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October 25, 2024
5th Circ. Punts Musk Tweet Lawfulness, But Axes NLRB Order
An en banc Fifth Circuit majority on Friday overturned a National Labor Relations Board decision that a tweet Tesla CEO Elon Musk sent during a United Auto Workers unionization campaign violated federal labor law, while the court's dissenting members criticized the majority's decision as "logically incoherent."
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October 25, 2024
Entergy Struggles To Challenge FERC Decision At DC Circ.
The D.C. Circuit is set to decide whether or not utility giant Entergy will be allowed to challenge the Federal Energy Regulatory Commission's rejection of a plan that would change capacity market rules, after finding that it would give Entergy too much market power.
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October 25, 2024
NEPA Rail Ruling Backers Flood Justices With Amicus Briefs
Former federal officials, states, Colorado cities, two law schools and 30 members of Congress are all urging the U.S. Supreme Court to affirm a ruling overturning federal approval for a rail project to haul crude oil out of Utah, rather than reinvent the National Environmental Policy Act as project supporters propose.
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October 25, 2024
Va. Takes Block Of Voter Purge Program Straight To 4th Circ.
The state of Virginia lodged an immediate appeal at the Fourth Circuit on Friday after a federal judge said the state can't continue a voter removal program so close to Election Day and must re-register those already purged.
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October 25, 2024
2nd Circ. Denies BNP Quick Appeal In Sudan Refugee Suit
The Second Circuit rejected BNP Paribas SA's attempt to immediately appeal a New York federal judge's May ruling certifying a class of Sudanese refugee plaintiffs in litigation accusing the bank of funding the former Sudan government's human rights violations.
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October 25, 2024
Apple-Google Pact Plaintiff Stuck With 9th Circ. Appeal
A Ninth Circuit panel has refused to let a training school send its case accusing Google of paying Apple to refrain from developing its own search engine back to district court in light of a recent D.C. federal judge's decision that Google monopolizes the search market.
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October 25, 2024
9th Circ. Backs 7-Year Sentence Over Chip Exports To China
The Ninth Circuit on Friday upheld the seven-year prison sentence imposed on a former University of California, Los Angeles, electrical engineering professor convicted of illegally exporting high-powered semiconductor chips to China, saying the district court did not err in holding that the conduct amounted to an evasion of national security controls.
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October 25, 2024
Fla. Bar Seeks 2-Year License Suspension Against Klayman
The Florida Bar is asking the state's high court for a two-year license suspension of conservative activist attorney Larry Klayman due to alleged ethical violations in another jurisdiction, saying a more than reciprocal term of punishment is needed in the Sunshine State because Klayman continues to dispute the findings.
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October 25, 2024
DC Circ. Could Nix OK Of $8M Equatorial Guinea Award
The D.C. Circuit on Friday appeared willing to consider nixing enforcement of an $8 million arbitral award against Equatorial Guinea issued in a dispute over an ill-fated hospital operating contract, even as the panel spent much of a hearing focusing on the impact of a decade-old U.S. Supreme Court decision.
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October 25, 2024
Shoplifter's Probation Pot Ban Upheld By Mich. Appeals Court
A Michigan appeals court on Thursday ruled that, notwithstanding the state's legalization of recreational cannabis, a woman who pled guilty to shoplifting violated the terms of her probation by smoking marijuana while it remains federally illegal.
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October 25, 2024
Yale, Travelers Beat Conn. Age Bias Appeals
A Connecticut appeals court on Friday declined to revive claims that Yale University and Travelers Indemnity Co. committed age discrimination with job postings seeking "recent" college graduates, reasoning that the court that threw out the cases properly interpreted state high court precedent.
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October 25, 2024
AT&T Unit Continues To Argue FCA Does Not Apply To E-Rate
Congress could have designed the E-rate program to be distributed by the government using its own money, but it didn't, and that's why reimbursements under the program don't qualify as claims under the False Claims Act, an AT&T subsidiary has told the U.S. Supreme Court.
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October 25, 2024
'Open AI' TM Owner Asks 9th Circ. To Nix Injunction
A man accused by OpenAI of preventing the ChatGPT-maker from registering its name as a trademark urged the Ninth Circuit on Friday to vacate an injunction blocking him from using the "Open AI" mark while his case is pending, arguing he's the mark's senior holder and calling the injunction "extraordinary and unprecedented."
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October 25, 2024
VLSI Urges Fed. Circ. To Punish OpenSky After Vidal Didn't
U.S. Patent Trademark Office Director Kathi Vidal vowed to sanction OpenSky Industries "to the fullest extent of [her] power" for filing a bad faith patent challenge, but then imposed sanctions that, if anything, rewarded the misconduct, VLSI Technology has told the Federal Circuit.
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October 25, 2024
Split Mich. Panel Won't Revive Janitor's Burn Injury Suit
A divided Michigan appellate panel has declined to revive a former manufacturing plant janitor's lawsuit over a workplace explosion that left him severely injured, with the majority saying the case is time-barred by a statute of limitations clause in his employment agreement.
