Appellate

January 27, 2012
In-House Accounts May Stop Insider Trading, 9th Circ. Hears

A financial industry group urged the Ninth Circuit on Thursday to uphold a ruling for Morgan Stanley Smith Barney LLC letting brokerage firms require employees to keep personal trading accounts in-house, saying the policy is needed to help detect violations like insider trading.
January 27, 2012
Ex-McKesson Chair Asks High Court To Toss Guilty Verdict

Convicted securities fraudster Charles McCall, the former chairman of health care company McKesson Corp., this month asked the U.S. Supreme Court to overturn his 2009 jury verdict, claiming a lower court judge improperly instructed the jury to consider whether McCall "recklessly disregarded" warnings about accounting improprieties at the company.
January 27, 2012
Health Law Can Stand Even Without Mandate: White House

The Obama administration told the U.S. Supreme Court on Friday that the Patient Protection and Affordable Care Act could survive almost intact even if the central mandate requiring all individuals to have health insurance were deemed unconstitutional.
January 27, 2012
9th Circ. Urged To Uphold Fee Award Against Righthaven

A man who won a judgment of attorneys’ fees and costs after a judge tossed a case brought against him by copyright holding company Righthaven LLC told the Ninth Circuit on Wednesday the judgment should be upheld, arguing the district court had used its discretion properly in granting the award.
January 27, 2012
Calif. Atty Can't Dodge Memory Supplement Defamation Suit

A California appeals court ruled Thursday that a Ropers Majeski Kohn Bentley PC attorney who released a YouTube video trashing a memory supplement cannot use a state statute designed to protect against meritless and harassing litigation to dismiss a defamation case, affirming a lower court's ruling.
January 27, 2012
Trustee Seeks High Court Review Of Garment Antitrust Suit

Factory 2-U Stores Inc.'s Chapter 7 trustee asked the U.S. Supreme Court last week to revive his antitrust suit alleging a group of banks that finance transactions between garment retailers and manufacturers forced the company into bankruptcy.
January 27, 2012
First Annapolis Takes $14M S&L Merger Ruling To High Court

First Annapolis Bancorp Inc. this month asked the U.S. Supreme Court to review the Federal Circuit's decision to overturn a $13.7 million breach of contract ruling against the U.S. over broken goodwill agreements made to facilitate a bank merger during the 1980s savings and loan crisis.
January 27, 2012
Iowa Court To Weigh Workers' Privacy In Open Records Suit

The Iowa Supreme Court on Thursday agreed to consider whether a local school district erred under the state's open records act in rejecting the American Civil Liberties Union's request for specific information about disciplinary action taken against two school employees allegedly involved in an improper “locker room strip search” of five teenage girls.
January 27, 2012
Fed. Circ. Overturns $56M Light Patent Verdict Against Ford

The Federal Circuit on Friday tossed a $56 million infringement verdict against Ford Motor Co. after finding a lower court had failed to recognize the similarities between the automobile emergency light patent-in-suit and a French patent published nearly 40 years earlier.
January 27, 2012
ACC Fights Court's Narrowing Of Attorney-Client Privilege

The Association of Corporate Counsel on Wednesday challenged an Illinois appeals court judgment in a suit over the purchase of a shopping mall corporation, contending the decision undermines attorney-client privilege and will create a "mine field" of ethical conflicts in the state.
January 27, 2012
7th Circ. Affirms Bankers’ OT Class Despite Dukes

The Seventh Circuit upheld the certification of two classes of bank employees under Illinois state law in an overtime case Friday, the first time a circuit court has addressed the application of the Walmart v. Dukes commonality analysis to wage-and-hour class actions.
January 27, 2012
Countrywide Fights Lower Fraud Bar In Insurer Suits

Bank of America Corp.'s Countrywide Financial Corp. on Wednesday appealed a New York state judge's decision limiting what monoline insurers must show to put Countrywide on the hook for billions of dollars in losses from securitized mortgages they insured.
January 26, 2012
Fed. Circ. Frees DirectTV From $80M Pension Transfer Claim

The Federal Circuit affirmed a ruling Thursday that freed DirectTV from a U.S. claim that it owed $80 million from pension surpluses it kept when it sold off its government contract units and associated employee pensions to The Boeing Co. and defense contractor Raytheon Co.
January 26, 2012
Stricter Rules Prevail In Attys' Fee Awards: 4th Circ.

The Fourth Circuit said Thursday that the Equal Access to Justice Act's mandatory-fee rules take a backseat to attorneys' fee rules under other statutes, upholding a decision denying fees to a company that defeated the Equal Employment Opportunity Commission in a Title VII suit.
January 26, 2012
Group Can't Retee Enviro Claims In Parkland Suit: 6th Circ.

The Sixth Circuit on Wednesday partially upheld a lower court's ruling against Benton Harbor, Mich., residents fighting the National Park Service over the construction of a golf course on parkland, finding some of their environmental claims moot with the course already completed.
January 26, 2012
Wis. Rule Shields Ladish Board From Damages: 7th Circ.

