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Appellate
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July 30, 2024
No Damage Needed To Replace NJ Beach House, Panel Says
New Jersey property owners looking to replace an existing structure located in a flood hazard area don't have to show it's in an unusable condition, a state appellate panel ruled Tuesday, backing the state Department of Environmental Protection's denial of a request by neighbors to rescind a developer's permit to replace a beachfront home.
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July 30, 2024
PBMs Urge Justices To Reject Review Of Okla. Law Dispute
An industry trade group representing pharmacy benefits managers urged the U.S. Supreme Court not to disturb its Tenth Circuit victory, which held that an Oklahoma statute regulating PBMs ran afoul of preemption provisions in both the Employee Retirement Income Security Act and Medicare Part D.
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July 30, 2024
DC Circ. Wants Chevron Ruling Addressed In GHG Case
The D.C. Circuit asked challengers of the U.S. Environmental Protection Agency's tighter greenhouse gas emissions standards for vehicles to discuss how the litigation is affected by recent court decisions, including the U.S. Supreme Court's blockbuster ruling that undid what is known as Chevron deference.
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July 30, 2024
9th Circ. Says Migrant Fought For Hearing In Wrong Venue
The Ninth Circuit said Monday a California federal court should not have granted a detained migrant's bid for a bond hearing because he filed it in the wrong place and did not name the proper parties, ruling for the first time that detained migrants face the same hurdles for such petitions as other detainees.
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July 30, 2024
SF Fed Tells 9th Circ. Banks Not Entitled To Master Accounts
The San Francisco Federal Reserve Bank told the Ninth Circuit that it was not obligated to give a master account to an Idaho trade finance fintech, arguing federal law does not make these payment system gateways available to everyone regardless of risk.
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July 30, 2024
Justices Urged To Certify Class Over Firm's Illegal Faxes
A Georgia-based recruiting agency is asking the U.S. Supreme Court to toss a Fourth Circuit ruling that the Telephone Consumer Protection Act's fax machine definition is limited to standalone fax machines and does not include online fax services, saying the January decision creates a circuit split that needs settling.
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July 30, 2024
NJ Judge Off The Bench For Cursing, Gifting Giants Tickets
A New Jersey municipal judge accused of using profanity in the courtroom, fraternizing with police officers at a Hooters restaurant and gifting New York Giants tickets to the town's code enforcement officer has been removed from the bench, the state Supreme Court said Tuesday.
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July 30, 2024
Gruden Makes Last-Ditch Bid To Keep NFL Feud In Court
Former NFL coach Jon Gruden is making another push to keep his contract interference and conspiracy suit against the league in open court, calling on the entire Nevada Supreme Court to examine whether the case should be shuffled to arbitration.
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July 30, 2024
Fed. Circ. Backs Ga. ALJ's Firing For 'Unbecoming' Conduct
The Federal Circuit has upheld the removal of a Georgia administrative law judge over a pattern of "deficiencies" uncovered in his rulings, insubordination, and a workplace tirade in which he reportedly told a supervisor she was "worse than a Nazi," the court said Tuesday.
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July 30, 2024
MoFo Lands Akin Gump Appellate Pro In San Francisco
Morrison Foerster LLP is expanding its litigation team, announcing Tuesday it is bringing in a former San Francisco city attorney most recently with Akin Gump Strauss Hauer & Feld LLP as a partner in its San Francisco office.
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July 30, 2024
GAO Says Courts Should Improve Staff Complaint Collection
The federal judiciary, which has over 30,000 employees, has taken actions to address misconduct in the workplace since 2017, but one area in need of improvement is its data collection, according to a U.S. Government Accountability Office report released Tuesday.
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July 30, 2024
4th Circuit Sends Fees Math In OT Cases Back To Va. Court
A Virginia federal court didn't support its decision to award nearly $420,000 in attorney fees and costs in two consolidated suits seeking unpaid overtime from a healthcare company, the Fourth Circuit ruled, sending the cases back.
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July 30, 2024
9th Circ. Revives Union Carpenters' Retirement Fight
The Ninth Circuit revived a suit by carpenters alleging union pension trustees broke federal benefits law by investing retirement plan assets in dicey index funds that lost over $250 million in the 2020 market downturn, finding Tuesday that the workers' mismanagement claims should proceed to discovery.
