Appellate

  • September 2, 2015

    Ponzi Schemer Tells 9th Circ. 18-Year Sentence Unfair

    An attorney for a Los Angeles man convicted of running a Ponzi scheme that bilked investors — including his father — out of $9 million told the Ninth Circuit on Wednesday that his 18-year sentence was unfair because he wasn’t allowed to respond to victim requests for stiff punishment.

  • September 2, 2015

    Trinity Can't Keep Guardrail Docs Sealed, Whistleblower Says

    A whistleblower urged the Fifth Circuit on Tuesday to reject Trinity Industries Inc.'s bid to reverse a district court order unsealing hundreds of documents that the company contends contain trade secrets in a $663 million False Claims Act lawsuit over dangerous guardrails, saying the company's contention is false.

  • September 2, 2015

    Supreme Court Lifts Stay On Akebia, FibroGen Patent Fight

    The Supreme Court vacated a stay Wednesday that Justice Anthony Kennedy had granted two days before at the request of FibroGen Inc. on discovery sought by Akebia Therapeutics Inc. to aid in its challenges occurring at the European and Japanese patent offices over two FibroGen anemia drug patents.

  • September 2, 2015

    Circuit Split On Removal Review Must Be Fixed, Justices Told

    A Mexican citizen asking the U.S. Supreme Court to resolve a key dispute over appellate review of cancellation of removal orders criticized the government's argument that the case is a poor vehicle for considering the issue, saying the law shouldn't be left “in a state of confusion.”

  • September 2, 2015

    Life Insurer's $13M Fraud Suit Revived By 3rd Circ.

    Lincoln Benefit Life Co. doesn't have to identify the citizenship of each member of limited liability companies it has accused of participating in a $13 million fraudulent stranger-originated life insurance scheme in order to maintain its suit in federal court, the Third Circuit ruled Wednesday, reversing a decision tossing the case.

  • September 2, 2015

    Ill. Court Axes Insurer Win In Construction Injury Spat

    An Illinois appeals court ruled Wednesday that Pekin Insurance Co. must defend Martin Cement Co. in a suit brought by a subcontractor's employee who was injured at a construction site, holding Martin may tap additional insured coverage under the subcontractor's Pekin policy and reversing a decision in the insurer's favor.

  • September 2, 2015

    Ex-Casino Guard Fights Tribe’s Fee Bid In Termination Suit

    A former security guard at a tribe’s casino in Florida and his lawyer battled the Seminole Tribe’s motion for damages, attorney’s fees and double costs, telling the Eleventh Circuit on Tuesday that they are presenting a serious question of first impression challenging the tribe’s sovereignty.

  • September 2, 2015

    Contractor Owes Tribe $7.6M For Deal Changes, Judge Says

    The Flandreau Santee Sioux Tribe is owed $7.6 million by a gaming contractor that breached its management agreement by negotiating certain amendments that improperly reduced the tribe's share of the profits, a tribal court has ruled.

  • September 2, 2015

    Narrowed Indictment Doesn't Kill Conviction, 5th Circ. Rules

    The Fifth Circuit on Tuesday refused to overturn a man’s identity-theft conviction that came down after a court removed references to Bank of America Corp. originally in the indictment, holding that while courts cannot constructively amend indictments, they are allowed to narrow the charges.

  • September 2, 2015

    3rd Circ. Backs Fair Notice To Medical Malpractice Plaintiffs

    The Third Circuit on Wednesday found that a Pennsylvania rule requiring malpractice defendants to provide fair notice to plaintiffs of their intention to dismiss a suit for failure to timely submit a required certificate of merit is substantive law and must be honored by a federal court.

  • September 2, 2015

    DOL Asks DC Circ. For Quick Approval Of Home Care Rule

    The U.S. Department of Labor on Tuesday asked the D.C. Circuit to expedite its mandate approving of the agency’s rule extending overtime and minimum-wage protections to most home-care workers, saying there’s no reason to pause implementation even in the face of a potential high-court review.

