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Appellate
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June 26, 2024
High Court 'Inadvertently' Posts Order Punting Abortion Case
The U.S. Supreme Court mistakenly released a draft order Wednesday that would allow emergency abortions in Idaho, with a majority saying the court was wrong to consider a state challenge at this time.
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June 26, 2024
Seat Belt Maker Can't Get 6th Circ. To Rethink Supplier Ruling
A Sixth Circuit panel won't reconsider its ruling that a manufacturer of car safety systems can't lock one of its suppliers into a contract to produce seat belt parts at old prices.
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June 26, 2024
Justices Say Bribery Law Doesn't Criminalize Gratuities
The U.S. Supreme Court on Wednesday narrowed the scope of a federal bribery law frequently used in corruption cases against local officials, in a 6-3 ruling in favor of a former Indiana mayor who argued the law only criminalizes quid pro quo bribery and not rewards given after an official act.
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June 26, 2024
High Court Axes Challenge To Biden Admin's Social Media Work
The U.S. Supreme Court wiped out a Fifth Circuit order prohibiting the Biden administration and several federal agencies from working with social media platforms to combat the spread of misinformation Wednesday, finding the states and individuals challenging the collaboration don't have standing to sue.
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June 25, 2024
Public Pensions Have Personnel Authority, Calif. Panel Rules
A county public employee retirement system has the authority to create employment classifications and set its employees' salaries, a California appellate court ruled Monday, reviving the Los Angeles County Employees Retirement Association's lawsuit seeking confirmation of its authority to make key personnel decisions.
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June 25, 2024
Project Veritas Rips Ore. Recording Ban At En Banc 9th Circ.
Project Veritas urged an en banc Ninth Circuit panel Tuesday to find that Oregon's decades-old statute that makes it a felony to secretly record people in public places violates the First Amendment, arguing the "dangerous" statute deters investigative journalism as "one of the broadest recording laws in the nation."
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June 25, 2024
FAA Not Off The Hook In Nevada Plane Crash, 9th Circ. Rules
The Federal Aviation Administration has been dragged back into a $6.5 million lawsuit accusing it of causing a fatal single-engine plane crash, killing its pilot and passenger, after the Ninth Circuit ruled that the agency's air traffic controller breached his duty of reasonable care.
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June 25, 2024
4th Circ. Revives Arranger Liability Claims In Superfund Suit
The Fourth Circuit revived claims Tuesday against six companies that arranged the disposal of hazardous waste in the 68th Street dump site in Baltimore County, Maryland, ruling that a lower court was wrong to say the companies needed to know that the waste was hazardous to be liable for cleanup costs.
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June 25, 2024
Pappas Restaurants 'Invented' Causes In Houston Airport Suit
The city of Houston told a state appeals court Tuesday that it should be shielded from a suit filed by Pappas Restaurants that alleges its procurement process caused Pappas to unfairly lose a 2023 contract with the William P. Hobby Airport because the contract for airport concessions did not require the city to spend any money.
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June 25, 2024
Texas Appeals Court Reverses Dallas Transit Contractor's Win
A Texas appeals court has revived a subcontractor's lawsuit against a company that oversees the Dallas Area Rapid Transit Authority's services for people with disabilities, saying this week the subcontractor's allegations were strong enough to withstand a motion to dismiss.
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June 25, 2024
Expired Diversity Visas Can't Be Processed, DC Circ. Says
The D.C. Circuit on Tuesday reversed several lower court orders requiring the U.S. Department of State to process applications for diversity visas for fiscal years 2020 and 2021 after the deadline, finding the district court lacked the authority to order such relief.
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June 25, 2024
Fed. Circ. Restores Amarin's Skinny Label Suit Against Hikma
The Federal Circuit revived litigation Tuesday accusing Hikma Pharmaceuticals USA Inc. of inducing physicians to infringe patents covering Amarin Pharma Inc.'s blockbuster cardiovascular drug Vascepa in a case over limited-use generics.
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June 25, 2024
GOP Lawmakers Urge 8th Circ. To Quash SEC's Climate Rule
A group of 35 Republican lawmakers on Tuesday moved to weigh in on the consolidated challenge to the U.S. Securities and Exchange Commission's recently adopted climate disclosure rule, arguing that the Eighth Circuit should vacate the measure due to a lack of clear congressional authorization.
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June 25, 2024
Split DC Circ. Backs Bush-Era Mining Deregulation
A divided D.C. Circuit panel on Tuesday upheld a Bush-era mining regulation that removed limits on how much land near a mining site can be used for secondary operations like waste disposal, ruling against environmental groups that accused regulators of illegally walking back a more restrictive interpretation of federal mining law.
