Appellate

  • March 5, 2015

    No Fix On The Horizon In Fla. If Court Nixes ACA Subsidies

    If the U.S. Supreme Court decides that the Affordable Care Act does not allow tax subsidies for those who bought health insurance on federal exchanges, Floridians could be among those hardest hit, but a fix at the state level is unlikely as Florida legislators focus instead on another ACA provision: Medicaid expansion.

  • March 5, 2015

    NJ Appeals Court Clears Applebee’s In Fajita Prayer Suit

    A New Jersey appeals court on Wednesday shot down a personal injury suit lobbed at Applebee's International Inc. by a man claiming he was burned while praying over a sizzling fajita skillet, ruling that it was an “open and obvious” danger.

  • March 5, 2015

    Pa. High Court Won't Hear Dispute Of Disgraced Atty's Award

    The Pennsylvania Supreme Court on Wednesday denied Bochetto & Lentz PC’s attempt to avoid paying a $124,000 arbitration award over referral fees due to a former associate who was dismissed for stealing money from clients, the firm and others.

  • March 5, 2015

    4th Circ. Breaks Gag Order In Massey CEO's Criminal Case

    After a monthslong tussle with the local and national media, the Fourth Circuit has lifted a gag order restricting access to participants and documents in the criminal case against former Massey Coal Co. CEO Don Blankenship, who is accused of causing 29 miner deaths by directing the company to break safety laws.

  • March 5, 2015

    Texas Court Remands $38M Jet Dispute Over Harsh Sanction

    A Texas appeals court on Wednesday reversed a $38 million judgment in a dispute over the finish-out of luxury jets, holding that a trial judge erred by imposing "death penalty sanctions" that barred defendants from presenting affirmative defenses at trial.

  • March 5, 2015

    Dollar Tree Fights Remand Of Rest Break Action At 9th Circ.

    Dollar Tree Stores Inc. urged the Ninth Circuit on Thursday to overturn a California federal judge's decision to remand to state court a rest break class action, saying the judge erred in finding the removal untimely after ambiguously defined class claims turned out to be broader than expected.

  • March 5, 2015

    Brokerage Not Covered For Online Theft, 11th Circ. Affirms

    A Georgia real estate brokerage firm isn't entitled to insurance coverage for fraudulent online bank withdrawals under a Transportation Insurance Co. policy, the Eleventh Circuit affirmed Thursday, finding that the transfers at issue don't fall within a forgery provision of the policy.

  • March 5, 2015

    11th Circ. Ruling Gives Insurers Edge In Sinkhole Disputes

    The Eleventh Circuit's recent holding that not all damage to a building constitutes "structural damage" for the purposes of a sinkhole loss claim shuts the door on coverage under homeowners policies for all but the most severe damage, according to experts.

  • March 5, 2015

    Bard Tells Fed. Circ. Not To Eye Willfulness In $1B IP Case

    C.R. Bard Inc. urged the Federal Circuit on Wednesday to reject W.L. Gore & Associates Inc.'s request that the full court reconsider the standard of review for willful infringement, saying that en banc review could not change a ruling that Gore owes Bard more than $1 billion in damages.

  • March 5, 2015

    Minn. High Court Says Power Co. Must 'Buy The Farm'

    The Minnesota Supreme Court on Wednesday said electric power supplier Great River Energy must buy hundreds of acres of land for high-voltage power lines under state law, despite only seeking a small slice for an electric transmission grid project

  • March 5, 2015

    Ex-Wife's No Show Can't Derail Alien's Removal: 7th Circ.

    The Seventh Circuit on Wednesday declined an Algerian national’s request to review a decision by the Board of Immigration Appeals that denied him a continuance in his removal proceeding to allow his ex-wife to testify on his behalf, saying no error was committed.

  • March 5, 2015

    9th Circ. Says Pier 1's Cluttered Counters OK Under ADA

    The Ninth Circuit on Thursday reversed in part a lower court's ruling in a long-running suit that obstructions in shopping aisles and on a sale counter in a Pier 1 Imports Inc. store violated the Americans with Disabilities Act, saying that cluttered sales counters aren’t barriers for customers with disabilities.

  • March 5, 2015

    NY Court Says Exxon Must Pay Tax On Spill Enviro-Monitoring

    Exxon Mobil Corp. must pay a $500,000 New York sales tax assessment on environmental monitoring and testing at several past oil-spill locations, a state appeals court ruled Thursday, rejecting ExxonMobil's arguments that those activities weren't technically part of the cleanup efforts.

  • March 5, 2015

    Texas Court Revives Developer's Suit Over Houston Flood Law

    A Texas appeals court on Thursday reversed a trial court’s decision to throw out a lawsuit against the city of Houston accusing it of crafting a flood ordinance that prevented a developer from building on its own property, finding that the city only raised “no-evidence” points in its jurisdictional plea.

  • March 5, 2015

    NY AG Says Credit Card Surcharge Ban Fights Price-Gouging

    A New York statute prohibiting merchants from tacking surcharges onto credit card transactions protects consumers from price-gouging and doesn't violate free speech principles, the state attorney general's office told the Second Circuit on Thursday, urging it to reverse a lower court's striking down the law.

  • March 5, 2015

    Endangered Species Deal Harms Property Owners, Court Told

    The National Association of Home Builders has urged the D.C. Circuit to renew its challenge to U.S. Fish and Wildlife Service settlement agreements amending the Endangered Species Act, saying the service’s failure to consider whether 251 affected species should remain on the candidate list harms property owners.

