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Appellate
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October 24, 2024
Mass. Justices Reject Meta, Google 'Wiretap' Claims
Massachusetts' highest court on Thursday found that website operators' use of tracking software like Meta Pixel and Google Analytics does not violate the state's wiretap law, drawing a sharp dissent from one justice who said the legislature will now need to "correct" the court's mistake.
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October 23, 2024
Thapar Flays Law Schools, Attys For Anti-Originalist Mindsets
Despite the ascendance of conservative constitutional views, appellate attorneys are losing cases by failing to adapt, and the blame rests heavily with law schools that appear increasingly out of touch and undeserving of alumni donations, U.S. Circuit Judge Amul R. Thapar said Wednesday night in a bare-knuckle speech at a Heritage Foundation event.
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October 23, 2024
Split 9th Circ. Says Asylum 'Metering' Policy Flouts US Law
A split Ninth Circuit panel on Wednesday said federal immigration law requires U.S. officials to inspect asylum-seekers at the border, rejecting the Biden administration's argument that noncitizens must be physically standing on U.S soil to claim asylum.
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October 23, 2024
Patent Owner Fed Up With Fed. Circ's 1-Word Decisions
A patent owner has urged the U.S. Supreme Court to review the Federal Circuit's one-word decision affirming summary judgment in favor of TD Ameritrade in a high-stakes patent fight, saying the appellate court is routinely and summarily affirming orders that ignore factual disputes in patent cases, without explanation.
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October 23, 2024
EPA's GHG Power Plant Rule Is Achievable, Scientists Say
A half-dozen prominent scientists and engineers have told the D.C. Circuit that the U.S. Environmental Protection Agency's plan to tap carbon capture and sequestration technology to reduce power plants' greenhouse gas pollution is on point and readily achievable.
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October 23, 2024
Mich. Panel Reverses Insurer's $1.2M Fire Subrogation Win
A Michigan state appeals court rejected a property insurer's subrogation bid against commercial tenants over a roughly $1.2 million building fire, finding that while the tenants' lease generally required them to keep their property in good condition, there was no specific provision holding them liable for their own negligence.
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October 23, 2024
Fed. Circ. Backs Customs Duties On Importer's Steel Tubing
An importer couldn't convince the Federal Circuit that steel tubing that includes insulating materials could be imported as duty-free insulating conduits, with the panel saying Wednesday the materials aren't enough for the product to be insulating.
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October 23, 2024
Judges Hint Settlement May Have Waived Atty's Free Speech
Attorney Timothy Brignole and his Hartford law firm, Brignole Bush & Lewis LLC, may have surrendered free speech rights when they signed a nondisparagement agreement with a former employee, stripping them of the ability to claim First Amendment protection over comments attributed to them in a lawsuit, judges of the Connecticut Appellate Court hinted Wednesday.
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October 23, 2024
No More Coverage For Paper Co.'s Pollution Claim, Panel Says
A WestRock Co. subsidiary that owned a Montana paper mill later identified as a Superfund site isn't entitled to additional coverage from its AIG insurer, an Illinois state appeals court ruled, saying two pollution conditions on the property were related and subject to a single $5 million limit of liability.
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October 23, 2024
Late Smoker's Spouse Can Argue Survivor's Benefits At Retrial
The husband of a deceased smoker whose $157 million win against tobacco companies was erased can claim surviving spouse damages under Florida's Wrongful Death Act on retrial even though he was not married to his partner at the time he was diagnosed with lung disease, according to an opinion released Wednesday by a Florida appeals court.
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October 23, 2024
No Xenophobia Taint In Fired Prof's Jury Trial, Panel Says
An Ohio state appellate court has upheld a jury's finding that a Cincinnati medical center did not violate employment law when it fired a tenured associate professor, rejecting the professor's argument that the medical center attempted to stoke "xenophobic bias" in the jury by mentioning his Chinese heritage during trial.
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October 23, 2024
3 Things To Know About Proposed OTC Contraception Regs
The Biden administration's proposal to require private health insurers to pick up the cost of over-the-counter contraception could increase access for an estimated 52 million women. Here are three things to know about the newly proposed regulations.
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October 23, 2024
Full 9th Circ. Passes On SF Nurses' Salary Basis Case
The full Ninth Circuit said Wednesday it won't reconsider a panel's ruling that it wasn't clear whether a group of San Francisco city nurses in two consolidated cases were paid on a salary basis and could therefore be considered overtime-exempt.
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October 23, 2024
1st Circ. Sets Oral Arguments In Boies' Cannabis Suit For Dec. 5
The First Circuit has scheduled oral arguments in an appeal by a group of cannabis businesses, represented by litigator David Boies, challenging the federal prohibition on marijuana.
