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Appellate
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July 19, 2024
NFL Antitrust Verdict, WWE Chair Woes Define 2024's 1st Half
The first half of 2024 saw bombshell allegations and yearslong litigation lurching forward, highlighted by the shocking lawsuit accusing the founder of WWE of horrific sexual conduct, an iconic magazine almost shuttering and two NFL cases reaching significant milestones.
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July 19, 2024
Pa. Justices Let Enviro Groups Join Cap-And-Trade Fray
The Supreme Court of Pennsylvania was of at least four different minds Thursday when it ruled that several environmental groups could finally intervene in litigation that has blocked the state from joining a regional carbon cap-and-trade program.
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July 19, 2024
Credit Rater Presses 4th Circ. To Trash Developers' Libel Suit
Credit rating firm Dun & Bradstreet has asked the Fourth Circuit to scrap a group of apartment development companies' libel lawsuit, telling the court that nothing in a credit score was provably false.
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July 19, 2024
Bank Regulators Ask 5th Circ. To Unfreeze New Lending Rules
Federal banking regulators have urged the Fifth Circuit to rescind a Texas district court's injunction blocking implementation of new community lending rules, arguing in a filing that the district court's finding essentially rewrote the Community Reinvestment Act.
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July 19, 2024
DC Circ. Upholds EPA's Revised Biogas Accounting Rules
The D.C. Circuit on Friday backed the U.S. Environmental Protection Agency's revamp of how it accounts for renewable transportation fuel derived from biogas, rejecting a petition from an industry group that challenged the regulations as unduly burdensome and an agency overreach.
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July 19, 2024
DC Circ. Sides With FERC In Wind Farm Hookup Cost Fight
A D.C. Circuit panel on Friday backed the Federal Energy Regulatory Commission in disputes related to the transmission system upgrade costs that Tenaska Clear Creek Wind LLC faced to connect a 242-megawatt wind farm in northwest Missouri to the grid.
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July 19, 2024
Investors Want Merrill, UBS Back In $364M Libor-Rigging Suit
Investors who were allegedly harmed by the manipulation of a widely used interbank lending interest rate have appealed a final judgment that ended claims against major banks and financial services companies in protracted litigation that has garnered settlements totaling $364.5 million.
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July 19, 2024
2nd Circ. Rejects Webuild Discovery Bid In Panama Arbitration
The Second Circuit on Friday affirmed a Manhattan federal judge's order that quashed a subpoena from Italian builder Webuild SPA to engineering firm WSP USA for use in an arbitration related to an expansion of the Panama Canal.
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July 19, 2024
Law Profs Throw Flag On NFL's 'Unconscionable' Arbitration
Allowing the NFL's arbitration system, with commissioner Roger Goodell as the arbitrator, to prevail in Brian Flores' discrimination dispute with the league is "unconscionable" and "egregious," a dozen law professors have told the Second Circuit in an amicus brief supporting the former Miami Dolphins head coach.
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July 19, 2024
Calif. Justices Revive Row Over State Farm's Claims Handling
California's Supreme Court revived a policyholder's case over State Farm's claims-handling practices, reversing an appeals court decision and agreeing with the state's attorney general that California's statute of limitations on unfair competition actions, not the policy or insurance code, governed the timing of the case.
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July 19, 2024
Mich. Driver's Providers Can't Obtain PIP Benefits, Panel Says
Medical providers who treated a man injured in a car crash and were assigned his insurance rights cannot recover personal injury protection benefits from a Nationwide unit, a Michigan state appeals court ruled, citing the man's failure to secure statutorily required no-fault insurance.
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July 19, 2024
What The End Of Chevron Means For FTC Rulemaking
Federal agencies can no longer expect courts to defer to their interpretation of challenged regulatory authorities under a landmark U.S. Supreme Court ruling the Federal Trade Commission expects will have no "significant impact," but that observers say could help trip up a noncompetes ban and perhaps other efforts.
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July 19, 2024
9th Circ. Says Fueling Planes Is Arbitration-Exempt Work
The Ninth Circuit on Friday affirmed that an airplane fuel pumper can proceed with his unpaid wage claims in federal court rather than in arbitration, ruling his work is involved in the flow of interstate commerce and he is thus a transportation worker exempt from the Federal Arbitration Act.
