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Appellate
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August 15, 2024
Ariz. GOP Backs RNC's High Court Bid To Stay Voting Order
The Arizona Republican Party is backing the Republican National Committee and two of the state's top lawmakers in asking U.S. Supreme Court Justice Elena Kagan to halt an order over a voting law that is pending appeal at the Ninth Circuit, arguing the district court's order has a direct and tangible effect on its ability to promote the party's policies.
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August 15, 2024
'What Is An NFT?': 9th Circ. Mulls Novel Bored Ape TM Fight
A Ninth Circuit judge considering whether a trial court correctly found artists owe millions for ripping off trademarks on the Bored Ape Yacht Club nonfungible token collection questioned Thursday whether the NFT market is comparable to typical consumer markets, rhetorically asking, "What are we even talking about? What is an NFT?"
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August 15, 2024
Fla. Court Wrongly Blocked Health Report Without Evidence
A Florida state appeals court has reversed a state court order blocking the release of an investigative report related to a man's suicide after he was discharged from a mental health center, saying the circuit court shouldn't have denied a request by the man's father for the report based on an argument from the center's managing entity without evidence.
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August 15, 2024
Gas Co. Tells Chancery Texas Settlement Spikes Pipeline Duty
A settlement and Texas court's direction to vacate an earlier arbitration award has revived an Energy Transfer LP subsidiary's bid to scuttle a Delaware Court of Chancery order requiring it to build costly, high-pressure natural gas pipelines for free.
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August 15, 2024
Ex-Drew Eckl Attys Seek New Firm's Escape From Arbitration
Drew Eckl & Farnham LLP and former firm attorneys now at Burke Moore Law Group LLP launched dueling arguments in the Georgia Court of Appeals this week over Burke Moore's bid to undo a court order requiring it to arbitrate a fees dispute between Drew Eckl and Burke Moore founders.
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August 15, 2024
Ford Wants Judge Booted Off Paraplegic's Suit After Podcast
Ford Motor Co. pushed the North Carolina Court of Appeals to remove state Superior Court Judge Hoyt Tessener from a product liability suit, arguing the jurist made disparaging remarks about the company after prosecuting a similar suit against the carmaker years ago as a private attorney.
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August 15, 2024
Prof Rips DOJ, VW's 9th Circ. Bid To Shield Jones Day Docs
A Loyola Marymount University professor has urged the Ninth Circuit to shut down the U.S. Department of Justice and Volkswagen AG's relentless "obfuscation" in a long-running dispute over access to confidential Volkswagen documents that were part of a Jones Day investigation into the automaker's 2015 emissions-cheating scandal.
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August 15, 2024
Federal Circuit Upholds Duties On Steel Nails From Taiwan
The Federal Circuit upheld the "dumping margin" duties charged on certain Taiwanese nail imports, finding that the U.S. Department of Commerce had been unable to wring detailed data out of some of the producers and was thus justified in relying on outside facts when calculating the rates.
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August 15, 2024
NY Asks Top Court To Nix Ruling Against Ethics Commission
The Office of the New York State Attorney General has submitted a brief urging the state's highest court to reverse a finding against an ethics commission that former Gov. Andrew Cuomo convinced a state court was unconstitutional.
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August 15, 2024
Colorado, Suncor Back EPA In Denver Refinery Permit Fight
Colorado and Suncor Energy USA Inc. told the Tenth Circuit the U.S. Environmental Protection Agency was right to refuse to object to a series of permit changes state regulators approved for the company's Denver-area oil refinery, as fights over the facility's emissions are heating up.
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August 15, 2024
Trump Seeks To Delay NY Sentencing Until After Election
Donald Trump asked to delay sentencing in his New York hush money case until after the 2024 presidential election, arguing he needs time to potentially appeal if he loses an attempt to erase the felony conviction on the basis of presidential immunity.
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August 15, 2024
Okla. Says 10th Circ. PBM Ruling Defies High Court Precedent
Oklahoma urged the U.S. Supreme Court to review a Tenth Circuit decision nullifying certain parts of a state law regulating pharmacy benefit managers, arguing the appeals court's ruling openly conflicts with sister circuits and previous high court rulings while pushing federal benefits law beyond its limits.
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August 15, 2024
Norfolk Southern Engineer Asks 3rd Circ. To Revive ADA Suit
A train conductor urged the Third Circuit to reinstate his disability bias suit claiming he was unlawfully disqualified from his position because of his history of seizures, saying Norfolk Southern Railway Co. and a lower court ignored evidence that he could safely perform his job.
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August 15, 2024
Mich. Top Court Won't Undo Judicial Candidate's DQ
The Michigan Supreme Court on Wednesday declined to review the disqualification of a candidate for an open judgeship on the state's intermediate court of appeals.
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August 14, 2024
3rd Circ. May Nix $10M Venezuela Award Transfer Suit
The Third Circuit appeared poised to decline jurisdiction over appeals challenging a Delaware judge's decision to send litigation enforcing some $10 million in arbitral awards against a subsidiary of Venezuela's state-owned oil company to federal court in Washington, D.C.
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August 14, 2024
Fed. Circ. Won't Rehear Utah Tribe's Water Dispute
A Federal Circuit panel refused to rehear a Utah tribe's challenge to the U.S. government that looked to overturn a Federal Claims Court ruling that held it didn't violate a 19th century law by not securing new water and infrastructure rights for the Indigenous community.