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October 23, 2024
Del. Justices Urged To Revive Oracle-NetSuite Deal Challenge
An attorney for Oracle Corp. stockholders rattled off a barrage of alleged disclosure failures, analytical flaws and errant deference decisions Wednesday during a Delaware Supreme Court appeal from the Chancery Court's toss last year of a challenge to the company's $9.3 billion acquisition of NetSuite Corp. in 2016.
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October 23, 2024
9th Circ. Judge Suggests Equity Pact Counts As Wash. Loan
A Ninth Circuit judge said Wednesday he was "struggling with" a company's stance that its equity-sharing agreement with two homeowners in Washington state doesn't amount to a loan covered by state laws regulating reverse mortgages, saying the arrangement appears to check the boxes of the statutory definition.
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October 23, 2024
Amazon Must Face Drivers' Tip Suit Despite FTC Settlement
A Washington federal judge largely refused Wednesday to toss a proposed class action accusing Amazon of violating Evergreen State laws by withholding portions of drivers' tips, saying the claims are still valid despite the Federal Trade Commission reaching a nearly $62 million deal with the company over the same alleged conduct.
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October 23, 2024
Telecom Group Sues To Cancel FTC's 'Click To Cancel' Rule
A major cable and internet industry group and others sued the Federal Trade Commission Wednesday over its new "click to cancel" rule, asking the Fifth Circuit to vacate the regulation one week after it was adopted in a 3-2 commission vote.
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October 23, 2024
Colo. Justices Leery of Tossing Fraudster's Sentence
Colorado Supreme Court justices appeared doubtful Wednesday that a convicted fraudster could avoid his sentence of 20 years probation after he served four years in prison, suggesting that while there was practically little difference from a previous sentence they threw out, it no longer violated state law.
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October 23, 2024
Religion Law Can't Save Sacred Worship Site, High Court Told
A law designed to protect religious freedom can't help an Apache nonprofit's bid to save a sacred worship site in Arizona from destruction, the federal government said, arguing that the tribe is asking the U.S. Supreme Court to nullify a congressional statute crafted to allow federal third-party land transfers.
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October 23, 2024
Navarro Seeks Justices' Review Of Presidential Records Ruling
Former Trump administration adviser Peter Navarro has asked the U.S. Supreme Court to review a circuit court's ruling that the federal government can use the Presidential Records Act to force Navarro to hand over emails from his tenure at the White House.
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October 23, 2024
NC Justices Scrutinize Scope Of Liability Shield In COVID Law
An attorney for a doctor accused of medical malpractice faced sharp questioning Wednesday as North Carolina justices pushed him to define how much protection from liability was granted by an emergency law enacted to safeguard the state's healthcare providers during the COVID-19 pandemic.
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October 23, 2024
High Court Won't Pause Google's Subpoena Of State Agency
The U.S. Supreme Court refused Wednesday to block Google's request for documents in a case accusing the tech giant of monopolizing key digital ad technology as a South Carolina agency challenges an order forcing it to comply with the subpoena.
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October 23, 2024
Insurers Slam Mich. No-Fault Ruling As 'Judicial Activism'
A trade group representing Michigan insurers said an appellate court ruling in a medical provider's suit over nonpayment of auto insurance benefits could encourage gamesmanship in no-fault insurance litigation, in a friend-of-the-court brief filed on Tuesday with the state's top court.
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October 23, 2024
Legal Doctrine Can't Revive Med Mal Case, Ga. Panel Says
The Georgia Court of Appeals has affirmed the dismissal of a suit alleging a doctor's failure to discontinue a cancer patient's steroid prescription caused him to suffer ailments related to long-term steroid use, saying the time-barred suit can't be saved by the so-called continuous treatment doctrine.
Expert Analysis
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Unpacking Jurisdiction Issues In 3rd Circ. Arbitration Ruling
The Third Circuit's recent ruling in George v. Rushmore Service Center could be interpreted to establish three principles regarding district courts' jurisdiction to enter arbitration-related orders under the Federal Arbitration Act, two of which may lead to confusion, says David Cinotti at Pashman Stein.
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Why Attorneys Should Consider Community Leadership Roles
Volunteering and nonprofit board service are complementary to, but distinct from, traditional pro bono work, and taking on these community leadership roles can produce dividends for lawyers, their firms and the nonprofit causes they support, says Katie Beacham at Kilpatrick.
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How NJ Temp Equal Pay Survived A Constitutional Challenge
The Third Circuit recently gave the New Jersey Temporary Workers' Bill of Rights a new lease on life by systematically dismantling multiple theories of the act's unconstitutionality brought by staffing agencies hoping to delay their new equal pay and benefits obligations, say attorneys at Duane Morris.
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Firms Must Offer A Trifecta Of Services In Post-Chevron World
After the U.S. Supreme Court’s Loper Bright Enterprises v. Raimondo decision overturning Chevron deference, law firms will need to integrate litigation, lobbying and communications functions to keep up with the ramifications of the ruling and provide adequate counsel quickly, says Neil Hare at Dentons.
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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.