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CPSC Suit 'Makes A Mockery' Of Standing, SG Tells Justices
The federal government is urging the U.S. Supreme Court to pass on a "highly artificial suit" that seeks to unravel removal protections for commissioners on the Consumer Product Safety Commission, saying the groups behind the suit have no standing to pursue the legal challenge.
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September 03, 2024
8th Circ. Again Scraps Class Cert. For TD Ameritrade Clients
The Eighth Circuit reversed Tuesday a lower court's ruling certifying a class of TD Ameritrade clients for the second time in a lawsuit alleging the stockbroker routed orders to trading venues that didn't always provide the best execution, rejecting the named plaintiff's new class-wide damages theory based on commissions.
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September 03, 2024
Army Corps Gets 150K Comments Against Enbridge Pipeline
Environmental, health and faith groups have joined the Bad River Band of the Lake Superior Tribe of Chippewa Indians in submitting about 150,000 comments to the U.S. Army Corps of Engineers opposing Enbridge Inc.'s plans to reroute its controversial Line 5 pipeline.
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September 03, 2024
5th Circ. Panel Pushes Plaintiff Groups In Oil Terminal Row
A Fifth Circuit panel seemed wary of a claim by several groups who argued they hadn't forfeited arguments relating to vessel traffic on Texas' Gulf Coast, saying during oral arguments last week that the group's brief didn't include anything about forfeiture.
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September 03, 2024
Fed. Circ. Mulls PTAB Ruling's Effect On Liquidia Drug Launch
A Federal Circuit panel on Tuesday grappled with whether a Delaware judge was correct to hold that Liquidia Technologies could launch a hypertension drug after a United Therapeutics patent the company was found to infringe was held unpatentable by the Patent Trial and Appeal Board.
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September 03, 2024
Nigeria To Take Sovereign Immunity Ruling To US Justices
Nigeria intends to ask the U.S. Supreme Court to review a D.C. Circuit decision nixing its sovereign immunity defense in litigation to enforce a $65 million arbitral award against it, arguing that the appellate opinion extends a circuit split on treaty interpretation.
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September 03, 2024
Fed. Circ. Has Questions About Data On Solar Duty Review
The Federal Circuit struggled Tuesday morning to piece together the facts in an appeal from the U.S. Court of International Trade over anti-dumping duties on Chinese solar cells, with a judge at one point declaring that "neither side, it seems to me, has provided a coherent explanation."
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September 03, 2024
7th Circ. Upholds Arbitration In Menards Hidden Fees Suit
The Seventh Circuit on Tuesday upheld a decision to compel arbitration in a proposed class action claiming that home improvement retailer Menards used a hidden pickup service fee to manipulate its prices, saying the company provided "reasonably conspicuous" notice of its terms on the page where the lead plaintiff completed her online order.
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September 03, 2024
11th Circ. Won't Revive Fla. School's Loudspeaker Prayer Suit
The Eleventh Circuit on Tuesday affirmed a decision in favor of the Florida High School Athletic Association and its decision denying the use of a loudspeaker for prayer before sporting events, ruling that it could be regulated because it was government speech.
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September 03, 2024
Tribe Of Two Loses Fed. Circ. Appeal Over Rival's 'TT' Mark
The Federal Circuit on Tuesday rejected an appeal from a small handbag designer that claimed a potential rival wanted to register a trademark that used the letters "TT" in a similar way.
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September 03, 2024
5th Circ. Grills Feds On Congress' Intent In No Surprises Act
A Fifth Circuit panel on Tuesday challenged the federal government over its interpretation of how it applies a formula to calculate qualifying payments under a law meant to protect Americans from surprise medical bills and questioned the arbitration process over the payments that a medical association said favors insurers.
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September 03, 2024
Colo. Panel Doubts Jury Instruction Can Upend $1.8M Award
Colorado appellate judges appeared skeptical Tuesday that a state trial court was responsible for what an investor described as poor jury instructions that resulted in a nearly $1.85 million civil theft judgment, which he insisted was far too high, with one judge asking why the investor didn't sue his trial counsel over the supposed error.
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September 03, 2024
5th Circ. Hesitant To Call Tornado Cash 'Entity'
A Fifth Circuit panel prodded the U.S. Department of the Treasury's argument that Tornado Cash counts as a corporation-like organization, telling the agency that its reasoning for calling the sanctioned crypto mixer an entity was "slippery" during oral arguments Tuesday.
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September 03, 2024
Feds Ask Sixth Circ. To Uphold Highway GHG Rule
The federal government called on the Sixth Circuit to overturn a district court ruling finding the Federal Highway Administration overstepped its authority by directing states to set targets for reducing carbon dioxide emissions from federally funded highway projects, arguing the rule aligns with Congress' instructions.
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September 03, 2024
Amazon Prevails In Targeted Programming IP Fight At Fed. Circ.