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October 25, 2024
Premera Rejection Seems Sparse, 9th Circ. Judges Say
A Ninth Circuit judge pressed Premera Blue Cross on Friday to defend refusing coverage for a Washington teen's lengthy mental health residential treatment, questioning if the insurer engaged in a meaningful dialogue as required with the youth's family in letters explaining why the treatment was medically unnecessary.
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October 25, 2024
Gloves Come Off In Wash. High Court Race As Election Nears
A high-powered civil litigator vying for an open seat on the Washington State Supreme Court says his municipal judge opponents' expertise is primarily relegated to traffic tickets, as that judge decries the critique as legal snobbery symptomatic of a greater disconnect in the judiciary.
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October 25, 2024
State AGs Back Mich.'s Immunity From Enbridge Pipeline Suit
Nine states and the District of Columbia have told the Sixth Circuit they back Michigan state officials' arguments of sovereign immunity from a lawsuit Enbridge Energy LP filed over the state's revocation of an easement for a segment of the company's Line 5 pipeline in the Straits of Mackinac.
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October 25, 2024
SEC's Crypto Mining Case Belongs In 10th Circ., Court Hears
A Utah man accused of defrauding crypto mining investors out of $18 million is hoping for an opportunity to have his case heard before the Tenth Circuit, arguing that the mining equipment is not a security and that the U.S. Securities and Exchange Commission should be forced to drop the suit.
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October 25, 2024
2nd Circ. Says Man Can't Challenge Removal Over Atty Failure
The Second Circuit on Friday denied a man's bid to reopen removal proceedings based on his former attorney's failure to submit important documents, saying the man should have provided evidence supporting his claim of ineffective assistance of counsel earlier.
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October 25, 2024
Off The Bench: Toss-Up For Ohtani Ball, UFC Fighters' Payday
In this week's Off The Bench, the three claimants to a historic baseball now know how much is at stake for the winner, a long fight against wage suppression for mixed martial arts fighters is a step closer to ending, and WNBA players want a bigger piece of a growing revenue pie.
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October 25, 2024
Mass. Panel Flips Teacher's Tenure Denial Over Family Leave
Massachusetts' intermediate-level appeals court on Friday invalidated an arbitrator's denial of tenure to a teacher who took maternity leave during one of her first three years of teaching, ruling that the decision had wrongly penalized her for taking the protected time away from work.
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October 25, 2024
5th Circ. Says Immigration Board Defied Haitian's Due Process
The Fifth Circuit has revived a bid by a Haitian man with a history of mental illness for removal protection, saying the Board of Immigration Appeals violated his due process rights when it ordered unnecessary fact-finding, flouting its own regulations.
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October 25, 2024
9th Circ. Dubious Of Tesla Investors' Appeal Of $12B Trial Loss
Ninth Circuit judges appeared skeptical Friday of Tesla investors' argument that an erroneous trial instruction improperly led a jury to reject their $12 billion claim over Elon Musk's 2018 tweets that he had "funding secured" to take the electric car giant private.
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October 25, 2024
High Court Bar's Future: Mitchell Law's Jonathan F. Mitchell
The pantheon of U.S. solicitors general doesn't include many lawyers who've openly challenged the U.S. Supreme Court's authority or sought to undermine its landmark precedents. But there aren't many lawyers like Jonathan F. Mitchell, a crusading conservative who rescued former President Donald Trump's reelection run — and in the process positioned himself to become the government's top oral advocate.
Expert Analysis
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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.
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Series
After Chevron: Slowing Down AI In Medical Research
The U.S. Supreme Court's recent decision overturning the Chevron doctrine may inhibit agencies' regulatory efforts, potentially slowing down the approval and implementation of artificial intelligence-driven methodologies in medical research, as well as regulators' responses to public health emergencies, say Ragini Acharya and Matthew Deutsch at Husch Blackwell.
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What High Court TM Rulings Tell Us About Free Speech
Recent U.S. Supreme Court rulings show tension between free speech and trademark law, highlighting that while political mockery is protected, established brands may be forced to adapt to evolving cultural values, says William Scott Goldman at Goldman Law Group.
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Series
Being A Luthier Makes Me A Better Lawyer
When I’m not working as an appellate lawyer, I spend my spare time building guitars — a craft known as luthiery — which has helped to enhance the discipline, patience and resilience needed to write better briefs, says Rob Carty at Nichols Brar.
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Series
After Chevron: Uncertainty In Scope Of ITC Oversight
The U.S. International Trade Commission's long-standing jurisprudence on some of the most disputed and controversial issues is likely to be reshaped by the Federal Circuit, which is no longer bound by Chevron deference in the wake of the U.S. Supreme Court’s Loper Bright decision, say Kecia Reynolds and Madeleine Moss at Paul Hastings.