  • March 5, 2015

    Pa. Justices Deny Judge’s Challenge To Board Service Ban

    The Pennsylvania Supreme Court has rebuffed a Northampton County judge’s constitutional challenge to a new rule preventing jurists from serving on commercial boards, part of a 2014 revamp of ethical obligations for state judges.

  • March 5, 2015

    Split 6th Circ. Wipes Out Insurer's $4M ERISA Disgorgement

    The full Sixth Circuit on Thursday reversed a split panel’s earlier affirmation of a lower court's award of $3.8 million in disgorged profits given to a former executive after the Life Insurance Co. of North America was found to have wrongfully denied him disability benefits, saying the award amounted to double recovery.

  • March 5, 2015

    Doc's Right To Practice Doesn't Void Noncompete, Court Says

    A physician accused of violating a noncompete clause isn’t protected by a Tennessee Supreme Court decision that prohibits contracts that restrict doctors’ right to practice medicine, a Florida appeals court ruled Wednesday, finding that he is accused of running a rival business, not practicing medicine.

  • March 5, 2015

    Mich. Asks 6th Circ. To Revisit State Chrysler Dealerships Law

    The state of Michigan on Wednesday urged the Sixth Circuit to reconsider its decision that federal auto dealership legislation preempts a state law that would allow it to review the reinstatement of some dealerships severed by Chrysler during its bankruptcy, saying the state law doesn’t serve as an obstacle to federal law.

Expert Analysis

  • Pondering What Tibble V. Edison May Mean For ERISA Plans

    Nancy G. Ross

    Pending the U.S. Supreme Court's decision in Tibble v. Edison International, Employee Retirement Income Security Act plan sponsors and fiduciaries should make sure that each investment continues to meet the objectives of the plan’s investment policy statement, makes sense when viewed as part of the plan’s entire portfolio and remains an appropriate choice among others in its asset class, say attorneys at Mayer Brown LLP.

  • Texas Common Carriers May Soon Be Running In Circles

    Dane McKaughan

    The Beaumont Court of Appeals' standard for common carriers in Texas Rice Land Partners Ltd. v. Denbury Green Pipeline-Texas LLC devolves into a circular argument, says Dane McKaughan of Greenberg Traurig LLP.

  • A Critical Step Toward Reining In Class Standing Doctrine

    Christopher Houpt

    In NECA-IBEW v. Goldman Sachs, the Second Circuit arguably opened up a new door in class action litigation when it held that investors in one securities offering had standing to represent a putative class of investors in other offerings. But the court’s decision in Policemen’s Annuity and Benefit Fund v. The Bank of New York Mellon clarifies and narrows that ruling, say Christopher Houpt and Matthew Ingber of Mayer Brown LLP.

  • 11th Circ. Puts Spotlight On Warrantless Cellphone Search

    Matthew Adams

    Should the Eleventh Circuit affirm the earlier panel decision in U.S. v. Davis requiring a warrant for seizure of cellular tower data, the stage will be set for the matter to be reviewed by the U.S. Supreme Court, says Matthew Adams of Fox Rothschild LLP.

  • Sizing Up The Specialty Healthcare Test For Employers

    Kenneth R. Dolin

    Affirmation of the Specialty Healthcare “overwhelming-community-of-interest” test by the Fourth Circuit in Nestle Dreyer’s Ice Cream Co. v. National Labor Relations Board will almost certainly lead to a proliferation of small bargaining units across all industries, but will likely have the greatest impact on manufacturing, public utilities and retail, says Kenneth Dolin of Seyfarth Shaw LLP.

  • Rebutting The 'But This Is Asbestos' Line In Pa.

    Michael L. Haslup

    The Superior Court of Pennsylvania's recent decision in Krauss v. Trane U.S. Inc. is significant in that it reaffirms that traditional legal principles apply to asbestos cases, notwithstanding the application of a unique “frequency, regularity, proximity” standard to motions for summary judgment, say Michael Haslup and Kevin Penhallegon of Miles & Stockbridge PC.

  • Sounding The D&O Liability Alarm For Health Nonprofits

    Brian T. McGovern

    A Third Circuit opinion in the case of Lemington Home for Aged provides a cautionary tale for directors and officers of not-for-profit health care organizations that they may be held to the same standards of accountability as those of for-profit, public corporations, especially when an organization is struggling financially, say Brian McGovern and Erik Graham-Smith of Cadwalader Wickersham & Taft LLP.

  • Swipe Fee Litigation Isn’t Over Yet

    Barkley Clark

    It is premature for U.S. bank issuers to claim a complete victory in the debit card swipe fee litigation based on the U.S. Supreme Court’s recent denial of certiorari in NACS v. Board of Governors of the Federal Reserve System. The D.C. Circuit left one bone to pick with the Federal Reserve Board, say Barkley Clark of Stinson Leonard Street LLP and Barbara Clark of the Commercial Law Institute.

  • How To Bolster Your Ascertainability Challenge

    Cyrus Abbassi

    In a court willing to consider affidavits to ascertain class membership, a defendant has a greater chance of arguing that a class is not ascertainable where consumer affidavits are vulnerable to confusion or lapses in a purchaser’s memory, says Cyrus Abbassi of Burr & Forman LLP.

  • Top 10 Reasons To Have An ERISA Litigator On Speed Dial

    Nancy G. Ross

    The U.S. Supreme Court’s heightened interest in the Employee Retirement Income Security Act, an increase in investigations from the U.S. Department of Labor and the dangerous ERISA fiduciary exception to attorney-client privilege are just some of the reasons why companies should have ERISA litigators on speed dial, say Nancy Ross and Brian Netter of Mayer Brown LLP.