A patent licensing outfit trying to assert patents related to developing "video-on-demand" programming for cable companies was told Tuesday by the Federal Circuit that they cover abstract ideas.
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September 03, 2024
Texas Justices Will Review $116M Trucking Wreck Award
Trucking company Werner Enterprises Inc. will get a chance to upend a $116 million jury verdict that found it liable for a crash that killed a 7-year-old and paralyzed a 12-year-old, after the Texas Supreme Court said it would take up the company's appeal.
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September 03, 2024
Teva Patents Don't Belong In Orange Book, Fed. Circ. Told
Amneal Pharmaceuticals Inc. is urging the Federal Circuit to preserve a lower court decision ejecting inhaler device patents from an important government database, arguing that the delisting, won in an infringement lawsuit from Teva Pharmaceuticals USA Inc., properly separated out device patents from drug patents.
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September 03, 2024
Pedestrian Hit By Off-Duty Uber Driver Can't Sue Over Injuries
A California appellate panel held Uber can't be sued for the negligence of a driver who hit a pedestrian just minutes after he switched his status to "offline," saying it was speculative to assume the driver was still on duty due to his alleged manipulation of higher "surge" fares.
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September 03, 2024
5th Circ. Won't Revive BP Spill Malpractice Settlement
The Fifth Circuit will not take another look at a proposed global settlement over accusations that attorneys botched Louisiana residents' claims following the 2010 BP Deepwater Horizon oil spill, issuing an order on Tuesday denying residents' bids for an en banc hearing to revive the settlement that a Fifth Circuit panel overturned in August.
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September 03, 2024
3rd Circ. Preview: Starbucks Firing, Liquor Law In September
Two National Labor Relations Board cases grace the Third Circuit's September session, when panels will probe the agency's suits against Starbucks Corp. for firing Philadelphia workers attempting to unionize and a plastic company accused of firing a safety whistleblower.
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September 03, 2024
Insurance Intermediary Can't Revive Biz Interference Claims
Liberty Mutual and two of its adjusters had no obligation to work with an intermediary that helps contractors secure coverage, an Ohio appeals court ruled, rejecting the intermediary's claims that Liberty and the adjusters tortiously interfered with the intermediary's business relationships by refusing to communicate with it.
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September 03, 2024
Justices Deny Oklahoma's Bid To Block HHS Funding Cut
The U.S. Supreme Court on Tuesday denied Oklahoma's request to stop the U.S. Department of Health and Human Services from cutting funding over the state's refusal to refer family planning patients for abortion after the high court's Dobbs decision last year.
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September 03, 2024
Calif. Backs EPA's High Court Fight To Keep SF Water Limits
The U.S. Environmental Protection Agency's water quality standards for San Francisco are legal and should be upheld in the face of a challenge from the city, California and various green groups told the U.S. Supreme Court on Tuesday.
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September 03, 2024
Colo. Justices To Parse Public Interest Under Anti-SLAPP Law
Colorado's high court will consider whether the state's anti-SLAPP law requires a person to actually contribute to public discourse in order for their speech to be covered by the statute, and whether their motive matters, in a case concerning negative online posts about a veterinary clinic.
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September 03, 2024
Firm Can't Enforce Unexplained Arbitration Clause In Illinois
A Missouri attorney accused of botching an injury lawsuit he helped pursue for a couple whose dry-cleaning business used allegedly toxic chemicals cannot arbitrate those allegations because he never explained the contractual arbitration provision in those clients' contract to them, an Illinois state appellate panel has found.
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September 03, 2024
No BIPA Exception For OTC Glasses, Ill. Judges Say
An Illinois appellate court has held that someone trying on nonprescription sunglasses with an online try-on tool isn't considered a patient in a healthcare setting, dooming a glasses retailer's attempt to end the biometric privacy lawsuit it faces.
Editor's Picks
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How Reshaped Circuit Courts Are Faring At The High Court
Seminal rulings from the U.S. Supreme Court's latest term will reshape many facets of American society in the coming years. Already, however, the rulings offer glimpses of how the justices view specific circuit courts, which have themselves been reshaped by an abundance of new judges.
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High Court Flexes Muscle To Limit Administrative State
The U.S. Supreme Court's dismantling of a 40-year-old judicial deference doctrine, coupled with rulings stripping federal agencies of certain enforcement powers and exposing them to additional litigation, has established the October 2023 term as likely the most consequential in administrative law history.
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Law360's Guide To Biden's Judicial Picks
UPDATED August 28, 2024 | President Joe Biden is shaping the federal judiciary by adding to the courts' professional and demographic diversity — a sharp break from former President Donald Trump, who made the judiciary more homogeneous as the judges confirmed under him were 84% white and 76% male.
