the D.C. Circuit to pull the plug on a U.S. Environmental Protection Agency rule setting greenhouse gas emission standards for heavy-duty vehicles, arguing it mandates a transition to electric vehicles that the agency has no authority to push.
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October 17, 2024
House Resolution Introduced To Laud Hispanics In Legal Field
A Florida representative in the U.S. Congress earlier this week introduced a resolution to designate Oct. 15, 2024, as a day to "honor the diaspora of Hispanic culture, and the representation of Hispanics in the legal profession and the judiciary."
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October 16, 2024
$3.6M Ruling Against Merchant Cash Advance Co. Reversed
An Ohio appellate court on Wednesday reversed a trial court's ruling allowing First Financial Bank to recover roughly $3.6 million from a merchant cash advance company, ruling — in a matter of first impression — that under Ohio law, a transferee of funds from a deposit account is protected from conversion claims unless collusion is involved.
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October 16, 2024
Cos. Slam Spain's Bid For DC Circ. Redo Over $395M Suits
Three investment companies have opposed Spain's request for a rehearing in the D.C. Circuit over the appeals court's ruling that district courts have jurisdiction to enforce about $395 million in arbitral awards issued against the country after it rolled back economic incentives for renewable energy projects.
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October 16, 2024
Feds, Md. Tell 4th Circ. Beltway Lane Expansion Is Fully Vetted
Federal and Maryland state transportation officials have told the Fourth Circuit that they thoroughly vetted air pollution, traffic congestion and other environmental concerns before approving an estimated $4 billion highway expansion project outside Washington, D.C., arguing that environmental groups have no grounds to sue to block the project.
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October 16, 2024
11th Circ. Won't Nix OK Of Guatemalan Power Plant Award
The Eleventh Circuit refused Wednesday to vacate an arbitral award issued following a dispute over an ill-fated Guatemalan power plant construction project, rejecting arguments that the tribunal improperly turned a blind eye to alleged corruption underlying the project.
Expert Analysis
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How To Grow Marketing, Biz Dev Teams In A Tight Market
Faced with fierce competition and rising operating costs, firms are feeling the pressure to build a well-oiled marketing and business development team that supports strategic priorities, but they’ll need to be flexible and creative given a tight talent market, says Ben Curle at Ambition.
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High Court's Expert Ruling May Help Health Fraud Defendants
The U.S. Supreme Court's decision in Diaz v. U.S. appears to give the government a powerful new tool in calling its own agents as expert witnesses, but it could also benefit defense counsel in criminal healthcare fraud and other white collar criminal cases that arise in complex legal or regulatory environments, say attorneys at Holland & Knight.
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Patent Lessons From 5 Federal Circuit Reversals In June
A look at June cases where the Federal Circuit reversed or vacated decisions by the Patent Trial and Appeal Board or a federal district court highlights a potential path for branded drugmakers to sue generic-drug makers for off-label uses, potential downsides of violating a pretrial order offering testimony, and more, say Denise De Mory and Li Guo at Bunsow De Mory.
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Jarkesy's Impact On SEC Enforcement Will Be Modest
Though the U.S. Supreme Court’s recent U.S. Securities and Exchange Commission v. Jarkesy decision found that fraud defendants have a constitutional right to a jury trial, the ruling will have muted impact on the agency’s enforcement because it’s already bringing most of its cases in federal court, say Jeremiah Williams and Alyssa Fixsen at Ropes & Gray.
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Series
Rock Climbing Makes Me A Better Lawyer
Rock climbing requires problem-solving, focus, risk management and resilience, skills that are also invaluable assets in my role as a finance lawyer, says Mei Zhang at Haynes and Boone.
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NY Ruling Offers A Foreclosure Road Map For Lenders
A New York appellate court recently upheld a summary judgment ruling in favor of a commercial lender's foreclosure in U.S. Bank v. 1226 Evergreen Bapaz, illustrating the proofs lenders will need to prosecute a foreclosure action, especially where the plaintiff is an assignee of the originating lender, say attorneys at Sherman Atlas.
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What Chevron's End Means For How Congress Does Business
The U.S. Supreme Court’s recent Loper Bright Enterprises v. Raimondo decision, overturning the Chevron doctrine, will have a far-reaching impact across the entire public policy life cycle, beginning with how Congress writes its laws and extending through agency implantation and judicial review, say attorneys at K&L Gates.
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Contract Disputes Recap: Preserving Payment Rights
Stephanie Magnell and Zachary Jacobson at Seyfarth examine three recent decisions that together illustrate the importance of keeping accurate records and adhering to contractual procedures to avoid inadvertently waiving contractual rights to cost reimbursements or nonroutine payments.
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Think Like A Lawyer: Dance The Legal Standard Two-Step
From rookie brief writers to Chief Justice John Roberts, lawyers should master the legal standard two-step — framing the governing standard at the outset, and clarifying why they meet that standard — which has benefits for both the drafter and reader, says Luke Andrews at Poole Huffman.
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Alice Step 2 Trends Show Courts' Extrinsic Evidence Reliance
A look at recent trends in how district courts are applying Step 2 of the Alice framework shows that courts have increasingly relied on extrinsic evidence to help determine whether a claimed invention is "well-understood, routine, and conventional," says Jonathan Tuminaro at Sterne Kessler.
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Opinion
OFAC Sanctions Deserve To Be Challenged Post-Chevron
The U.S. Supreme Court's Loper Bright decision opens the door to challenges against the Office of Foreign Assets Control's sanctions regime, the unintended consequences of which raise serious questions about the wisdom of what appears to be a scorched-earth approach, says Solomon Shinerock at Lewis Baach.
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How Calif. Ruling Alters Worker Arb. Agreement Enforcement
The California Supreme Court’s recent ruling in Ramirez v. Charter Communications should caution employers that while workers’ arbitration agreements will no longer be deemed unenforceable based on their number of unconscionable provisions, they must still be fair and balanced, says Sander van der Heide at CDF Labor.
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Opinion
After Jarkesy, IRS Must Course-Correct On Captive Insurance
The U.S. Supreme Court’s recent Securities and Exchange Commission v. Jarkesy decision has profound implications for other agencies, including the IRS, which must stop ignoring due process and curtailing congressional intent in its policing of captive insurance arrangements, says Peter Dawson at the 831(b) Institute.
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The Rise Of State And Local Environmental Leadership
While Congress is deadlocked, and a U.S. Supreme Court with a hostility toward the administrative state aggressively dismantles federal environmental oversight, state and local governments are stepping up with policies to shape a more sustainable future for all species, says Jonathan Rosenbloom at Albany Law School.
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Questions Linger About DTSA's Scope After Motorola Ruling
The Seventh Circuit’s recent ruling in Motorola v. Hytera, which held that the Defend Trade Secrets Act applies extraterritorially, does not address whether an act that furthers misappropriation must be committed by the defendant in order to satisfy the law's extraterritoriality requirement, say Ilissa Samplin and Grace Hart at Gibson Dunn.