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Appellate
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May 16, 2012
2nd Circ. Says NYU Properly Denied MBA To Insider Trader
New York University's Stern School of Business acted appropriately when it declined to award a Master of Business Administration degree to a student convicted for insider trading, the Second Circuit ruled Wednesday.
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May 16, 2012
3rd Circ. Scraps 2 Schering Off-Label Marketing Actions
The Third Circuit on Wednesday refused to revive two putative class actions alleging former pharmaceutical giant Schering-Plough Corp. marketed off-label uses for certain drugs, saying the suits both failed to allege a link between the company's marketing and any actual injuries.
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May 16, 2012
Kansas' Take On Leegin Shows Risks Of Vertical Price Deals
The Kansas Supreme Court's recent decision that resale price maintenance agreements are illegal under state law highlights the need for national manufacturers to tread cautiously when setting pricing policies with their distributors and retailers, even in states that previously seemed safe for vertical agreements, experts say.
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May 15, 2012
Tishman Seeks 2nd Circ. Knockout Of 7 WTC Liability Suit
Tishman Construction Corp. on Monday urged the Second Circuit to affirm that it can't be held liable for negligence by Consolidated Edison Co. of New York Inc. and its insurers over the collapse of 7 World Trade Center following the 9/11 terrorist attacks.
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May 15, 2012
Harrisburg City Council Can't Revive Ch. 9 Bid In 3rd Circ.
The city council of Harrisburg, Pa., on Tuesday lost another round in its battle to declare bankruptcy on behalf of the state capital, as the Third Circuit denied its latest attempt to revive its original Chapter 9 filing.
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May 15, 2012
4th Circ. Won't Knock Down Real Estate Listing Antitrust Suits
Two putative class actions accusing South Carolina real estate listing services and various related brokerages of conspiring to restrain competition survived a Fourth Circuit challenge Monday when an appeals panel upheld a trial court's refusal to dismiss the suits.
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May 15, 2012
ProMedica Knew Of FTC Merger Probe, Insurer Tells 6th Circ.
A unit of OneBeacon Insurance Group Ltd. told the Sixth Circuit on Monday that it wasn't obligated to cover defense costs in antitrust litigation challenging a merger involving ProMedica Health System Inc. because ProMedica failed to report the potential claim on time.
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May 15, 2012
9th Circ. Won't Review Revival Of BofA Overdraft Suit
The Ninth Circuit on Tuesday refused to reconsider its revival of a putative class action against Bank of America NA over the alleged false advertising of its overdraft protection services.
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May 15, 2012
4th Circ. Affirms Black Lung Benefits For Coal Miner's Widow
The Fourth Circuit on Tuesday upheld the award of black lung benefits to the widow of a former Harman Mining Co. coal miner, finding that an administrative law judge was entitled to refer to the preamble of certain regulations when evaluating a medical expert's credibility.
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May 15, 2012
11th Circ. Backs Broad Fraudulent-Transfer Liability
A bankruptcy court may force a creditor to disgorge funds it received from a debtor if the funds were acquired through a fraudulent transfer, the Eleventh Circuit ruled Tuesday in a published decision that backed a broad view of liability while ruling against entities that lent money to homebuilder Tousa Inc.
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May 15, 2012
NJ Court Backs Gov't Contract Denial For Political Donor
Clarifying pay-to-play restrictions for government contractors, a New Jersey appeals court said Tuesday that an environmental consultant was correctly barred from winning a state contract because the company made a political contribution within 18 months of when bids were due.
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May 15, 2012
Ex-Deutsche Exec Pushes 2nd Circ. To Revive Bonus Suit
A former top executive with Deutsche Bank AG's Latin American group on Tuesday asked the Second Circuit to reopen his employment contract-related suit against the bank, saying it breached a deal to pay him a large bonus after he defected from a rival.
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May 15, 2012
Senate Bill Would Boost Whistleblowers' Chances In Court
The Whistleblower Protection Enhancement Act, which unanimously passed the U.S. Senate on Tuesday, greatly expands whistleblowers' chances in retaliation lawsuits by removing several barriers to claiming protected status and by eliminating exclusive appellate jurisdiction by the Federal Circuit, which has been extremely unfavorable to such cases.
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May 15, 2012
SEC, Citi Rip Rakoff In Bid To Restore $285M MBS Settlement
The U.S. Securities and Exchange Commission and Citigroup Inc. on Monday ripped U.S. District Judge Jed S. Rakoff for rejecting their $285 million mortgage-backed securities settlement, calling his decision unprecedented and unwise as the unlikely bedfellows asked the Second Circuit to restore the deal.
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May 15, 2012
5th Circ. Upholds Wastewater Cos.' Convictions In CWA Case
The Fifth Circuit on Tuesday affirmed the Clean Water Act and permit violation convictions and sentences of wastewater treatment provider Jeffrey Pruett and his two companies, ruling on a question of first impression that only ordinary negligence is required for criminal penalties tied to negligent violations of CWA permits.
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May 15, 2012
K&L Gates Malpractice Suit Over Le-Nature's Scam Revived
A Pennsylvania appeals court on Monday revived the Le-Nature's Inc. liquidating trustee's $500 million malpractice suit against law firm K&L Gates LLP for failing to uncover during its internal investigation the massive fraud that brought the company down and landed its CEO in prison.