Expert Analysis
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What We Know From Early Cyberinsurance Rulings
Recent cyber disruption incidents, like the Crowdstrike outage and the CDK Global cyberattack this summer, highlight the necessity of understanding legal interpretations of cyberinsurance coverage — an area in which there has been little litigation thus far, say Peter Halprin and Rebecca Schwarz at Haynes Boone.
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6th Circ. Ruling Highlights Complexity Of ERISA Preemption
The Sixth Circuit’s recent ruling in Standard Insurance v. Guy — that the defendant couldn't collect his mother’s life insurance after being convicted of murdering his parents — illustrates how courts must engage in mental gymnastics to avoid the broad reach of Employee Retirement Income Security Act preemption, says Mark DeBofsky at DeBofsky Law.
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Strategies To Defend Against Healthcare Nuclear Verdicts
The healthcare industry is increasingly the target of megaclaims, particularly those alleging medical malpractice, but attorneys representing providers can use a few tools to push back on flimsy litigation and reduce the likelihood of a nuclear verdict, says LaMar Jost at Wheeler Trigg.
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5 Tips To Succeed In A Master Of Laws Program And Beyond
As lawyers and recent law school graduates begin their Master of Laws coursework across the country, they should keep a few pointers in mind to get the most out of their programs and kick-start successful careers in their practice areas, says Kelley Miller at Reed Smith.
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Series
After Chevron: SEC Climate And ESG Rules Likely Doomed
Under the U.S. Supreme Court's recent decision in Loper Bright, without agency deference, the U.S. Securities and Exchange Commission's climate disclosure and environmental, social and governance rules would likely be found lacking in statutory support and vacated by the courts, says Justin Chretien at Carlton Fields.
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Assessing Whether Jarkesy May Limit FINRA Prosecutions
The U.S. Supreme Court’s recent decision in Jarkesy v. U.S. Securities and Exchange Commission, holding that civil securities fraud defendants are entitled to jury trials, may cause unpredictable results when applied to Financial Industry Regulatory Authority prosecutions, say Barry Temkin and Kate DiGeronimo at Mound Cotton.
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The Bank Preemption Ripple Effects After Cantero, Flagstar
The importance of federal preemption for financial institutions will only increase as technology-driven innovations evolve, which is why the U.S. Supreme Court's recent decision in Cantero v. Bank of America and vacatur of Kivett v. Flagstar Bank have real modern-day significance for national banks, say attorneys at WilmerHale.
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IP Hot Topic: The Intersection Of Trademark And Antitrust Law
Antitrust claims – like those in the U.S. Department of Justice’s recent case against Apple – are increasingly influencing trademark disputes and enforcement practices, demonstrating how antitrust law can dilute the power of a trademark, say attorneys at Dentons.
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Series
Being An Opera Singer Made Me A Better Lawyer
My journey from the stage to the courtroom has shown that the skills I honed as an opera singer – punctuality, memorization, creativity and more – have all played a vital role in my success as an attorney, says Gerard D'Emilio at GableGotwals.
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How Law Firms Can Avoid 'Collaboration Drag'
Law firm decision making can be stifled by “collaboration drag” — characterized by too many pointless meetings, too much peer feedback and too little dissent — but a few strategies can help stakeholders improve decision-making processes and build consensus, says Steve Groom at Miles Mediation.
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Election Outlook: A Precedent Primer On Content Moderation
With the 2024 election season now in full swing, online platforms will face difficult and politically sensitive decisions about content moderation, but U.S. Supreme Court decisions from last term offer much-needed certainty about their rights, say Jonathan Blavin and Helen White at Munger Tolles.
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When The Supreme Court Gives You Lemons, Make Lemonade
Instead of grousing about the U.S. Supreme Court’s recent decisions overturning long-standing precedents, attorneys should look to history for examples of how enterprising legal minds molded difficult decisions to their advantage, and figure out how to work with the cards they’ve been dealt, says Reuben Guttman at Guttman Buschner.
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Philly Project Case Renews Ongoing Fraud Theory Tug-Of-War
In its upcoming term, the U.S. Supreme Court will hear Kousisis v. U.S., a case involving wire fraud convictions related to Philadelphia bridge repair projects, and may once again further rein in prosecutorial attempts to expand theories of fraud beyond core traditional property rights, say Jonathan Halpern and Kyra Rosenzweig at Holland & Knight.
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How Anti-DEI Bill Could Affect Employers' Diversity Efforts
Sen. J.D. Vance's recently introduced Dismantle DEI Act would substantially limit employers’ ability to implement and promote workplace diversity, equity and inclusion, but there are still steps employers can take to support a diverse workforce, says Peter Ennis at Cozen O’Connor.
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Fed. Circ. Resolves Post-AIA Question On Prefiling Activity
For more than a decade, patent attorneys have worried about what the America Invents Act means for specific prefiling activities, but two recent Federal Circuit decisions suggest the enumerated prefiling activities in Section 102(a)(1) will not affect validity if done within a year of filing the application, says Howard Skaist at Berkeley Law.