Appellate

  • September 27, 2016

    DOJ Loss In AmEx Case Could Imperil Hospital Steering Suit

    The U.S. Department of Justice has touted the similarities between its antitrust cases against American Express and a North Carolina hospital system, but that comparison could come back to haunt it now that the Second Circuit has found that AmEx's anti-steering rules are not anti-competitive.

  • September 27, 2016

    Pa. Appeals Court Urged To Junk Risperdal Time Bar

    A group of patients urged a Pennsylvania appeals court Tuesday to reject a judge’s analysis dictating an expiration date for potentially hundreds of claims that the Johnson & Johnson antipsychotic drug Risperdal caused them and other adolescent boys to grow female breasts.

  • September 27, 2016

    9th Circ. Asks US To Weigh In On $1B Japan Nuke Suit Venue

    The Ninth Circuit has asked the U.S. State Department for its position on whether a $1 billion suit against Tokyo Electric Power Co. on behalf of 70,000 U.S. sailors allegedly exposed to radiation while responding the Fukushima nuclear disaster should remain here or be transferred to Japan.

  • September 27, 2016

    11th Circ. Says Ex-Fla. Mayor Can't Escape Fraud Conviction

    The Eleventh Circuit ruled Tuesday that former North Miami Mayor Lucie Tondreau can't escape a conviction and over-five-year prison sentence for an $8 million scheme in which she and others used a radio show to recruit straw borrowers for fraudulent mortgage loans, saying it found no error in the lower court's decision.

  • September 27, 2016

    7th Circ. Agrees First Convicted Spoofer Must Stay In Jail

    The Seventh Circuit on Monday denied bail for the first trader ever convicted of "spoofing" markets, pending his appeal of his three-year sentence for the market manipulation that involves placing dishonest orders on an exchange.

  • September 27, 2016

    Senate Dems Demand Garland Vote Before Fall Recess

    Democratic senators on Tuesday again called on their Republican counterparts to hold a confirmation hearing and vote on President Barack Obama’s U.S. Supreme Court nominee Judge Merrick B. Garland, demanding the vote take place before a pre-election recess.

  • September 27, 2016

    Fed. Circ. Told Courts Can't Invalidate Patents Under Alice

    RPost Communications Ltd. urged the Federal Circuit on Monday to reverse a district court ruling invalidating six electronic messaging patents under Alice in a win for GoDaddy.com, saying courts cannot invalidate patents for claiming patent-ineligible subject matter.

  • September 27, 2016

    Groups Blast 'Intrusive' TSA Body Scanner Rule At DC Circ.

    The Competitive Enterprise Institute and the Electronic Privacy Information Center both told the D.C. Circuit on Monday that the Transportation Security Administration's recent final rule on airport body scanners downplays the technology's intrusiveness and has actually heightened travel risks by inducing people to drive instead of fly.

  • September 27, 2016

    PTAB Appeals Face Tough Road After Latest Fed. Circ. Ruling

    By throwing out an appeal arguing that the Patent Trial and Appeal Board wrongly allowed an inter partes review of a patent, the Federal Circuit has emphasized again that it will rarely hear such appeals while opening the door to validity challenges that are barred in district court.

  • September 27, 2016

    Nationwide Asks 6th Circ. To Rethink Hacking Suit Revival

    Nationwide Mutual Insurance Co. asked the Sixth Circuit on Monday to rethink its ruling that revived a putative class action over a 2012 data breach, saying the panel majority's decision conflicts with past circuit and high court rulings.

  • September 27, 2016

    Argentina Holdouts In 2nd Circ. Target Bank Trustee Loot

    Holdout Argentina bondholders who say the country's massive settlement offer isn't good enough appeared to have an uphill fight in the Second Circuit on Tuesday, although one judge asked if it would be appropriate to allow them to take discovery in an effort to force Bank of New York Mellon to cough up $56 million plus interest.

  • September 27, 2016

    InfoSpan Asks 9th Circ. To Toss Emirati Bank's Appeal

    A U.S. financial technology company urged the Ninth Circuit on Monday not to disturb a federal judge's ruling compelling arbitration in California of a portion of its contract dispute with an Emirati bank, saying the appeal is just the bank's latest avoiding tactic.

  • September 27, 2016

    9th Circ.'s O'Scannlain To Take Senior Status, Opening Seat

    U.S. Ninth Circuit Judge Diarmuid F. O’Scannlain, considered a leading conservative voice on the federal appellate bench, will be assuming senior status effective Dec. 31, leaving an additional vacancy for an active judgeship on the court for the next president to fill.

  • September 27, 2016

    US Says CIT Was Right On Exhibition Booth Duty Exclusion

    The U.S. Department of Commerce asked the Federal Circuit on Monday to uphold a Court of International Trade ruling that Commerce was right to impose a duty on exhibition booth kits that a freight forwarding company imports, saying the product doesn’t qualify as a “kit” for the purposes of avoiding duties on extruded Chinese aluminum.

  • September 27, 2016

    RJR Asks Fla. Court To Undo $20M Award In Smoking Suit

    R.J. Reynolds Tobacco Co. asked a Florida appeals court Tuesday to undo a $20 million jury verdict for the daughter of a lifelong smoker who died of cancer, arguing the award was out of the norm for adult children and punitive damages weren't warranted.

  • September 27, 2016

    High Court Urged To Limit President's Appointment Powers

    A pair of think tanks told the U.S. Supreme Court on Monday that the Obama administration's 2011 nomination for the post of National Labor Relations Board general counsel rests on a “self-serving” interpretation of the law governing temporary appointments.