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July 30, 2024
Mich. COVID-19 Liability Law Shields Regular Healthcare Too
A 2020 law protecting healthcare providers and facilities from liability for their response to the early COVID-19 pandemic also applies to regular care provided during that time, a Michigan appellate panel said, finding that resources diverted because of the state's response affected other areas of care.
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July 30, 2024
Fla.'s Workplace DEI Training Rules Get Permanently Blocked
A Florida federal judge made permanent a ban on a state law provision that prevents employers from promoting various sex- and race-based concepts in diversity training sessions after the state said it wouldn't challenge an Eleventh Circuit ruling upholding a preliminary injunction on the measure.
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July 30, 2024
Quinn Emanuel Must Prove Authority In $486M Award Fight
A divided D.C. Circuit panel ruled Tuesday that a lower court should have determined whether Quinn Emanuel Urquhart & Sullivan LLP had authority to represent Doraleh Container Terminal SA before deciding whether to enforce a $486 million arbitral award issued against Djibouti.
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July 30, 2024
What Mass. Attys Will Be Watching In The 2nd Half Of 2024
Two potentially sweeping Massachusetts high court rulings and a long-awaited employment bill lingering in the State House are among the issues Bay State attorneys say they are monitoring closely heading into the latter half of 2024.
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July 30, 2024
Ex-Ch. 11 Trustee Can't Retroactively File Legal Fees
A bankruptcy trustee who is removed can't retroactively receive administrative expenses, the Fourth Circuit has ruled, saying a former bankruptcy trustee is not allowed to later file an application for professional fees.
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July 30, 2024
Virginia Appeals Court Tosses Record $2B Trade Secrets Verdict
The Court of Appeals of Virginia on Tuesday reversed Appian Corp.'s $2 billion trade secrets judgment against competitor Pegasystems Inc., saying that the trial court made a series of errors on its way to the biggest jury award in state history and that a new trial was warranted.
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July 29, 2024
5th Circ. Pauses DOT's New 'Junk Fees' Rule Amid Review
The Fifth Circuit on Monday agreed to temporarily block a U.S. Department of Transportation rule requiring airlines to clearly disclose add-on fees upfront while the appellate court reviews the rule, which has been challenged by major airlines and airline associations.
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July 29, 2024
8th Circ. Tosses 'Windfall' $79M Legal Fee In T-Mobile Suit
The Eighth Circuit on Monday threw out a $78.7 million attorney fee award for plaintiffs' attorneys who negotiated a $350 million settlement with T-Mobile over a massive data breach in 2021, saying the award amounts to a "windfall" for class counsel.
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July 29, 2024
Calif. High Court Says Co-Worker's Slur Can Be Harassment
The California Supreme Court on Monday revived a race bias suit brought by a longtime employee of the San Francisco District Attorney's Office, finding that her co-worker's one-time use of a racial slur may indeed have been so severe that it created a hostile work environment.
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July 29, 2024
11th Circ. Affirms Ga. Prison Officer Immunity For Strip Search
An Eleventh Circuit panel said that Georgia prison officers violated a woman's constitutional rights when they subjected her to a strip search and manual body cavity search during a visit to see her incarcerated husband, but precedent blocks it from overturning a ruling holding the officers were entitled to qualified immunity.
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July 29, 2024
9th Circ. Partly Revives BofA Customers' ATM Fee Suit
The Ninth Circuit on Monday partially reinstated a proposed class action alleging Bank of America charged out-of-network fees for balance inquiries customers said they didn't know they authorized on ATMs, finding customers can be charged under their contract only if it's clear they sought the information and initiated the transaction.
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July 29, 2024
Chemical Groups Say Chevron Sinks EPA Ethylene Oxide Rule
A chemical company and two chemical associations are telling the D.C. Circuit that a recent U.S. Supreme Court decision undermines the federal government's risk value for ethylene oxide, which they are challenging as being too high.
Expert Analysis
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Bankruptcy Ruling Shifts Lease Rejection Claim Calculation
A New York federal court’s recent ruling in In re: Cortlandt provides guidance on how to calculate a landlord's damages claim when a bankruptcy debtor rejects a lease, changing from an approach that considers the remaining rent due under the lease to one that considers the remaining time, say Bethany Simmons and Noah Weingarten at Loeb & Loeb.
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Don't Use The Same Template For Every Client Alert
As the old marketing adage goes, consistency is key, but law firm style guides need consistency that contemplates variety when it comes to client alert formats, allowing attorneys to tailor alerts to best fit the audience and subject matter, says Jessica Kaplan at Legally Penned.