  • September 2, 2015

    Send Issues Of Atty Theft Law To NY Court, 2nd Circ. Told

    A New York attorney asked the Second Circuit on Tuesday to allow the highest state appellate court to settle two questions in his appeal asking for treble damages after a federal judge found another lawyer liable for stealing money while representing him.

  • September 2, 2015

    3rd Circ. Vacates Cert. Denial In Telemarketer Fraud Suit

    The Third Circuit on Wednesday vacated a lower court’s order denying class certification to plaintiffs who allege Zions Bancorp. was complicit in a series of schemes by telemarketers to gain access to customers’ bank accounts and charge excessive fees, saying the court held the plaintiffs to an excessively high standard of proof.

  • September 2, 2015

    2nd Circ. Wary Of Proposed 'Good Faith' Class Opt-Out Test

    A man whose honest effort not to participate in a $590 million Citigroup Inc. securities fraud class action settlement was undone by his mailing error invited the 2nd Circuit Tuesday to adopt a plaintiff-friendly “good faith” test for opt-out disputes, but the judges wrestled with how loose such a standard could be.

  • September 2, 2015

    3rd Circ. Gives Informant Another Chance To Nix Sentence

    In a case with many first impressions, the Third Circuit on Wednesday vacated a district court ruling that a government informant can’t reinstate his motion to set aside his enhanced sentence, saying he’s right that he isn’t a career offender.

  • September 2, 2015

    10th Circ. Reverses Discovery Sanctions Against Oil Co. GC

    The Tenth Circuit on Wednesday overturned sanctions against an oil and gas company’s in-house counsel for failing to turn over insurance information in response to a securities claim, finding the attorney is not responsible for his outside counsel’s negligence.

  • September 2, 2015

    $770M Trust Member Denies 'Gaming System' At 2nd Circ.

    Bedford CMBS Acquisitions LLC urged the Second Circuit on Tuesday to grant it leave to snap up 24 defaulted real estate securities with a face value of more than $200 million on the cheap, while other members of a $770 million securitization trust run by Wells Fargo Bank NA said Bedford is “gaming the system” in a complex contract dispute.

  • September 2, 2015

    Tribe Urges Justices To Reject Wis. E-Poker Challenge

    The Ho-Chunk Nation has urged the U.S. Supreme Court to reject the state of Wisconsin's bid for reconsideration of a Seventh Circuit decision allowing the tribe to offer electronic poker at its Madison casino, arguing that the appeals court correctly applied a test to determine that e-poker qualifies as Class II gaming under the Indian Gaming Regulatory Act.

  • September 2, 2015

    Industry Group Tells Texas Justices To Nix Houston Air Law

    An industrial group including ExxonMobil Corp. and the Dow Chemical Co. on Wednesday told the Texas Supreme Court during oral argument that a Houston air quality law exceeds the “vigorous but limited” role of local government in enforcing the Texas Clean Air Act.

  • September 2, 2015

    EPA Agrees To 2017 Deadline For New CERCLA Finance Rules

    The U.S. Environmental Protection Agency has agreed to finalize new financial assurance rules for hard rock mining companies involved in Superfund litigation by the end of 2017, and possibly propose similar requirements for other industries as well.

Expert Analysis

  • Flip Side Of Texas High Court's Austin V. Kroger Decision

    Karl Seelbach

    A secondary holding of the Texas Supreme Court's recent ruling in Austin v. Kroger Texas LP is that nonsubscriber employers owe a duty to provide necessary instrumentalities to their employees for the safe performance of their job duties that is independent of any duty owed under premises liability law, say Trek Doyle and Karl Seelbach of Doyle & Seelbach PLLC.