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June 25, 2024
3rd Circ. Says Smith & Wesson Can't Sidestep NJ Subpoena
The gunmaker Smith & Wesson must comply with a subpoena from New Jersey to produce advertising materials requested in a consumer fraud case brought by the state, a divided Third Circuit panel ruled Tuesday.
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June 25, 2024
After Rahimi Win, Feds Set Sights On Felon Gun Ban
In a bid to capitalize on last week's U.S. Supreme Court ruling upholding a federal law that prohibits domestic abusers from possessing firearms, the U.S. solicitor general has called on the justices to next tackle a slew of constitutional challenges to the separate, sweeping ban on people convicted of felonies owning guns.
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June 25, 2024
No Need To Ship Net Neutrality Appeals To DC, 6th Circ. Told
The Sixth Circuit should stand up to the "concerted effort" to push administrative law matters out of other appellate courts and into the D.C. Circuit by refusing to transfer a bundled set of challenges to the FCC's new net neutrality rules, the U.S. Chamber of Commerce has said.
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June 25, 2024
FCC Says Anti-Redlining Rule 'Dutifully' Carries Out Law
The Federal Communications Commission has urged the Eighth Circuit to toss multiple industry challenges to its rules against discrimination in broadband deployment, saying its use of a wide-reaching standard for prohibited bias fits the law's requirements.
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June 25, 2024
Google Tells Fed. Circ. To Eye ITC's Powers If Chevron Ends
As the U.S. Supreme Court considers abolishing or narrowing precedent requiring deference to the legal interpretations of government agencies, a key part of the U.S. International Trade Commission's patent authority should be reconsidered, Google has told the full Federal Circuit.
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June 25, 2024
Firm Fights NC High Court Review Of Fight With Fla. Clients
Wilson Ratledge PLLC urged the North Carolina Supreme Court to reject a petition by two Florida-based companies to duck a breach of contract suit by the Raleigh-based law firm, arguing that the trial court correctly found there are enough significant contacts with the state to haul the two companies into North Carolina court.
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June 25, 2024
6th Circ. Revives Part Of Barge Worker's Lung Injury Suit
The Sixth Circuit has revived a maintenance and cure claim brought by a former crew member on one of Marathon Petroleum Co. LP's barges, saying there's enough evidence to create a question of whether his lung deterioration manifested during his service on the vessel.
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June 25, 2024
Conn. Justices Limit Malpractice Claims In Criminal Cases
Convicts who want to sue their attorneys for malpractice in their criminal cases must first have their convictions vacated on appeal or in habeas proceedings, with one exception, the Connecticut Supreme Court ruled Tuesday in a case brought against a New Haven lawyer and his law firm.
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June 25, 2024
9th Circ. Won't Revive Ex-County Worker's Race Bias Suit
The Ninth Circuit backed a Nevada county's defeat of a Black former juvenile probation officer's lawsuit claiming he was fired because he'd previously filed a discrimination suit against the county, saying Tuesday rumors and a supervisor's rude attitude weren't enough to sustain his bias allegations.
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June 25, 2024
9th Circ. Reopens Jehovah's Witness Preacher's Asylum Bid
The Ninth Circuit on Tuesday reopened a Jehovah's Witness preacher's petition seeking asylum after he was attacked and threatened by Salvadoran gang members for regularly preaching on the streets, finding his religion would be a central reason for the attacks, even without the gang's motive for financial gain through extortion.
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June 25, 2024
Fed. Circ. Won't Ship Patent Suit Against Apple Back To Texas
The Federal Circuit on Tuesday denied a bid from patent-owning technology company Haptic Inc. to send its infringement suit back to Texas after it was transferred to California earlier this year, saying it wasn't going to second-guess the lower court's decision.
Expert Analysis
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Del. Ruling Highlights M&A Deal Adviser Conflict Disclosures
The Delaware Supreme Court recently reversed the Court of Chancery's dismissal of challenges to Nordic Capital's acquisition of Inovalon, demonstrating the importance of full disclosure of financial adviser conflicts when a going-private merger seeks business judgment rule review, say attorneys at Debevoise.
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Key Antitrust Class Certification Questions Remain Unclear
The U.S. Supreme Court, by recently rejecting certiorari in Visa v. National ATM, turned down the opportunity to clarify how to analyze disputed evidence bearing on the certification of antitrust class actions, leaving the applicable standards unclear instead of resolving this split of authority, says Jonathan Berman at Jones Day.