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May 15, 2012
Steelworkers Say 6th Circ. Held Unfair Limits In ERISA Suit
A group of U.S. Steel Corp. workers asked the Sixth Circuit on Friday to revive allegations the company misrepresented its benefits plan, saying the appeals court wrongly required the employees to anticipate a statute of limitations defense barring their suit.
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May 15, 2012
3rd Circ. Says Ch. 11 Collateral Value Can't Be Hypothetical
When valuing a Chapter 11 debtor’s collateral to determine the amount of a creditor’s secured claim, a bankruptcy court should be guided by the collateral’s fair market value as opposed to hypothetical projections, the Third Circuit said Monday in a precedential decision.
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May 15, 2012
High Court Won't Review Ponzi Schemer's 50-Year Sentence
The U.S. Supreme Court on Monday denied convicted Ponzi schemer Thomas J. Petters’ request for a rehearing of his appeal after he was sentenced in April 2010 to 50 years in prison for his alleged $3.7 billion fraud.
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May 15, 2012
UnitedHealth Seeks 3rd Circ. Win Over Coverage Denials
UnitedHealth Group Inc., the nation’s second-largest health insurer, asked the Third Circuit on Friday to uphold dismissal of a proposed class action challenging the company’s refusal to reimburse care provided under employee retirement plans.
Expert Analysis
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Revitalizing A Dead Patent Family
The Federal Circuit has reversed a decision of the U.S. Patent and Trademark Office’s Board of Patent Appeals and Interferences and held that a continuing reissue application can be filed to add broadening claims after the two-year limit has lapsed. This is a potentially powerful tool for patent owners who seek to protect nonclaimed subject matter of a patent that no longer has any pending applications, says Justine Gozzi of Baker Botts LLP.
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Plea Agreements With Antitrust Division Post-VandeBrake
If it is not an abuse of discretion for a trial judge to apply whichever sentencing guideline he prefers — as in the Eighth Circuit's decision in the VandeBrake case — then it becomes much more palatable for a defendant to roll the dice at trial rather than taking his chances that a judge will impose the sentence in a plea deal, say Brady Dugan and Diana Gillis of Akin Gump Strauss Hauer & Feld LLP.
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Addressing Corporate Liability Under The TVPA, ATS
After hearing argument in two cases that have far-reaching implications for corporations doing business in politically volatile regions, the U.S. Supreme Court has determined in one case that corporations are not liable under the Torture Victim Protection Act — but it left open for exploration whether the Alien Tort Statute can or should be used as a vehicle for litigating alleged wrongdoing occurring in foreign countries, say Timothy Nelson and Jennifer Spaziano of Skadden Arps Slate Meagher & Flom LLP.
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Sackett: Implications For Pre-Enforcement Review
The U.S. Supreme Court's opinion language in Sackett v. the U.S. Environmental Protection Agency will invite future constitutional challenges to Comprehensive Environmental Response, Compensation and Liability Act §106 unilateral orders, and could set precedent for successful Administrative Procedures Act challenges to EPA orders under other environmental statutes, say John Eldridge and Megan Bibb of Haynes and Boone LLP.
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Using Federal Antitrust Law To Void Class Action Waivers
Following the Second Circuit's decision in In re American Express Merchants’ Litigation, class action arbitration waivers may be voidable if the plaintiffs can show that the enforcement of those waivers will strip them of their federal statutory rights under the Sherman Act, say Michael Christian and Demetrius Lambrinos of Zelle Hofmann Voelbel & Mason LLP.
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Limiting The Application Of The CFAA And EEA
After U.S. v. Nosal and U.S. v. Aleynikov, we can expect that prosecutors at least in the Ninth Circuit may be more conservative in their application of the Computer Fraud and Abuse Act, limiting CFAA prosecutions to hackers, and that courts in the Second Circuit and elsewhere may apply limits to the Economic Espionage Act as well, say Robyn Crowther and Benjamin Au of Caldwell Leslie & Proctor PC.
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Circuit Split? Mirant Vs. Adelphia
The Fifth Circuit decision in In re Mirant Corp. appears to be in direct conflict with Adelphia Recovery Trust v. Bank of America NA, but a closer analysis reveals that the two decisions are reconcilable. Unfortunately, the court in Mirant adopted legal conclusions without much analysis — or any mention of the analysis provided by Adelphia — making the status of this area of law unclear, says Vincent Roldan of Vandenberg & Feliu LLP.
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Brinker: How Break Policies Affect Class Certification
While most commentaries have highlighted the California Supreme Court's decision in the Brinker Restaurant Corp. case for its implications upon class action suits, there is an overlooked implication — the effect of Brinker’s written rest break policy upon the court’s decision to uphold the rest break subclass certification, says Kerri Ruzicka of Murphy Pearson Bradley & Feeney PC.
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Case Study: In Re Youman
The Federal Circuit decision in In re Youman provides some comfort to patentees seeking to file a broadened reissue where only some of the surrendered subject matter is “recaptured” and also provides useful rules for determining how much subject matter can be permissibly recaptured, says Gerald Murphy of Birch Stewart Kolasch & Birch LLP.
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Where Lies The Liability? Up To Plaintiffs To Prove
A holding by the New York Appellate Division, First Department, that breach of implied and express warranty claims against a defendant in the Reeps family's product liability lawsuit should be dismissed may be the most important in the case, because it clarifies that service providers, as opposed to product sellers, cannot be held liable under strict product liability or breach of warranty theories of liability, says William Ruskin of Epstein Becker Green PC.