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Appellate
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May 20, 2013
'Girls Gone Wild' Exec Dodges $3M Judgment In 3rd Circ.
A Third Circuit panel on Monday freed “Girls Gone Wild” video series founder Joe Francis from a $3 million judgment awarded to a woman who claimed he wrongly linked her identity to a high-profile sex scandal, finding that there wasn't enough evidence to show that Francis made the video or that the New Jersey federal court had authority to hear the case.
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May 20, 2013
High Court May Use SOX Case To Put DOL In Its Place
The U.S. Supreme Court agreed Monday to hear its first-ever Sarbanes-Oxley Act whistleblower case, in which it might not only decide whether SOX's anti-retaliation provision covers employees at private contractors of public companies, but also clarify how much deference courts should afford agencies like the U.S. Department of Labor when it comes to interpreting the law, attorneys say.
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May 20, 2013
Fighting Agencies May Be Tougher After High Court Ruling
The U.S. Supreme Court's Monday ruling in favor of the Federal Communications Commission, which held that courts should apply a deferential standard of review when federal agencies interpret the limits of their own authority, may make it tougher for regulated businesses to fight agency actions, attorneys say.
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May 20, 2013
9th Circ. Won't Rehear Casino Ruling But Issues New Opinion
The Ninth Circuit on Monday refused to rehear a dispute over an Indian tribe's controversial plan to build a $600 million Las Vegas-style casino in Glendale, Ariz., but withdrew its earlier opinion on the matter and replaced it with a decision remanding the issue to the U.S. secretary of the interior.
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May 20, 2013
High Court's Atty Fee Ruling May Spur More Vaccine Claims
The U.S. Supreme Court ruled Monday that attorneys can still recover fees and costs for vaccine injury claims that a government compensation program determines to be time-barred, a decision that will make lawyers more likely to take calculated gambles on cases with timeliness concerns.
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May 20, 2013
Plan B Ruling Shouldn't Be Stayed, 2nd Circ. Told
Reproductive health advocates on Monday urged the Second Circuit not to delay a court order that Plan B and other emergency birth control pills be made available over the counter without age restrictions, saying a New York federal judge acted reasonably to address political obstructionism.
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May 20, 2013
11th Circ. Slashes Fla. Firm's Award In Condo Coverage Row
The Eleventh Circuit on Monday slashed a $3 million contingency fee awarded to Florida law firm Rosenbaum Mollengarden PLLC, whose equity partner was associated with two previous law firms throughout his representation of a Miami condominium association in an underlying insurance dispute.
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May 20, 2013
Sprint Asks High Court To Back Arbitration Bid In Fee Suit
A Sprint Nextel Corp. unit has asked the U.S. Supreme Court to determine if a California appeals court skirted its 2011 AT&T Mobility LLC v. Concepcion decision by rejecting Sprint's bid to compel arbitration in a class action over early termination fees.
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May 20, 2013
Exxon Can't Nix Ex-VP's $5M In Stock, Texas Justices Told
A former Exxon Mobil Corp. vice president on Friday told Texas’ highest court that compensation agreements he inked with the oil and gas giant allowing it to cancel $5 million in stock incentives he held after he went to work for a rival are unenforceable.
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May 20, 2013
ABA Asks Fed. Circ. To Change Claim Construction Standard
The American Bar Association on Monday urged the Federal Circuit to overturn its controversial position that claims construction rulings must be reviewed anew on appeal, arguing that patent litigation would be more efficient and predictable if district courts' factual findings were given greater deference.
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May 20, 2013
Full 2nd Circ. Pressed To Rethink Condo-As-Lot Decision
The owner of the Residence at The Ritz-Carlton Westchester filed a motion for en banc rehearing with the Second Circuit on Monday, in a dispute with prospective residents over whether a single-floor condominium in a multistory building is subject to disclosure and reporting requirements.
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May 20, 2013
Buffalo Firefighters Push 2nd Circ. To Reopen Race Bias Suit
A group of black firefighters from Buffalo, N.Y., asked the Second Circuit Monday to reopen a lawsuit claiming racial bias, arguing that black firefighters bore the brunt of drug-use-related firings.
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May 20, 2013
Fed. Circ. Revives 5 Mylan Drug Patents In Sunovion Row
The Federal Circuit on Monday threw out a ruling that five Mylan Inc. patents covering treatments for chronic pulmonary obstructive disease were invalid, reviving claims that Sunovion Pharmaceuticals Inc.'s drug Brovana infringed the patents.
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May 20, 2013
Ex-Morgan Stanley Exec Fights Kickback Rap In 2nd Circ.
A former Morgan Stanley & Co. executive asked the Second Circuit on Monday to overturn a conviction on charges he steered stock-loan business to his family in exchange for kickbacks, arguing that some work was performed for the money.
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May 20, 2013
Ex-Bose McKinney Partner Suspended For Harassing Intern
A former Bose McKinney & Evans LLP partner who spread a horror-film clip showcasing a female intern who appeared to be topless in the movie has been suspended from practice for three years, after the Indiana Supreme Court ruled Friday that he hadn't shown sufficient remorse.
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May 20, 2013
Fed. Circ. Nixes Anti-Dumping Duty Rate On Chinese Ribbon
The Federal Circuit on Monday vacated anti-dumping duties imposed by the U.S. Department of Commerce on Chinese ribbon imported by Yangzhou Bestpak Gifts & Crafts Co. Ltd., ruling that the agency's calculation was insufficiently supported by evidence.
