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Appellate
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October 28, 2024
5th Circ. Balks At Ballots Received After Election Day
The Fifth Circuit has ruled against Mississippi being able to count ballots received after Election Day, but it is unlikely to have an effect on the upcoming election.
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October 28, 2024
Mass. Court's Wiretap Ruling May Be Bad Omen For Plaintiffs
A ruling by the Massachusetts high court rejecting wiretap claims over website operators' use of tracking software like Meta Pixel and Google Analytics shows the steep climb plaintiffs may continue to face as they try to apply older laws to modern technologies, experts told Law360.
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October 28, 2024
DC Circ. Told Carbon Tech Doesn't Back EPA Power Plant Rule
The U.S. Environmental Protection Agency can't show that carbon capture and sequestration technology can be used now to meet its new emissions requirements for power plants, necessitating vacatur, Republican-led states and industry challengers told the D.C. Circuit.
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October 28, 2024
9th Circ. Says Amazon Auto-Renewal Suit Is Too Late
The Ninth Circuit said Monday that a proposed class action accusing Amazon of duping Prime subscribers into paying for memberships in its audiobook seller, Audible, was filed after a three-year statute of limitations under New York law had expired.
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October 28, 2024
Hotel Guests Ask 3rd Circ. To Look At Algorithm Price-Fix Suit
Three Atlantic City guests are taking their beef with hotel-casinos to the Third Circuit after a New Jersey federal court threw out their lawsuit that accused hotel owners in the town of using an algorithm to inflate the price of rooms.
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October 28, 2024
RNC Asks High Court To Stop Pa. Provisional Ballot Rule
The Republican Party urged the U.S. Supreme Court on Monday to freeze a ruling from Pennsylvania's top court allowing voters whose mail-in ballots are rejected as defective to submit provisional ballots as replacements, claiming the late change to voting rules in a key battleground state could "taint" the 2024 election.
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October 28, 2024
New Jury Ordered In 'Cop City' Trial Over Court Closure
A defendant in the sprawling, 61-person racketeering indictment of protesters against Atlanta's controversial "Cop City" police training center will get another shot at jury selection after the Georgia Court of Appeals said Monday that a Fulton County trial judge unjustifiably closed her courtroom to the public and the press.
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October 28, 2024
5th Circ. Affirms Texas Health Coordinator Is Not Tax-Exempt
A Texas nonprofit corporation that coordinates healthcare mostly for privately insured patients does not qualify for tax-exempt status because its business fails to help the larger community, the Fifth Circuit ruled Monday in affirming a U.S. Tax Court decision.
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October 28, 2024
NJ Suspends Ex-Carter Ledyard Partner After NY Disbarment
The New Jersey Supreme Court has ordered the indefinite suspension of a former Carter Ledyard & Milburn LLP partner, two years after a New York state appeals court disbarred the lawyer for ignoring subpoenas and failing to cooperate in a fee investigation.
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October 28, 2024
Farm Co. Can't Push Worker's Wage Suit To Arbitration
A California appeals court refused to send to arbitration a farm laborer's suit accusing a farm labor contractor of shorting workers on wages, saying the company can't rely on an arbitration pact that one of its clients signed with the workers.
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October 28, 2024
Cleary Adds Northern Calif. Deputy Criminal Chief As Partner
The deputy chief of the criminal division of the U.S. Attorney's Office for the Northern District of California has joined Cleary Gottlieb Steen & Hamilton LLP's Bay Area office as a partner in the Americas litigation practice, the firm said Monday.
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October 28, 2024
Va. Asks High Court To Reinstate Voter Rolls Purge
Virginia asked the U.S. Supreme Court on Monday to pause a district court order prohibiting the state from continuing a systematic removal of suspected noncitizens from its voting rolls this close to Election Day, arguing a federal "quiet period" law only protects citizens from last-minute changes to their voting status.
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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."
Expert Analysis
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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.
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Half-Truths Vs. Omissions: Slicing Justices' Macquarie Cake
The U.S. Supreme Court's recent ruling in Macquarie v. Moab provides a road map for determining whether corporate reports that omit information should be considered misleading — and the court baked it into a dessert analogy that is key to understanding the guidelines, say Daniel Levy and Pavithra Kumar at Advanced Analytical Consulting Group.