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10b-5 Litigation Questions Follow Justices' Macquarie Ruling
Last month, the U.S. Supreme Court held in Macquarie v. Moab that pure omissions are not actionable under U.S. Securities and Exchange Commission Rule 10b–5(b), creating a slightly higher bar for plaintiffs and setting the stage for further litigation over several issues, say Steve Quinlivan and Sean Colligan at Stinson.
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Series
Walking With My Dog Makes Me A Better Lawyer
Thanks to my dog Birdie, I've learned that carving out an activity different from the practice of law — like daily outdoor walks that allow you to interact with new people — can contribute to professional success by boosting creativity and mental acuity, as well as expanding your social network, says Sarah Petrie at the Massachusetts Attorney General’s Office.
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What Calif. Eviction Ruling Means For Defaulting Borrowers
A California appellate court's recent decision in Homeward Opportunities v. Taptelis found that a defaulting borrower could not delay foreclosure with an improperly served notice of pendency of action, but leaves open a possibility for borrowers to delay eviction proceedings merely by filing lawsuits, say Anne Beehler and Krystal Anderson at Holland & Knight.
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Think Like A Lawyer: Follow The Iron Rule Of Trial Logic
Many diligent and eager attorneys include every good fact, point and rule in their trial narratives — spurred by the gnawing fear they’ll be second-guessed for leaving something out — but this approach ignores a fundamental principle of successful trial lawyering, says Luke Andrews at Poole Huffman.
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Court Clerk Error Is No Excuse For A Missed Deadline
Two recent Virginia Court of Appeals decisions in which clerical errors led to untimely filings illustrate that court clerks can be wrong about filing deadlines or the date an order was entered, underscoring the importance of doing one's own research on filing requirements, says Juli Porto at Blankingship & Keith.
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Circuit Split Brews Over Who's A Securities Seller Under Act
A Securities Act section that creates private liability for the sale of an unregistered security is rapidly becoming a favored statute for plaintiffs to wield against participants in both the digital asset and traditional securities markets, but the circuit courts have diverged on who may be held liable for these violations, say Jeffrey L. Steinfeld and Daniel Aronsohn at Winston & Strawn.
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Fed. Circ. Ruling Shows Difficulty Of Proving Deceptive Intent
The Federal Circuit’s recent Freshub v. Amazon decision demonstrates how proving the deceptive intent requirement for inequitable conduct can be challenging, even when there is a five-year delay after abandonment before revival, say attorneys at BCLP.
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Banks Have Won Syndicated Loan Battle, But Not The War
Though the U.S. Supreme Court's recent denial of certiorari in Kirschner v. JPMorgan preserves the status quo that syndicated loans are not securities, the U.S. Securities and Exchange Commission's discomfort suggests that the underlying issues have not been fully resolved, say attorneys at Crowell & Moring.
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The Art Of Asking: Leveraging Your Contacts For Referrals
Though attorneys may hesitate to ask for referral recommendations to generate new business, research shows that people want to help others they know, like and trust, so consider who in your network you should approach and how to make the ask, says Rebecca Hnatowski at Edwards Advisory.
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Trending At The PTAB: Permissible New Reply Arguments
In the time since the Federal Circuit’s Axonics ruling, the Patent Trial and Appeal Board has allowed petitioners to raise new unpatentability grounds in response to unforeseeable claim constructions in petitions, and reiterated that a petition need not anticipate every argument that may be raised in the response, say Joseph Myles and Timothy May at Finnegan.
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Class Actions At The Circuit Courts: April Lessons
In this month's review of class action appeals, Mitchell Engel at Shook Hardy discusses three notable circuit court decisions on topics from the Class Action Fairness Act to consumer fraud — and provides key takeaways for counsel on issues including CAFA’s local controversy exception and Article III standing to seek injunctive relief.
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A Deep Dive Into High Court's Permit Fee Ruling
David Robinson and Daniel Golub at Holland & Knight explore the U.S. Supreme Court's recent ruling that a local traffic impact fee charged to a California property owner may be a Fifth Amendment taking — and where it leaves localities and real estate developers.
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Opinion
The Case For Overturning Florida Foreclosure Ruling
A Florida appellate court's recent decision in Desbrunes v. U.S. Bank National Association will potentially put foreclosure cases across the state in jeopardy, and unless it is reconsidered, foreclosing plaintiffs will need to choose between frustrating and uncertain options in the new legal landscape, say Sara Accardi and Paige Knight at Bradley.