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May 20, 2013
Pa. Court Rejects Attys' Fee Test In Trade Secrets Cases
A Pennsylvania appeals court on Friday rejected a widely applied test used by federal courts to determine, for the purposes of awarding attorneys' fees, whether claims were brought in bad faith under the Pennsylvania Uniform Trade Secrets Act.
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May 20, 2013
Fed. Circ. Flips Noninfringement Judgment In Allegra IP Row
Aventis Pharmaceuticals Inc. and Albany Molecular Research Inc. on Monday convinced the Federal Circuit to reverse a noninfringement judgment over an Albany Molecular patent covering processes used to make a purer form of a key ingredient in allergy medication, including Sanofi-Aventis U.S.'s Allegra.
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May 20, 2013
DC Circ. Revives Race Discrimination Claim Against HHS
The D.C. Circuit on Friday partially revived a suit accusing the U.S. Department of Health and Human Services of racially discriminating against an African-American employee, ruling her claim that she was denied a promotion because of her race must be decided by a jury.
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May 20, 2013
Agencies Deserve Deference On Jurisdiction, Justices Say
The U.S. Supreme Court ruled Monday that courts should apply a deferential standard of review toward a federal agency's definition of its own jurisdiction, siding with the Federal Communications Commission in a fight with local government agencies over zoning rules for wireless facilities.
Expert Analysis
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E-Commerce Taxation Bill Might Be Unconstitutional
Recent decisions from the federal courts suggest that the constitutionality of the proposed Marketplace Fairness Act, which would permit states to require out-of-state businesses to collect and remit sales taxes on goods sold over the Internet, is open to serious debate, says Michael Abate of Dinsmore & Shohl LLP.
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Jurisdiction Clarification For Pa. Gov't Contract Disputes
After a recent Pennsylvania Supreme Court decision, it is without question that an agency’s decision to reject all bids or cancel a solicitation is not subject to legal challenge — in any forum. Bidders who have submitted proposals to a commonwealth agency, only to have the agency withdraw the solicitation, simply have no recourse, say attorneys with Pepper Hamilton LLP.
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Condemn Now, CEQA-Compliance Later? Maybe
Must a public project receive environmental clearance before an agency may begin acquiring property for it? In Golden Gate Land Holdings LLC v. East Bay Regional Park District, the California Court of Appeal answered no, permitting an agency to file an eminent domain action prior to complying with the California Environmental Quality Act, but the holding appears limited, say attorneys with Nossaman LLP.
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Parsing The 4th Circ. Stance In Campbell V. Hanover
Almost 50 years after its Decker decision, the Fourth Circuit in Campbell v. Hanover Insurance Co. — In re ESA Environmental Specialists Inc. — has reaffirmed the vitality of the earmarking defense. The decision also allowed the Fourth Circuit to shed light on the contemporaneous exchange for new value defense, say Jason Harbour and Tara Elgie of Hunton & Williams LLP.
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US Airways V. McCutchen Spurs Revision Of ERISA Plans
The U.S. Supreme Court's recent decision in U.S. Airways v. McCutchen should guide the drafting and revising of Employee Retirement Income Security Act plans. Certainly, a plan should protect itself by granting itself reimbursement rights in the beneficiary’s full recovery against a third party, say attorneys with Edwards Wildman Palmer LLP.
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Genesis V. Symczyk: A Win For Employers In The End
Even though the U.S. Supreme Court evaded resolving a particular circuit split in Genesis Healthcare Corp. v. Symczyk, the court did resolve another issue that should provide employers confidence in the proper disposition of Fair Labor Standards Act collective actions, say attorneys with Paul Hastings LLP.
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3 Courts Weigh In On Faulty Workmanship Coverage
After a spate of bad decisions for policyholders on whether general liability policies can provide coverage for construction liabilities, three courts recently have done an about-face, holding that there is coverage in certain circumstances. In light of these rulings, policyholders should ensure that their policies include the "subcontractor exception" to the "your work" exclusion, says John Berringer of Reed Smith LLP.
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Patent License Challenges As Compulsory Counterclaims
The Federal Circuit's decision in Cummins Inc. v. TAS Distributing Company Inc. is a cautionary lesson to both patent licensors and licensees — a licensee accused of a contractual default may be obliged to challenge the licensed patents, even if it doesn’t want to, says Adrian Mollo of McKenna Long & Aldridge LLP.
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It’s My Expert, And I’ll Call Her If I Want To
The recent decision in Washington v. Perez is a useful reminder that defense counsel must remain mindful during opening statement and cross-examination that it may later decide not to call certain experts. Fortunately, this decision clarifies that New Jersey appellate courts recognize that the defense is entitled to change strategy as the case progresses, says Adam Tolin of Weil Gotshal & Manges LLP.
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Why The Auto-Owners V. Second Chance Ruling Is Unique
Recently in Auto-Owners Insurance Co. v. Second Chance Investments LLC, the Minnesota Supreme Court joined a handful of other state courts in deciding that an appraisal panel could not determine whether an insured sustained a total loss. This ruling is unique from others, however, because of the way the court included the state's standard fire policy, says Scott Johnson of Robins Kaplan Miller & Ciresi LLP.