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Lead Like 'Ted Lasso' By Embracing Cognitive Diversity
The Apple TV+ series “Ted Lasso” aptly illustrates how embracing cognitive diversity can be a winning strategy for teams, providing a useful lesson for law firms, which can benefit significantly from fresh, diverse perspectives and collaborative problem-solving, says Paul Manuele at PR Manuele Consulting.
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Chevron's End Puts Target On CFPB's Aggressive BNPL Rule
A recent interpretative rule by the Consumer Financial Protection Bureau, subjecting buy-now, pay-later loans to the same regulations as credit cards, is unlikely to survive post-Chevron challenges of the rule's partisan and shaky logic, say Scott Pearson and Bryan Schneider at Manatt.
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Justices' Ch. 11 Ruling Is A Big Moment For Debtors' Insurers
The U.S. Supreme Court’s recent Truck Insurance v. Kaiser Gypsum ruling upends decades of Chapter 11 bankruptcy jurisprudence that relegated a debtor’s insurer to the sidelines, giving insurers a new footing to try and avoid significant liability, say Stuart Gordon and Benjamin Wisher at Rivkin Radler.
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Justices' Starbucks Ruling May Limit NLRB Injunction Wins
The U.S. Supreme Court’s recent decision in Starbucks v. McKinney, adopting a more stringent test for National Labor Relations Board Section 10(j) injunctions, may lessen the frequency with which employers must defend against injunctions alongside parallel unfair labor practice charges, say David Pryzbylski and Colleen Schade at Barnes & Thornburg.
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Justices' Criminal Law Decisions: The Term In Review
Each of the 11 criminal decisions issued in the U.S. Supreme Court’s recently concluded term is independently important, but taken together, they reveal trends in the court’s broader approach to criminal law, presenting both pitfalls and opportunities for defendants and their counsel, says Kenneth Notter at MoloLamken.
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Class Actions At The Circuit Courts: July Lessons
In this month's review of class action appeals, Mitchell Engel at Shook Hardy considers cases touching on pre- and post-conviction detainment conditions, communications with class representatives, when the American Pipe tolling doctrine stops applying to modified classes, and more.
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7th Circ. Motorola Ruling Raises Stakes Of DTSA Litigation
The Seventh Circuit’s recent ruling in Motorola v. Hytera gives plaintiffs a powerful tool to recover damages, greatly increasing the incentive to bring Defend Trade Secrets Act claims against defendants with large global sales because those sales could generate large settlements, say attorneys at MoFo.
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Series
After Chevron: Bid Protest Litigation Will Hold Steady For Now
Though the substantive holding of Loper Bright is unlikely to affect bid protests because questions of statutory interpretation are rare, the spirit of the U.S. Supreme Court's decision may signal a general trend away from agency deference even on the complex technical issues that often arise, say Kayleigh Scalzo and Andrew Guy at Covington.
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Challenging Prosecutors' Use Of Defendants' Jail Phone Calls
Although it’s an uphill battle under current case law, counsel for pretrial detainees may be able to challenge prosecutors’ use of jail-recorded phone calls between the defendant and their attorney by taking certain advance measures, say Jim McLoughlin and Fielding Huseth at Moore & Van Allen.
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How NJ Worker Status Ruling Benefits Real Estate Industry
In Kennedy v. Weichert, the New Jersey Supreme Court recently said a real estate agent’s employment contract would supersede the usual ABC test analysis to determine his classification as an independent contractor, preserving operational flexibility for the industry — and potentially others, say Jason Finkelstein and Dalila Haden at Cole Schotz.
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3 Policyholder Tips After Calif. Ruling Denying D&O Coverage
A California decision from June, Practice Fusion v. Freedom Specialty Insurance, denying a company's claim seeking reimbursement under a directors and officers insurance policy for its settlement with the Justice Department, highlights the importance of coordinating coverage for all operational risks and the danger of broad exclusionary policy language, says Geoffrey Fehling at Hunton.
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Opinion
Now More Than Ever, Lawyers Must Exhibit Professionalism
As society becomes increasingly fractured and workplace incivility is on the rise, attorneys must champion professionalism and lead by example, demonstrating how lawyers can respectfully disagree without being disagreeable, says Edward Casmere at Norton Rose.