  • September 27, 2016

    2nd Circ. Tosses Appeal In Unfinished WWE Concussion Suit

    The Second Circuit on Friday denied an appeal by a former wrestler suing World Wrestling Entertainment Inc. for allegedly hiding the risks of traumatic brain injury, saying the appeal would have to wait until he and the other wrestlers suing the WWE hash out their claims in district court.

  • September 27, 2016

    Drugmakers Tell 3rd Circ. To Punt Effexor To Fed. Circ.

    Drugmakers Wyeth and Teva told the Third Circuit that purchasers’ claims of a reverse payment scheme over the generic version of the antidepressant Effexor XR belonged before the Federal Circuit, in the second case heard by the appeals court Tuesday on pay-for-delay jurisdictional issues.

  • September 27, 2016

    DC Circ. Grants Injunction In Voter ID Requirement Dispute

    The D.C. Circuit issued a split opinion Monday fleshing out an earlier decision that a U.S. elections agency must remove a proof-of-citizenship requirement from a mail-in federal voter registration form used for November’s election in Alabama, Georgia and Kansas, with voting-rights organizations calling it a “victory for our democracy.”

  • September 27, 2016

    Fla. Wrongly Denied Matching Funds, Ex-AG Candidate Says

    A former Florida House minority leader told a state appeals court Tuesday that the Division of Elections wrongly denied him campaign matching funds in a recent bid for attorney general based on its erroneous position that state law required him to correct problems with his application prior to being eliminated in a primary.

Expert Analysis

  • 7th Circ. Agrees With FTC That Size Doesn’t Matter

    John Foote

    Given how unlikely it is that any court will disagree with both the Federal Trade Commission’s position and the Seventh Circuit’s decision in Clorox, sellers are at very little risk if they discriminate between customers based on packaging that is merely larger and does not constitute any promotional message, says John Foote of Nixon Peabody LLP.

  • Tax Sales And Fraudulent Transfers: 2 Approaches

    Michael T. Benz

    With its recent ruling in Tracht Gut, the Ninth Circuit became the third federal appeals court to hold that real estate tax sales are for reasonably equivalent value and cannot be set aside as fraudulent transfers. This approach, however, is at odds with the Seventh Circuit’s approach in Smith, and raises questions about the scope of the U.S. Supreme Court’s opinion in BFP v. Resolution Trust, say Michael Benz and James Sullivan of... (continued)

  • McDonald's Class Cert. Bodes Bad News For Franchisors

    John Aaron Hughes

    In Ochoa v. McDonald's, a California federal court recently certified a class of current and former employees of a McDonald's franchisee to pursue wage, overtime and maintenance-of-uniform claims. Although that result in a vacuum would certainly be enough to cause a stir, it is the facts that the court deemed important to the certification analysis that has the industry paying particularly close attention, says John Aaron Hughes of DLA Piper.

  • The Meaning Of 'Affiliate' In Class Action Settlements

    Lewis R. Clayton

    The Second Circuit's decision last week in American International Group Securities Litigation creates a split in how courts define the term “affiliate” in class action securities settlements. Settling defendants should consider pressing for the elimination of the term completely, say attorneys with Paul Weiss Rifkind Wharton & Garrison LLP.

  • Looking Ahead: Emerging Labor And Employment Law Trends

    Joel S. Barras

    With summer 2016 well behind us, employers should begin to plan for the major labor and employment law trends expected to emerge in the final quarter of the year and into 2017. From the looming overtime regulations to equal pay legislation and class action waivers, Joel Barras and Mark Goldstein of Reed Smith LLP dissect several of the developing trends in this arena.

  • The Latest On Electronic Billboards In NJ

    Christopher John Stracco

    The Supreme Court of New Jersey recently reversed a decision prohibiting the placement of electronic billboards along Interstate 287 in Franklin Township. This ruling is contrasted with a Third Circuit decision that upheld an ordinance completely banning billboards in Mount Laurel Township, say attorneys with Day Pitney LLP.

  • Keeping The DOJ Discovery Playbook Secret

    Daniel Wenner

    Does the confidential "Federal Criminal Discovery Blue Book" help federal prosecutors ensure that the defense gets what they need to prepare their defense, or does it help those prosecutors fight against defense motions for more evidence? That’s what undoubtedly drove the National Association of Criminal Defense Lawyers to make its Freedom of Information Act request, says Daniel Wenner of Day Pitney LLP.

  • What The Fed Circ. Says About IPR Estoppel

    Mindy Sooter

    While the exact scope of the inter partes review estoppel provision has not been decided by the Federal Circuit, the issue has been raised by parties to appellate proceedings. In those cases, both the Federal Circuit and the U.S. Patent and Trademark Office have indicated that the estoppel might be narrower than many previously assumed, say Mindy Sooter and Gregory Lantier of WilmerHale.

  • 9th Circ. Limits CDA Immunity From Failure-To Warn-Cases

    Tyler Newby

    Although the Ninth Circuit's recent opinion in Beckman v. Match.com is unpublished, it creates a potentially troubling gap in the Communications Decency Act immunity protecting online services from suits based on the conduct of their users, say Tyler Newby and Hanley Chew of Fenwick & West LLP.

  • When Demand Letters Constitute Extortion In California

    Felix Shafir

    In 2006, the California Supreme Court held that a lawyer’s prelitigation communications can constitute extortion. Ever since, lower courts have wrestled with how to distinguish between extortionate threats and proper demand letters. The most important distinction is between threats of civil litigation and threats of criminal prosecution, say Felix Shafir and Jeremy Rosen of Horvitz & Levy LLP.