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July 19, 2024
Signature Gatherers Must Comply With Mich. Election Law
A Michigan appellate panel said in a published opinion that petition signature gatherers must strictly comply with state election law, finding that the gatherers' failure to identify their town of residence rendered invalid every signature on petitions seeking to put a referendum question regarding a solar energy ordinance on the ballot.
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July 19, 2024
Mich. Panel OKs Nonresidents To Seek No-Fault Tort Damages
Nonresidents of Michigan or individuals whose vehicles aren't registered in Michigan can still recover tort damages for their in-state auto injuries under Michigan's no-fault insurance law, a state appeals court ruled, even if they violate a statute requiring proper no-fault insurance if they stay in Michigan for over 30 days.
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July 19, 2024
NJ Towns Not Liable For Water Contaminants, Panel Rules
A panel of New Jersey state appeals court judges ruled Friday that municipalities charging for water service aren't in an implied contractual relationship with residents and thus can't be found in breach of contract for elevated contaminant levels in the water.
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July 19, 2024
Calif. Alice Invalidations Block Koss' PTAB Appeal At Fed. Circ.
The Federal Circuit on Friday said it won't review whether the Patent Trial and Appeal Board rightfully invalidated some claims of Koss Corp.'s wireless earphone patents, as the patents were definitively invalidated in California.
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July 19, 2024
Knitting Co. Tells NC Justices Ex-CEO Can't Shirk $3M Verdict
A high-speed knitting machine manufacturer is looking to defend a $3 million trial victory against its onetime CEO who was fired for self-dealing, telling the North Carolina Supreme Court that he failed to preserve many of the arguments he now makes on appeal before the lower court.
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July 19, 2024
DC Circ. Won't Block EPA Power Plant Emissions Rule
The D.C. Circuit refused Friday to block the U.S. Environmental Protection Agency's rule curbing greenhouse gas emissions from power plants, saying challengers haven't shown they're likely to succeed in overturning the regulations.
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July 19, 2024
A Guide To The USPTO's Long List Of Requests For Comment
The U.S. Patent and Trademark Office has kept attorneys busy this year by seeking input on numerous patent issues and proposed rules. Here's a cheat sheet to the topics where feedback has been collected, from fee hikes to director reviews, and those with upcoming comment deadlines, including artificial intelligence.
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July 19, 2024
Zimbabwe Can't Dodge $50M Mining Award, DC Circ. Told
Zimbabwe can't leverage sovereign immunity to get out of paying a $50 million arbitration award over a soured joint mining venture, two Mauritian mining companies told the D.C. Circuit, saying that a trial court judge was right to permit their enforcement suit to move forward.
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July 19, 2024
NLRB Drops Challenge To Joint Employer Rule Vacatur
The National Labor Relations Board dropped its appeal of a Texas federal judge's decision vacating its rule expanding its definition of joint employer under federal labor law, saying it wants to consider its approach to the policy in light of the court's decision.
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July 19, 2024
Tweeting Holdout Ga. Juror's Removal Demands New Trial
The Georgia Court of Appeals on Thursday ordered a new trial for a man convicted of child molestation, ruling that the trial judge wrongly replaced a holdout juror even though he'd described himself on social media as "walking grounds for a mistrial."
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July 19, 2024
FTC Says Microsoft Price Hike Shows Activision Deal Harm
The Federal Trade Commission told the Ninth Circuit that Microsoft's recently announced Game Pass price increase is an example of the harm caused by the company's $68.7 billion acquisition of game developer Activision Blizzard Inc.
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July 19, 2024
NJ Justices To Review Ban On Out-Of-State Atty Referral Fees
The New Jersey Supreme Court will review an ethics advisory opinion that would ban Garden State-certified attorneys from paying referral fees to out-of-state attorneys, according to court orders filed Thursday.
Expert Analysis
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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.
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McKesson May Change How AKS-Based FCA Claims Are Pled
The Second Circuit’s analysis in U.S. v. McKesson, an Anti-Kickback Statute-based False Claims Act case, provides guidance for both relators and defendants parsing scienter-related allegations, say Li Yu at Dicello Levitt, Ellen London at London & Stout, and Erica Hitchings at Whistleblower Law.