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Appellate
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May 20, 2024
Ex-CEO Urges NC Justices To Gut $3M Self-Dealing Verdict
The former CEO of a high-speed knitting machine manufacturer accused of self-dealing has asked North Carolina's top court to unravel a more than $3 million verdict against him, saying there wasn't sufficient evidence to support the jury's findings.
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May 20, 2024
Upscale Mass. Restaurant's COVID Loss Claims Fail In Appeal
Massachusetts restaurant chain Davio's is not entitled to coverage for what it says were property losses due to the COVID-19 pandemic, an intermediate state appellate court concluded on Monday, finding its arguments are no different from those rejected by the state's highest court two years ago in a similar case.
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May 20, 2024
Pa. Rehab Center Worker's Firing Suit Filed Too Late
A Pennsylvania appeals panel won't reinstate a wrongful termination suit by a former rehabilitation center worker who says she was wrongly fired for using medical cannabis, rejecting her argument that her claims should be subject to a six-year statute of limitations instead of two years.
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May 20, 2024
Justices Won't Wade Into Engraver's Age Bias Suit
The U.S. Supreme Court refused Monday to consider a metal engraver's claims that a silversmith fired him because he was over 40 with carpal tunnel syndrome, leaving in place a Ninth Circuit ruling that only part of his case needed to be heard by a jury.
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May 20, 2024
6th Circ. Orders Sanctioned Prison Co. To Pay NLRB Atty Fees
The Sixth Circuit said a Federal Bureau of Prisons contractor has to pay the U.S. National Labor Relations Board's attorney fees from arguing the contractor should be held in contempt in a dispute over two fired union supporters, with one judge dissenting in part over 0.4 billable hour.
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May 20, 2024
Justices Reject Hearst's 'Discovery Rule' Petition In Pics Case
The U.S. Supreme Court on Monday declined to review a Fifth Circuit decision that found Hearst Newspapers liable for infringing copyrighted photos of Ireland's "Guinness Castle," even though the suit was filed past the three-year statute of limitations.
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May 20, 2024
High Court Skips Fight Over 'Impossible' TM Name
The U.S. Supreme Court on Monday declined a cert petition from Illinois-based marketing consulting firm Impossible X LLC, which had asked the justices to review a Ninth Circuit ruling that revived a trademark complaint against it from veggie-burger maker Impossible Foods Inc.
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May 20, 2024
Justices Stay Out Of Pipeline Land Fight With FERC
The U.S. Supreme Court on Monday refused to review the D.C. Circuit decision dismissing a suit challenging the constitutionality of the Federal Energy Regulatory Commission's eminent domain authority brought by Virginia landowners along the route of the Mountain Valley pipeline.
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May 20, 2024
Justices Reject Seirus Challenge To Design Patent Test
The U.S. Supreme Court on Monday refused to review a Federal Circuit ruling that revived Columbia Sportswear's design patent suit against Seirus Innovative Accessories Inc., which Seirus said created an "illogical, unworkable test" for design patent cases.
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May 19, 2024
Solicitor General Says No High Court Case Is 'Hopeless'
Solicitor General Elizabeth Prelogar told lawyers Saturday that despite the U.S. Supreme Court's conservative majority, she has never thought a case she's overseen for the Biden administration was "entirely hopeless," and that there's always room to shape the court's opinion.
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May 17, 2024
TikTok, Feds Ask DC Circ. To Fast-Track Potential Ban Row
TikTok, a group of its creators and the U.S. Department of Justice on Friday all asked the D.C. Circuit to fast-track challenges to a new federal law that would exclude the popular app from the U.S. market unless it cuts ties with its Chinese parent company.
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May 17, 2024
Meet The Attys Fighting Efforts To Ban TikTok
Facing a potential federal ban, TikTok and creators on the platform have tapped a bevy of BigLaw heavyweights, including attorneys who have successfully led challenges to prior moves to shut down the popular social media platform and limit children's online activities, as well as a pair of litigators who've argued dozens of cases before the U.S. Supreme Court.
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May 17, 2024
Calif. OKs Rule For Judges To Work Remotely In Civil Cases
California's Judicial Council on Friday approved a new rule of court to allow judges to preside remotely under limited circumstances over civil proceedings from a location other than a courtroom.
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May 17, 2024
Utah, Farm Groups Ask To Reopen Bears Ears Monument Suit
The state of Utah and two farming associations have asked a D.C. federal court to lift a more than three-year stay in a tribal case over the Bears Ears National Monument, saying the case is now moot and another monument case is pending before the Tenth Circuit.
