Appellate

April 9, 2013
HIPAA Preempts Fla. Medical Privacy Law, 11th Circ. Says

The Eleventh Circuit on Tuesday affirmed that the Health Insurance Portability and Accountability Act of 1996 trumps a Florida state law governing the release of nursing home medical records, saying the state statute interferes with HIPAA’s goal of maintaining patient confidentiality.
April 9, 2013
Post-Gazette Seeks High Court Review Of Poll Access Suit

The Pittsburgh Post-Gazette has asked the nation's high court to revive its First Amendment challenge to a Pennsylvania law barring media and anyone not voting from being within 10 feet of polling places, arguing that appellate courts are split on access rights of the press.
April 8, 2013
Nev. Can't Bar RRG's Minimum Auto Insurance: 9th Circ.

The Nevada commissioner for insurance cannot bar the Alliance of Nonprofits for Insurance Risk Retention Group from issuing so-called first-dollar automobile insurance policies because of a federal law that prevents state law from restricting such risk retention groups from operating, the Ninth Circuit ruled Monday.
April 8, 2013
Fla. Appeals Court Agrees To Rethink Workers' Comp Ruling

A Florida appeals court has agreed to reconsider a ruling that extended temporary disability benefits to 260 weeks after deeming a provision in the Florida Workers' Compensation Law limiting the benefits to 104 weeks unconstitutional.
April 8, 2013
DC Circ. Told EPA's CO2 Emissions Exemption Was Premature

Environmental groups urged a D.C. Circuit panel on Monday to nix a U.S. Environmental Protection Agency rule exempting biomass-burning facilities from carbon dioxide emission limits under the Clean Air Act, saying the agency is ignoring congressional mandates to regulate the pollutant.
April 5, 2013
Liberty's ACA Challenge Jumps The Gun, 4th Circ. Hears

The U.S. Department of Justice on Thursday told the Fourth Circuit that the Anti-Injunction Act, which prohibits lawsuits challenging a tax before the tax has been assessed, should block Liberty University's challenge to the Affordable Care Act's employer mandate.
April 4, 2013
DC Circ. Says Feds Have 20 Days To Detail FOIA Responses

Granting a victory to government transparency advocates, the D.C. Circuit on Tuesday said that federal agencies have a maximum of 20 days to explain what documents they plan to produce or withhold in response to a Freedom of Information Act request.
April 3, 2013
Firemen Must Fund Pension Benefits, NY High Court Says

Expired collective bargaining agreements between New York's cities and their police and firefighter unions are not "in effect" for recent hires seeking access to pension benefit plans that existed prior to the state's moves to increase the amount workers must kick in toward retirement, a divided New York State Court of Appeals ruled Tuesday.
April 1, 2013
11th Circ. Blocks DOL's Visa Rules For Unskilled Workers

The Eleventh Circuit on Monday said it was "absurd" for the U.S. Department of Labor to reason that it had the authority to make rules for a visa program for unskilled foreign workers simply because it had a relationship with the department that administered the program, and blocked the rules.
April 1, 2013
Texas Senate Tackles Judicial Election Reform

Texas lawmakers on Monday said they want to change how the state’s appellate judges are elected, moving away from current partisan voting to a system centered on retention elections, in an attempt to get more qualified jurists on the bench and avoid public perception of bias.
April 1, 2013
Chamber Asks High Court To Hear Fight Over FCA Changes

The U.S. Chamber of Commerce on Friday urged the U.S. Supreme Court to hear a case challenging the way prosecutors have interpreted the retroactive effective date of major changes to the False Claims Act, arguing that billions of dollars are on the line.
April 1, 2013
High Court Rejects Challenge To EPA Nitrogen Dioxide Rule

The U.S. Supreme Court on Monday rejected a petition by oil and gas industry group the American Petroleum Institute to take up its case against the U.S. Environmental Protection Agency's efforts to increase restrictions on industrial nitrogen dioxide emissions.
April 1, 2013
Airports Sue To Block FAA Control Tower Closures

The Federal Aviation Administration has been hit with lawsuits in the D.C. Circuit from airports in Spokane, Wash., Bloomington, Ill., and three Florida cities challenging the agency’s plan to close their air traffic control towers, as the agency seeks to shed $637 million through budget cuts triggered by Congress' sequestration.
March 29, 2013
Ralphs Takes Calif. Union-Picketing Fight To High Court

Ralphs Grocery Co. has asked the U.S. Supreme Court to overturn a California Supreme Court decision allowing a labor union to picket on private property outside one of the chain's stores, claiming the state laws on which the ruling was based are unconstitutional.
March 29, 2013
NYC ‘Soda Ban’ Battle Bubbles Up To Appeals Court