  • Don't Make Too Much Of 9th Circ.'s Mayo V. PCC Ruling

    Anna Ferrari

    Although Mayo v. PCC Structurals Inc. introduces some clarity into Ninth Circuit precedent by recognizing that employers may discipline potentially or actually disabled employees for conduct that presents a serious risk of violence, the scope of its application is narrow — where a disabled employee’s violation of a workplace conduct standard lacks the risk of violence, the obligation to attempt accommodation persists, says Anna Fer... (continued)

  • 'Anti-Concurrent Cause' Won't Work In Ariz. Fire Policies

    William A. Webster

    While anti-concurrent cause provisions are enforceable in a vast number of policies and jurisdictions, the Ninth Circuit's Stankova decision has brought the enforceability of such clauses into question for fire losses in Arizona and in states that have adopted the New York standard fire insurance policy, say William Webster and Charles Cannizzaro at Robins Kaplan LLP.

  • The Baker Botts V. Asarco Fallout Has Begun

    Jeffrey S. Sabin

    The U.S. Supreme Court decision this year in Baker Botts LLP v. Asarco LLC may pressure bankruptcy courts to respond to sophisticated attorneys' likely efforts to seek engagement letters expressly providing for costs related to defending fee applications. Indeed, there have been at least two challenges to the retention terms of creditors committee professionals within two months of the decision, says Jeffrey Sabin of Venable LLP.

  • The High Court's Key Jurisdiction Question In Manning

    Matthew Tobin

    The circuits are divided on whether federal jurisdiction can be grounded in the first instance on Section 27 of the Securities Exchange Act, which states that federal courts “shall have exclusive jurisdiction” of violations arising under the act’s regulations. The resolution of this issue by the U.S. Supreme Court in Manning v. Merrill Lynch Pierce Fenner & Smith Inc. stands to affect not just Exchange Act claims, say Matthew Tobin... (continued)

  • 7th Circ. Answers Key Admiralty Law Questions

    Eric B. Wolff

    The Seventh Circuit's recent holding that Boeing Co. could remove Asiana Airlines Inc. crash suits to federal court provides a highly readable answer key to admiralty law issues worthy of a difficult law school exam, says Eric Wolff at Perkins Coie LLP.

  • 9th Circ. Microsoft FRAND Ruling Ignores Ericsson

    J. Gregory Sidak

    Commentators have overlooked the larger implication of the recent Microsoft Corp. v. Motorola Inc. opinion — the Ninth Circuit has managed to create a circuit split with the far more experienced Federal Circuit concerning the principles for determining a reasonable and nondiscriminatory royalty articulated last year in Ericsson Inc. v. D‑Link Systems Inc., says Gregory Sidak, chairman of Criterion Economics LLC.

  • How Sequenom Lost Patent Protection For Fetal DNA Test

    David A. Gass

    In Ariosa Diagnostics Inc. v. Sequenom Inc., Federal Circuit Judge Richard Linn spoke effusively about a groundbreaking invention useful in noninvasive prenatal testing that was “deserving of patent protection.” He wrote this in an opinion concurring that the invention was ineligible for patent protection. Who is responsible for such a seemingly anomalous result? asks David Gass of Marshall Gerstein & Borun LLP.

  • 3rd Circ. Follows Suit On Paid Suspensions Under Title VII

    Brooke T. Iley

    The Third Circuit in Jones v. Southeastern Pennsylvania Transportation Authority follows the Second, Sixth and Eighth Circuits in confirming that employers can suspend an employee with pay under Title VII of the Civil Rights Act when they suspect the employee committed a violation, say Brooke Iley and Sydney Jones of Blank Rome LLP.

  • Employers May Rethink Settlement Agreements In 2nd Circ.

    Nicholas M. Reiter

    The Second Circuit's ruling in Cheeks v. Freeport Pancake House Inc. is a reminder of the willingness of federal courts to insert themselves into party settlement negotiations. Cheeks may make some employers think twice about entering into settlement agreements, particularly large employers, say Nicholas Reiter and Brian Turoff of Venable LLP.