Appellate

  • December 9, 2016

    Tort Claims Act Leaves Employee Intent Out: Texas High Court

    Courts evaluating whether to dismiss government employees from tort claims shouldn’t consider the subjective intent behind the employees' actions but should only weigh whether their actions were within the scope of their employment, the Texas Supreme Court held Friday.

  • December 9, 2016

    Companies Fight EPA’s Superfund Listing In DC Circ.

    Three companies petitioned the D.C. Circuit this week to review the U.S. Environmental Protection Agency’s placement of sites in Indiana and Colorado on the Superfund list of contaminated places.

  • December 9, 2016

    Mass. AG Turns To 5th Circ. To Stave Off Exxon Deposition

    Massachusetts Attorney General Maura Healey is pushing the Fifth Circuit to scrap a Texas federal judge’s plans to let Exxon Mobil Corp. examine the motives behind her investigation into the company’s past statements about climate change, urging the appeals court to act quickly to scuttle a deposition she has been ordered to give on Tuesday.

  • December 9, 2016

    Fed. Circ. Upholds PTAB Nixing Of Claims In VirnetX Patents

    A Federal Circuit panel on Friday upheld a decision that invalidated claims in an internet security patent challenged by Apple Inc., despite arguments from the patent’s owner, VirnetX Inc., that the Patent Trial and Appeal Board improperly made factual findings without supporting expert evidence.

  • December 9, 2016

    Window Maker Not Covered In Defect Suit, 7th Circ. Told

    A pair of insurers on Thursday urged the Seventh Circuit to affirm a district court's decision that they don't have to cover window maker Kolbe & Kolbe's costs to defend against a homeowner class action over defective windows, asserting that the lower court had properly applied a recent Wisconsin Supreme Court precedent.

  • December 9, 2016

    9th Circ. Says 'Uncharged' Crimes Are Wire Fraud Evidence

    The Ninth Circuit ruled on Friday that prosecutors trying a Montana oil driller for wire fraud are allowed to bring up shady transactions that aren't described in a complaint as long as those transactions are part of the larger scheme.

  • December 9, 2016

    Fed. Circ. Upholds Decision Nixing Sunroof Patent Claims

    The Federal Circuit on Friday upheld a Patent Trial and Appeal Board decision that invalidated claims in a UUSI LLC patent covering car sunroof anti-pinch technology, a patent over which German company Webasto Roof Systems Inc. had been sued by UUSI for infringing.

  • December 9, 2016

    Ore. Justices Uphold Contractor's Defect Suit Coverage Win

    The Oregon Supreme Court on Thursday affirmed that general contractor West Hills Development Co. is entitled to defense coverage under a subcontractor's insurance policy for a lawsuit over defects at a townhome development, holding that the underlying claims could be reasonably interpreted as falling within the policy's scope.

  • December 9, 2016

    Fed. Circ. Won’t Revive Dashboard Phone System IP Suits

    The Federal Circuit on Friday said it would not revive a lawsuit accusing Hyundai, Toyota, Subaru and others others of infringing a patent allowing drivers to access calls through vehicle infotainment systems, upholding a district court judge’s finding that the claims failed under Alice.

  • December 9, 2016

    FERC Ignored Pipeline's Impact On Minorities, DC Circ. Told

    The Sierra Club and other environmental groups told the D.C. Circuit on Friday that the Federal Energy Regulatory Commission didn’t properly consider the impacts of the proposed $3.5 billion Southeast Market Pipelines Project on minority and low-income communities when approving the project.

  • December 9, 2016

    Union Asks 6th Circ. To Rethink Ky. Right-To-Work Ruling

    A group of nine Kentucky unions, including chapters of the AFL-CIO, urged the Sixth Circuit Friday to reconsider its ruling upholding Hardin County, Ky.’s right-to-work ordinance, saying that federal labor law invalidates such ordinances if they are enacted by counties or local governments.

  • December 9, 2016

    Mass. Hospital Fights $4.6M Verdict Over Brain Institute

    A Massachusetts hospital on Friday asked the state’s appeals court to overturn a doctor’s $4.6 million breach of contract win stemming from a failed effort to launch a brain surgery center.

  • December 9, 2016

    9th Circ. Denies Full Rehearing In Facebook CFAA Suit

    The Ninth Circuit on Friday rejected a social media aggregation company’s request for a full rehearing on a panel’s previous decision that it had unlawfully accessed Facebook users’ accounts after being sent a cease-and-desist letter, in violation of the Computer Fraud and Abuse Act.

  • December 9, 2016

    Former CBP Officials Support Slain Mexican Teen's Family

    Two former high-level officials of U.S. Customs and Border Protection filed an amicus brief at the U.S. Supreme Court on Friday in support of the family of an unarmed Mexican teenager who was shot dead by a border patrol agent, contending that the CBP has become increasingly militarized since 2001.

  • December 9, 2016

    Man Convicted In $50M Scheme Asks 11th Circ. To Reverse

    A man convicted of leading a $50 million mortgage fraud scheme that used straw buyers to buy vacant lots in a North Carolina development asked the Eleventh Circuit on Friday for a new trial, arguing that the trial court erred in excusing him from a critical stage of the trial.

  • December 9, 2016

    9th Circ. Rules CFAA Doesn't Make Password Sharers Felons

    A split Ninth Circuit panel clarified Thursday that the Computer Fraud and Abuse Act does not make unwitting criminals of anyone who shares a password in a published opinion denying en banc rehearing to ex-Korn/Ferry International recruiter David Nosal, who was convicted of stealing trade secrets in October 2015.