Health groups and the administration of New York City Mayor Michael Bloomberg on Thursday began the process of appealing a March 11 ruling striking down the billionaire mayor’s portion limits for sugary drinks known as the “soda ban.”
March 28, 2013
Pa. Supreme Court To Tackle Judges' Mandatory Retirement

The Pennsylvania Supreme Court agreed Thursday to exercise special jurisdiction to hear a pair of suits filed in the Commonwealth Court by state judges challenging a provision of the state constitution mandating that judges retire at the age of 70.
March 28, 2013
6th Circ. Strikes Down Challenge To Truck Safety Rules

The Sixth Circuit on Thursday rejected a trucking industry group's challenge of new National Highway Traffic Safety Administration roofing safety standards that apply to previously unregulated custom-made work trucks, finding the rule provides manufacturers with a reasonable path to compliance.
March 27, 2013
Justices Skeptical Of Federal Benefits Ban For Gay Couples

A majority of U.S. Supreme Court justices on Wednesday expressed skepticism over part of a federal law defining marriage as a union between a man and a woman as they considered arguments over the constitutionality of the Defense of Marriage Act.
March 27, 2013
6th Circ. Upholds HHS Disproportionate Share Payment Rule

The Sixth Circuit on Wednesday backed a U.S. Department of Health and Human Services regulation giving extra Medicare payments to hospitals which serve a disproportionate share of poor patients, despite a Michigan hospital's claims the agency's implementation of the rule had unfairly stiffed it on payments.
March 26, 2013
High Court Seems Wary Of Broad Gay Marriage Ruling

Supporters and opponents of California's prohibition on same-sex marriages presented vastly different views on the institution of marriage to the U.S. Supreme Court on Tuesday, but several justices appeared focused on procedural issues that may limit the reach of the high court's eventual ruling.

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Expert Analysis

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.
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.
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.
9th Circ. Leaves Broughton-Cruz Hanging

The Ninth Circuit decision in Kilgore v. KeyBank NA leaves open the question of whether and to what extent California's Broughton-Cruz rule survives the U.S. Supreme Court decision in AT&T Mobility LLC v. Concepcion. It also suggests additional guidance to maximize enforcement of arbitration agreements and class action waivers, say attorneys with Pillsbury Winthrop Shaw Pittman LLP.
Don't Let Your Plaintiff Get Away In CEPA Cases

New Jersey's Conscientious Employee Protection Act is a powerful anti-retaliation statute, providing an array of significant remedies to an aggrieved party. However, as taken from Hitesman v. Bridgeway Inc., with great power comes great responsibility, including the important gatekeeping functions of trial courts in cases brought under the act, says Lawrence Del Rossi of Drinker Biddle & Reath LLP.
An Update On Daubert And Class Certification

The U.S. Supreme Court’s decision in Comcast v. Behrend clearly endorses an in-depth analysis of plaintiffs’ class action theories at the class certification stage even where the merits are implicated. This suggests that the court may favor a full Daubert analysis with regard to experts’ class certification opinions, say attorneys with Skadden Arps Slate Meagher & Flom LLP.
Reconsidering Claim Construction Standard Of Review

In Lighting Ballast Control LLC v. Philips Electronics North America, the Federal Circuit will be reconsidering en banc the strictness by which Federal Circuit and other appellate judges evaluate rulings by district court judges. Any change in the standard of review for district court claim construction rulings could have a significant impact on U.S. patent litigation, says Rodger Sadler, patent litigation counsel at Canon Inc.
AUO Case Could Have Major Impact On Cartel Investigations

The recently filed appellate briefs in the Ninth Circuit case of U.S. v. AU Optronics Corporation raise issues of critical importance in the prosecution of foreign cartel cases in the U.S., including the extraterritorial reach of the Sherman Act and the limitations of the Foreign Trade Antitrust Improvement Act, and whether foreign price-fixing is subject to the "rule of reason" or per se treatment, says Samuel Miller of Sidley Austin LLP.
So You Think You Have Replacement Cost Coverage ...

In light of the Illinois Appellate Court's decision in Area Erectors Inc. v. Travelers Property Casualty Co., insureds should know that just because they have a “replacement cost” policy, it doesn’t necessarily mean that they’re entitled to recover the cost from the insurer to replace damaged property, says Neil Posner of Much Shelist PC.
Kiobel Ruling Curbs Potential ATS Liability — For Now

While the U.S. Supreme Court has upheld the Second Circuit ruling on the reach of the Alien Tort Statute, the court's narrow holding in Kiobel v. Royal Dutch Petroleum, issues raised in concurring opinions and the submission of voluminous amicus briefs all suggest a strong likelihood of continued challenges regarding overseas violations of international law. Mining, oil and pharmaceutical companies, manufacturers and financial institutions doing business on foreign soil should take note, say Benjamin Haglund and Barbara Yu of Day Pitney LLP.

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