The Seventh Circuit on Thursday refused to revive a putative shareholder class action stemming from Ladish Co. Inc.'s $778 million sale to Allegheny Technologies Inc., saying Wisconsin's business judgment rule doesn't allow an award of damages to shareholders unless they allege willful or intentional misconduct.
January 26, 2012
Shareholder Asks 2nd Circ. To Renew Accounting Fraud Suit

A Computer Associates International Inc. shareholder on Thursday pushed the Second Circuit to reopen a malpractice suit against attorneys who negotiated with the company a $130 million settlement of an accounting fraud class action, arguing he has the right to go forward with his complaint.
January 26, 2012
2nd Circ. Boots RICO Claims Against Venezuelan Officials

The Second Circuit on Wednesday affirmed a lower court decision that a Venezuelan man claiming his country's government officials had engaged in racketeering involving securities fraud had alleged extraterritorial violations beyond the reach of the Racketeer Influenced and Corrupt Organization Act.
January 26, 2012
Banks' Actions Crippled Colo. Ski Resort, NY Judge Hears

An attorney for an affiliate of The Related Cos. LP told a New York state appeals court Thursday that four European banks had crippled a massive Colorado ski resort development when they stopped doling out money they agreed to lend under a $520 million deal.
January 26, 2012
Artist Prince's Appropriation Not Fair Use, 2nd Circ. Hears

Photographer Patrick Cariou urged the Second Circuit on Wednesday to uphold a ruling that appropriation artist Richard Prince had violated his copyright, arguing fair use did not apply because Prince had used his photographs in new works without justification.

Expert Analysis

Case Study: In Re XMH Corp.

The Seventh Circuit ruling in In re XMH Corp. is consistent with several bankruptcy court opinions following the "universal rule" that a trademark license cannot be assigned without the licensor's express consent. The decision is notable, however, as it is the first published opinion on the circuit level regarding the issue, says Joseph Tiller of Jones Day.
Case Study: Wells Fargo V. Cherryland Mall

In light of the Michigan Court of Appeals ruling in Wells Fargo Bank NA v. Cherryland Mall Limited Partnership, when negotiating carve-out provisions in loan documents, be aware that single purpose entity covenants requiring solvency and adequacy of capital may in themselves trigger full recourse liability, without any accompanying outright “bad boy” acts, say attorneys with Sutherland Asbill & Brennan LLP.
Defining The Scope Of The Administrative Exemption

The California Supreme Court’s decision in Harris v. Superior Court is good news for California employers, as it essentially validates a number of previous lower federal and state court decisions that had found insurance adjusters exempt, says Lloyd Aubry of Morrison & Foerster LLP.
Speeding Up USPTO Patent Appeals

Recent changes to the rules for ex parte appeals to the Board of Patent Appeals from a final rejection of a patent application should make the appeal process quicker and easier on the owners and patent examiners, as well as focus the board’s attention on the substantive issues in the appeal, says Kenneth Horton of Kirton McConkie PC.
The Sentry That Guards Against The Tyranny Of Experts

In Samaan v. St. Joseph Hospital, the First Circuit cited Daubert in its delivery of an opinion about the duty borne by trial courts to keep out flawed analyses by credentialed experts that is as keen in its reasoning as it is sharp in its prose, says David Oliver of Vorys Sater Seymour and Pease LLP.
A Radical New View Of Restrictive Covenants In Ill.

While the Illinois Supreme Court's decision in Reliable Fire Equipment Co. v. Arredondo has radically altered the way courts in Illinois will construe restrictive covenants, it has simultaneously provided employers with more autonomy to utilize restrictive covenants and to have them enforced, says Kwabena Appenteng of Ogletree Deakins Nash Smoak & Stewart PC.
Biosimilars Law In Limbo

Although the Biologics Price Competition and Innovation Act was signed into law in 2010 as part of the Patient Protection and Affordable Care Act, biosimilars law is not a settled matter. The debate between supporters and opponents is still ongoing regarding many aspects of the PPACA, and the BPCIA could be subsumed into this political battle, says Brian Dorn of Merchant & Gould PC.
Because Jurisprudence Is (Not) Forever

The Third Circuit recently ruled en banc to approve a classwide settlement in Sullivan v. DB Investments, an antitrust case involving diamond giant De Beers. The opinion is unusual not just because it represents a break from routine, but because of how it reaches its result — it appears that the en banc opinion did not consider much of the relevant U.S. Supreme Court jurisprudence on the issues facing it, says Andrew Trask of McGuireWoods LLP.
The Nonoccurrence Of Greenhouse Gas Emissions

Emitters of greenhouse gases now more than ever need to be keenly aware of the exact terms of their insurance coverage policy, as insurers will be able to use the Virginia Supreme Court's recent decision in AES Corp. v. Steadfast Insurance Co. to argue that greenhouse gas emissions do not constitute an occurrence under a standard general liability policy, say Joseph Jean and Kimberly Diamond of Lowenstein Sandler PC.
US V. Jones: Unanimous Ruling, Disagreeing Justices

Despite the unanimous result in U.S. v. Antoine Jones, the U.S. Supreme Court justices were not in agreement on why GPS installation and tracking constitute a search under the Fourth Amendment. The respective opinions will provide plenty of fodder for discussion over the justices’ views of the Fourth Amendment in criminal cases, says Jeffrey Neuburger of Proskauer Rose LLP.