  • December 9, 2016

    2nd Circ. Poised To Clear Conn. For Clean Power Contracting

    The Second Circuit looked ready Friday to let Connecticut resume taking contract bids from New England renewable power producers under a 2013 state law, after a developer with operations in New York challenging the process conceded — in an apparent blow to its argument that the law runs afoul of the dormant Commerce Clause — that the feds retain ultimate authority.

  • December 9, 2016

    Inmate's Medical Care Not Deliberately Bad, 3rd Circ. Says

    A New Jersey prison doctor saw the Third Circuit on Friday agree with a lower court’s ruling shutting down medical malpractice claims alleging he shirked his constitutional obligation of care of an inmate who had his colon and rectum removed, holding there’s no evidence of deliberate indifference to the prisoner’s medical needs.

  • December 9, 2016

    Army Corps Tells DC Circ. Dakota Access Ruling Must Stand

    The U.S. Army Corps of Engineers urged the D.C. Circuit on Thursday not to vacate a lower court decision that rejected the Standing Rock Sioux Tribe's bid to block construction on the controversial Dakota Access pipeline.

  • December 9, 2016

    Ex-Officer Urges DC Circ. To Rethink Email Speech Suit

    A District of Columbia police officer fired for sending allegedly inflammatory emails has urged the entire D.C. Circuit to reconsider a panel opinion upholding his termination, arguing that the ruling directly contradicted controlling free-speech case law.

Expert Analysis

  • The Horrible Conflict Between Biology And Women Attorneys

    Anusia Gillespie

    Women leave law firms for many of the same reasons men do, but also face challenges including headwinds with respect to assignment delegation and social outings, as well as potential disruptions if they choose to have children. Firms can increase investment in talent management and improve retention and engagement of women attorneys, says Anusia Gillespie of Banava Consulting.

  • The Future Of FLSA's Revised White Collar Exemption

    James C. Cunningham Jr.

    Last month, a Texas federal district court enjoined the U.S. Department of Labor's 2016 revisions to the Fair Labor Standards Act's white collar exemptions. The issue is unlikely to be resolved before President-elect Donald Trump takes over, so his administration will be the one to deal with this case, says James Cunningham Jr. of Berger Singerman LLP.

  • A Very Low Bar For Use Of Trademark 'In Commerce'

    Louis K. Ebling

    The Federal Circuit ruling in the recent Adidas trademark case is noteworthy not only for the Supreme Court cases it interpreted and followed, but also for the case law it chose not to rely on. The court gave short shrift to at least two cases that seemed to suggest Congress’s powers under the Commerce Clause were more limited than previously thought, say Louis Ebling and Jesse Jenike-Godshalk of Thompson Hine LLP.

  • Lawyer EQ: Finding Success In Every Interaction

    Judith Gordon

    American legal education relies almost exclusively on analytical thinking. But success in legal practice depends in large part upon an accurate emotional understanding of oneself and the human seated opposite us. Honing emotional intelligence skills can lead to greater success, and Judith Gordon of LeaderEsQ offers a few tools that can be implemented immediately to raise one’s emotional intelligence quotient.

  • FCA Seal Opinion Lacks Needed Guidance

    Lawrence S. Ebner

    The U.S. Supreme Court's unanimous decision in State Farm Fire and Casualty v. Rigsby is disappointingly narrow, leaving intact a circuit split regarding how a district court should decide whether to dismiss a qui tam suit for a seal violation, says Lawrence Ebner of Capital Appellate Advocacy PLLC.

  • Inside The 2nd Circ. Ruling In Abbott V. Adelphia

    Brendan O'Rourke

    In Abbott Laboratories v. Adelphia Supply USAl, the Second Circuit affirmed a district court’s grant of a preliminary injunction halting the alleged sale of gray-good diabetes test strips made by Abbott Laboratories. The decision is notable because the authentic test strips were identical to the gray-good versions, say attorneys with Proskauer Rose LLP.

  • Managing Intergenerational Differences Within Your Law Firm

    Najmeh Mahmoudjafari

    We are privileged to be part of an employment market that hosts employees from various generations. While “differences” may imply inherent conflict, intergenerational differences can actually be used to an advantage for organizations — especially law firms, say Najmeh Mahmoudjafari, founder of ImmigraTrust Law, and William Martucci of Shook Hardy & Bacon LLP.

  • PHH And The Future Of CFPB: 10 Questions And 9 Answers

    Joseph R. Palmore

    Following the D.C. Circuit’s recent decision in PHH v. Consumer Financial Protection Bureau and the outcome of the presidential election, many questions about how the PHH litigation may proceed and the future of the CFPB have emerged. Attorneys with Morrison & Foerster LLP share their views on a number of questions arising from this litigation.

  • Practice Arguments For Real Appeals

    Gerald Cope

    Oral argument time is short, so advocates must prepare well in order to make the most of it. Here, Gerald Cope Jr., co-chairman of of Akerman LLP's appellate practice and former chief judge of Florida's Third District Court of Appeal, shares recommendations for an effective moot court.

  • The Personal Benefit Test Post-Salman

    Daniel J. Kramer

    In its first opinion addressing the scope of insider trading liability in nearly 20 years, the U.S. Supreme Court limited its holding in Salman to gifts to friends or relatives, providing little clarity about the scope of the personal benefit requirement outside of that context, say attorneys with Paul Weiss Rifkind Wharton & Garrison LLP.