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May 17, 2024
$440M Cruise Line Ruling Over Cuba Dock May Be In Jeopardy
An Eleventh Circuit panel appeared reluctant Friday to affirm a nearly half-billion-dollar judgment against four major cruise lines for "trafficking" in property seized by the communist Cuban government, as the underlying concession for a port facility in Havana expired in 2004.
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May 17, 2024
Med Mal Appeal Shot Down For Being 'Replete' With Errors
The daughter of a woman who died from bowel necrosis while awaiting surgery can't get a second shot at medical malpractice claims against several healthcare providers because of "significant noncompliance" with Indiana appellate court rules, a state appeals court has ruled.
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May 17, 2024
Colo. Precedent Barred Insurer's Crash Liability Challenge
A Colorado state appeals court affirmed a lower court's finding that a Progressive unit couldn't contest liability in its policyholder's car crash case involving an uninsured driver, saying the lower court correctly applied binding Colorado Supreme Court precedent.
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May 17, 2024
DC Circ. Probes Carbon Capture In LNG Approval Challenge
The D.C. Circuit on Friday questioned the Federal Energy Regulatory Commission's decision to reapprove a Texas liquefied natural gas terminal without considering the terminal developer's proposal to add environmentally friendly modifications, amid renewed challenges to the agency's authorization of LNG facilities in the Lone Star State.
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May 17, 2024
T-Mobile Must Face Sprint Merger Suit Before Appealing
The Seventh Circuit summarily rejected T-Mobile's move for interlocutory appeal in a proposed consumer class action targeting the company's 2020 merger with Sprint, allowing the case to advance to discovery after the district court denied T-Mobile's motion to dismiss in the fall.
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May 17, 2024
3rd Circ. Won't Rethink Cancellation Of $10M Win In TM Battle
Texans can continue to be subjected to the earworm that is the "Kars 4 Kids" jingle, as the Third Circuit declined this week to reconsider its ruling against a local charity that had temporarily won a $10 million judgment in a trademark dispute over the name.
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May 17, 2024
DC Circ. Affirms Ex-HUD Official's Conviction For False Docs
The D.C. Circuit on Friday upheld the documents falsification conviction of a former high-ranking staffer within the U.S. Department of Housing and Urban Development's Office of the Inspector General, rejecting his arguments that prosecutors had diverged at trial from the charges laid out in an indictment.
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May 17, 2024
OB-GYN Enough Like GYN Oncologist For Expert Witness Law
A Florida state appeals court on Friday revived a suit accusing a gynecological oncologist of performing an unnecessary surgery, saying the credentials of the patient's medical expert — an OB-GYN — satisfied the state's "same specialty" requirement.
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May 17, 2024
Eagles Coach Didn't Fumble When He Flew Nest, Panel Says
Philadelphia Eagles Head Coach Nick Sirianni and his wife were allowed to back out of buying a $2.3 million home in New Jersey because the sellers hadn't disclosed or obtained a waiver for a "right of first refusal" from a previous owner's children, a New Jersey state appeals court affirmed Friday.
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May 17, 2024
Bettors Say 6th Circ. Erred In Ruling Over Doped Derby Horse
A group of gamblers who claim they had winning bets on the 2021 Kentucky Derby after officials stripped the lead horse of its title has petitioned the Sixth Circuit to rehear arguments after a panel of the court earlier this month affirmed the lower court's decision to toss the case.
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May 17, 2024
Inside The New Legal Push To End Calif.'s Death Penalty
In a first-of-its-kind case in the Golden State, the California Supreme Court is being asked to permanently dismantle the nation’s most populous death row on grounds that capital punishment has been administered in a racially discriminatory manner that disproportionately harms people of color.
Expert Analysis
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Series
Serving As A Sheriff's Deputy Made Me A Better Lawyer
Skills developed during my work as a reserve deputy — where there was a need to always be prepared, decisive and articulate — transferred to my practice as an intellectual property litigator, and my experience taught me that clients often appreciate and relate to the desire to participate in extracurricular activities, says Michael Friedland at Friedland Cianfrani.
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Fears About The End Of Chevron Deference Are Overblown
While some are concerned about repercussions if the U.S. Supreme Court brings an end to Chevron deference in the Loper and Relentless cases this term, agencies and attorneys would survive just fine under the doctrines that have already begun to replace it, say Daniel Wolff and Henry Leung at Crowell & Moring.