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E-Discovery Quarterly: Recent Rulings On Text Message Data
Electronically stored information on cellphones, and in particular text messages, can present unique litigation challenges, and recent court decisions demonstrate that counsel must carefully balance what data should be preserved, collected, reviewed and produced, say attorneys at Sidley.
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What's Notable In JAMS' New Mass Arbitration Rules
The Judicial Arbitration and Mediation Services’ recently released guidelines, coming on the heels of similar American Arbitration Association amendments, suggests that mass arbitrations will remain an efficient means for consumers to vindicate their rights against companies, say Jonathan Waisnor and Brandon Heitmann at Labaton Keller.
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Fostering Employee Retention Amid Shaky DEI Landscape
Ongoing challenges to the legality of corporate diversity, equity and inclusion programs are complicating efforts to use DEI as an employee retention tool, but with the right strategic approach employers can continue to recruit and retain diverse talent — even after the FTC’s ban on noncompetes, says Ally Coll at the Purple Method.
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'Fat Leonard' Case Shows High Bar For Rescinding Guilty Plea
Prosecutors’ recent move in the “Fat Leonard” bribery case, supporting several defendants’ motions to withdraw their guilty pleas, is extremely unusual – and its contrast with other prosecutions demonstrates that the procedural safeguards at plea hearings are far from enough, says Sara Kropf at Kropf Moseley.
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Justices Clarify FAA But Leave Behind Important Questions
The U.S. Supreme Court's decision last month in Bissonnette v. LePage firmly shuts the door on any argument that the Federal Arbitration Act's Section 1 exemption is limited to transportation workers whose employers transport goods on behalf of others, but two major issues remain unresolved, say Joshua Wesneski and Crystal Weeks at Weil.
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Is The Digital Accessibility Storm Almost Over?
Though private businesses have faced a decadelong deluge of digital accessibility complaints in the absence of clear regulations or uniformity among the courts, attorneys at Epstein Becker address how recent federal courts’ pushback against serial Americans with Disabilities Act plaintiffs and the U.S. Department of Justice’s proposed government accessibility standards may presage a break in the downpour.
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Rebuttal
Double-Patenting Ruling Shows Terminal Disclaimers' Value
While a recent Law360 guest article seems to argue that the Federal Circuit’s Cellect decision last year robs patent owners of lawful patent term, the ruling actually identifies how terminal disclaimers are the solution to the problem of obviousness-type double patenting, say Jane Love and Robert Trenchard at Gibson Dunn.
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Series
Swimming Makes Me A Better Lawyer
Years of participation in swimming events, especially in the open water, have proven to be ideal preparation for appellate arguments in court — just as you must put your trust in the ocean when competing in a swim event, you must do the same with the judicial process, says John Kulewicz at Vorys.
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How Courts Are Interpreting Fed. Circ. IPR Estoppel Ruling
In the year since the Federal Circuit’s Ironburg ruling, which clarified the scope of inter partes and post-grant review estoppel, district court decisions show that application of IPR or PGR estoppel may become a resource-intensive inquiry, say Whitney Meier Howard and Michelle Lavrichenko at Venable.
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Mid-2024 FCA Enforcement And Litigation Trends To Watch
Reviewing notable False Claims Act trends and enforcement efforts in the last year and a half reveals that healthcare is a key enforcement priority for the U.S. Department of Justice, and the road ahead may bring clarification on Anti-Kickback Statute causation and willfulness standards, along with increased focus on private equity, cybersecurity and self-disclosure, say attorneys at Epstein Becker.
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2nd Circ. Eminent Domain Ruling Empowers Municipalities
The Second Circuit's recent decision in Brinkmann v. Town of Southold, finding that a pretextual taking does not violate the Fifth Amendment's takings clause, gives municipalities a powerful tool with which to block unwanted development projects, even in bad faith, say James O'Connor and Benjamin Sugarman at Phillips Lytle.
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Opinion
SEC Doesn't Have Legal Authority For Climate Disclosure Rule
Instead of making the required legal argument to establish its authority, the U.S. Securities and Exchange Commission's climate-related disclosure rule hides behind more than 1,000 references to materiality to give the appearance that its rule is legally defensible, says Bernard Sharfman at RealClearFoundation.
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Breaking Down 4th Circ. Pendent Appellate Jurisdiction Ruling
As illustrated by the Fourth Circuit's recent decision in Elegant Massage v. State Farm, denying class certification and granting a motion to dismiss, federal appellate courts continue to struggle with defining the scope of pendent appellate jurisdiction — or jurisdiction over nonfinal orders below, says Joan Steinman at the Chicago-Kent College of Law.