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August 14, 2024
Gilstrap Can't Keep IP Case Top Secret, Federal Circuit Told
Law professors and media groups are backing a nonprofit's legal quest at the Federal Circuit to unseal documents in a since-concluded patent lawsuit in the Eastern District of Texas, arguing that keeping patent cases secret harms the public interest.
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August 14, 2024
4th Circ. Says Credit Card 'Offset' Ban Applies To HELOCs
Creditors are prohibited from withdrawing funds from a cardholder's deposit account to cover outstanding payments on a home equity line of credit without the borrower's consent, a divided Fourth Circuit panel ruled Wednesday.
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August 14, 2024
Biz Says Mich. Cities Ignore Taxpayers In Fee-Or-Tax Fight
A pipe fitting business has urged the Michigan Supreme Court to reject municipal organizations' "histrionic" arguments that cities' financial stability will be in jeopardy if the top court finds Detroit's fire inspection fee is a disguised tax, saying the groups are disregarding citizens' rights to be free from illegal taxes.
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August 14, 2024
Recreational Pot Contract Unenforceable, Texas Court Says
A Texas state appeals court has torched a cannabis farmer's $100,000 jury win, ruling that he can not collect against his former business partner because the marijuana crop he grew was federally illegal and specifically intended for recreational use.
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August 14, 2024
Del. Justices Affirm $266M Atty Fee Award In Dell Class Suit
Delaware's Supreme Court on Wednesday backed a Chancery Court decision awarding an almost record-breaking $266.7 million fee for stockholder attorneys who settled a class action against Dell Technologies Inc. for $1 billion, saying the Chancery "did not exceed its discretion in setting the fee percentage."
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August 14, 2024
Florida AG Can't Nix Hospitals', School Boards' Opioid Claims
A Florida state appeals court on Wednesday reversed a trial court's order allowing the state's attorney general to wipe out a group of suits by hospitals and school boards in opioid litigation, holding that she doesn't have the authority to release their claims without their consent.
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August 14, 2024
6th Circ. Backs Ohio Dept. In Ex-Auditor's Disability Bias Suit
The Sixth Circuit upheld an Ohio state health department's win over a former auditor's lawsuit alleging she was fired for requesting a schedule adjustment because of her depression and anxiety, saying Wednesday that the worker refused to engage in conversations that could've identified a suitable accommodation.
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August 14, 2024
Hospital Groups Tell High Court HHS 'Stingy' In SSI Pay Row
Six of the nation's leading hospital associations told the Supreme Court on Wednesday that the U.S. Department of Health and Human Services is being "stingy" when miscalculating a formula that could cost hospitals treating low-income patients more than a billion dollars in special payments each year.
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August 14, 2024
Insurer Fights $29M Judgment Over Fatal Crash Coverage
An insurer urged a North Carolina state appeals court Wednesday to undo a nearly $29 million judgment in a lawsuit stemming from a claim for a fatal vehicle crash, citing a policy exclusion that barred coverage for injuries to fellow employees.
Expert Analysis
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A Healthier Legal Industry Starts With Emotional Intelligence
The legal profession has long been plagued by high rates of mental health issues, in part due to attorneys’ early training and broader societal stereotypes — but developing one’s emotional intelligence is one way to foster positive change, collectively and individually, says attorney Esperanza Franco.
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PTAB Rulings Shed Light On Quantum Computing Patents
Recent Patent Trial and Appeal Board decisions on enablement rejections against quantum computing patent claims provide patent practitioners with valuable guidance on best practices for avoiding and overcoming enablement, say Fred Qiu and Alex Nie at Sheppard Mullin.
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To Make Your Legal Writing Clear, Emulate A Master Chef
To deliver clear and effective written advocacy, lawyers should follow the model of a fine dining chef — seasoning a foundation of pure facts with punchy descriptors, spicing it up with analogies, refining the recipe and trimming the fat — thus catering to a sophisticated audience of decision-makers, says Reuben Guttman at Guttman Buschner.
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Circuit Judge Writes An Opinion, AI Helps: What Now?
Last week's Eleventh Circuit opinion in Snell v. United Specialty Insurance, notable for a concurrence outlining the use of artificial intelligence to evaluate a term's common meaning, is hopefully the first step toward developing a coherent basis for the judiciary's generative AI use, says David Zaslowsky at Baker McKenzie.
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Fed. Circ. Rulings Crystallize Polymorph Patent 'Obviousness'
A comparison of two recent Federal Circuit obviousness challenge decisions regarding polymorph patents provides helpful insight into the assessment of screening arguments, particularly the issue of reasonable expectation of success, say Michael Green and John Molenda at Steptoe.
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DC Circ. Ruling Heightens HHS Contract Pharmacy Challenges
The D.C. Circuit's recent ruling that the Section 340B program does not bar manufacturers from restricting deliveries of discounted drugs to contract pharmacies represents a second strike against the U.S. Department of Health and Human Services' current contract pharmacy policy and raises the stakes surrounding an upcoming Seventh Circuit ruling on the same issue, say attorneys at Foley Hoag.
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Series
In The CFPB Playbook: Regulatory Aims Get High Court Assist
Newly emboldened after the U.S. Supreme Court last month found that the Consumer Financial Protection Bureau's funding is constitutional, the bureau has likely experienced a psychic boost, allowing its already robust enforcement agenda to continue expanding, say attorneys at Husch Blackwell.
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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.