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What A Post-Chevron Landscape Could Mean For Labor Law
With the U.S. Supreme Court’s ruling on Chevron deference expected by the end of June, it’s not too soon to consider how National Labor Relations Act interpretations could be affected if federal courts no longer defer to administrative agencies’ statutory interpretation and regulatory actions, say attorneys at Morgan Lewis.
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Perspectives
Context Is Everything In Justices' Sentencing Relief Decision
In the U.S. Supreme Court’s recent Pulsifer v. U.S. decision, limiting the number of drug offenders eligible for sentencing relief, the majority and dissent adopted very different contextual frames for interpreting the meaning of “and” — with the practical impact being that thousands more defendants will be subject to severe mandatory minimums, says Douglas Berman at Moritz College of Law.
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Opinion
The SEC Is Engaging In Regulation By Destruction
The U.S. Securities and Exchange Commission's recent use of regulation by enforcement against digital assets indicates it's more interested in causing harm to crypto companies than providing guidance to the markets or protecting investors, says J.W. Verret at George Mason University.
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Former Minn. Chief Justice Instructs On Writing Better Briefs
Former Minnesota Supreme Court Chief Justice Lorie Gildea, now at Greenberg Traurig, offers strategies on writing more effective appellate briefs from her time on the bench.
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Studying NY, NJ Case Law On Employee Social Media Rights
While a New Jersey state appeals court has twice determined that an employee's termination by a private employer for social media posts is not prohibited, New York has yet to take a stand on the issue — so employers' decisions on such matters still need to be assessed on a case-by-case basis, say Julie Levinson Werner and Jessica Kriegsfeld at Lowenstein Sandler.
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A 5th Circ. Lesson On Preserving Indemnification Rights
The Fifth Circuit's recent decision in Raymond James & Associates v. Jalbert offers an important lesson for creditors and parties to indemnification agreements: If a debtor has indemnified a creditor, the creditor should consider participating in the bankruptcy case to avoid being deemed to have forfeited its indemnification rights, say Dania Slim and Alana Lyman at Pillsbury.
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ShapeShift Fine Epitomizes SEC's Crypto Policy, And Its Flaws
A recent U.S. Securities and Exchange Commission order imposing a fine on former cryptocurrency exchange ShapeShift for failing to register as a securities dealer showcases the SEC's regulation-by-enforcement approach, but the dissent by two commissioners raises valid concerns that the agency's embrace of ambiguity over clarity risks hampering the growth of the crypto economy, says Keith Blackman at Bracewell.
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2nd Circ. Adviser Liability Ruling May Shape SEC Enforcement
The Second Circuit’s recent decision in U.S. Securities and Exchange Commission v. Rashid, applying basic negligence principles to reverse a finding of investment adviser liability, provides a road map for future fraud enforcement proceedings, says Elisha Kobre at Bradley Arant.
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In Bribery Case, High Court's Past Is Probably Prologue
The U.S. Supreme Court will soon hear oral arguments in Snyder v. U.S. on the issue of whether federal law criminalizes gratuities that are not tied to an explicit quid pro quo, and precedent strongly indicates the court will limit an expansive reading of the bribery statute, say attorneys Sami Azhari and Don Davidson.
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Stay Interviews Are Key To Retaining Legal Talent
Even as the economy shifts and layoffs continue, law firms still want to retain their top attorneys, and so-called stay interviews — informal conversations with employees to identify potential issues before they lead to turnover — can be a crucial tool for improving retention and morale, say Tina Cohen Nicol and Kate Reder Sheikh at Major Lindsey.
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Direct Claims Ruling May Alter Gov't Ties To Software Firms
A recent Federal Circuit decision allowing a software developer to pursue legal action under the Contract Disputes Act could change the government's relationship with commercial software providers by permitting direct claims, even in third-party purchase situations, say Dan Ramish and Zach Prince at Haynes Boone.
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Payment Provision Lessons From NJ Construction Ruling
A New Jersey appellate court's decision in Bil-Jim v. Wyncrest, holding that an American Institute of Architects contract was not an installment contract, highlights both the complexities of statute of limitations calculations and the significant consequences that can arise from minor differences in contract language, say Mitchell Taraschi and Zac Brower at Connell Foley.
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The Fed. Circ. In February: A Reminder On Procedure Rule 28
Because the Federal Circuit does not often issue a sua sponte precedential order emphasizing an important rule of practice, it is useful to look at how the court applied the restrictions of appellate procedure Rule 28 in Promptu v. Comcast last month, and in cases that preceded it, say Jeremiah Helm and Sean Murray at Knobbe Martens.