Appellate

May 14, 2013
Genzyme Investors Urge 1st Circ. To Revive Fraud Action

A group of Genzyme Corp. investors on Monday urged the First Circuit to revive a putative consolidated class action accusing the company of lying about contamination at a key production plant, arguing a federal judge had wrongly ignored discounted evidence backing their securities fraud claims.
May 14, 2013
Goldman Dodges Insurer's $120M CDO Claims On Appeal

A New York state appeals court on Tuesday tossed ACA Financial Guaranty Corp.'s $120 million action targeting Goldman Sachs over a mortgage-backed securities transaction gone sour, finding Goldman never guaranteed that an outside hedge fund was taking an equity position favorable to ACA.
May 14, 2013
Insurer Can Keep Premium For Sham $5M Policy: 1st Circ.

In a published decision, the First Circuit found Monday that a Phoenix Cos. Inc. life insurer could rescind a $5 million policy and still keep the premium it received from a policyholder who pretended to be a well-to-do real estate investor to score the insurance.
May 14, 2013
NJ Blocked From Seizing $140M In Housing Funds

A New Jersey appeals court on Monday blocked the state from taking some $140 million from municipal affordable housing trust funds after fair housing advocates argued the measure would siphon money from the state’s low-income and disabled residents and Hurricane Sandy victims.
May 14, 2013
Pension Fund Tells 1st Circ. PE Cos. Are Businesses

A pension fund told the First Circuit on Friday that Sun Capital Partners is a trade or business under the Employee Retirement Security Income Act and can't hide behind its investment firm status to avoid liability for $4.5 million allegedly owed by a bankrupt portfolio company.
May 14, 2013
2nd Circ. Upholds Standard For SEC Debarment Of Officers

The Second Circuit on Tuesday upheld an 18-year-old precedent for determining when the U.S. Securities and Exchange Commission may bar a fraud defendant from serving as an officer or director of a public company, affirming a former Takeda Pharmaceuticals International Inc. executive’s ouster.
May 14, 2013
10th Circ. Axes $1.2M Judgment In Lloyds Coverage Row

The Tenth Circuit ruled Monday that a lower court relied on an erroneous conclusion when it found Lloyds of London failed to sufficiently indemnify Brecek & Young Advisors Inc. in an arbitration alleging the firm's agents mismanaged investment accounts, reversing a $1.2 million judgment in BYA's favor.
May 14, 2013
Shipbuilder Takes Fee Fight Against Workers To High Court

Shipbuilder Austal USA LLC asked the U.S. Supreme Court last week to overturn decisions denying it attorneys’ fees for defending hundreds of civil rights and employment discrimination claims by its workers, many of which were voluntarily withdrawn and frivolous, Austal said.
May 14, 2013
Order Over Judge's Racist Obama Email Is Moot, 9th Circ. Says

The Ninth Circuit has abandoned the order it issued from a judicial investigation into a racially charged email that the former chief judge of the Montana federal court sent about President Barack Obama because the judge has retired, the appeals court said Monday.
May 13, 2013
Attorneys Discuss Impact Of CLS Bank Decision

A deeply divided en banc panel of the Federal Circuit ruled Friday that a computerized platform for reducing risk in financial trading offered by Alice Corp. was merely an abstract concept that's ineligible for patent protection. Here, lawyers tell Law360 what the decision in CLS Bank International v. Alice Corp. Pty. Ltd, means for patent law.
May 13, 2013
Narrow Monsanto Patent Ruling Ducks Self-Replication Issue

The U.S. Supreme Court handed Monsanto Corp. a big win Monday but avoided giving the kind of broad guidance some were expecting on the patent exhaustion doctrine as it applies to self-replicating products, leaving the door open to more fights over patented biotechnology and software.
May 13, 2013
'Raging Bull' Heir Asks High Court To KO MGM Copyright Win

The daughter of “Raging Bull” author Frank Petrella has asked the U.S. Supreme Court to review a ruling upholding a copyright infringement win for Metro-Goldwyn Mayer Inc., citing an “entrenched” circuit split over whether the defense of laches applies in copyright cases.
May 13, 2013
Firing Didn't Violate Doc's Free Speech Rights, 4th Circ. Finds

A health clinic was free to fire a False Claims Act whistleblower who complained about deaths caused by medical care, the Fourth Circuit ruled Monday, finding the termination was contractually allowed and the physician's free speech rights weren't violated because he was carrying out official duties.
May 13, 2013
'Nightmare' Ruling On Software Patent Standard Baffles Attys

A fractured en banc Federal Circuit opinion on when inventions implemented using a computer are eligible for patents has dismayed attorneys hoping for clarity on the contentious issue and made it all but impossible to know whether software patents will survive scrutiny in future cases.
May 13, 2013
Justices Urged To Take Up Trademark Row Over Greek Paddles

A Texas craftsman who sells ceremonial paddles aimed at fraternities and sororities last week asked the U.S. Supreme Court to lift an injunction barring him from advertising using the Greek organizations’ trademarks, arguing the groups waited too long to sue and shouldn’t be entitled to relief.
May 13, 2013
Lawyers Weigh In On Supreme Court's Monsanto Ruling

The U.S. Supreme Court ruled Monday that an Indiana farmer violated Monsanto Co.'s patents on herbicide-resistant soybean plants by replanting seeds, striking down his argument that the agribusiness giant had exhausted its control of the genetically modified seed. Here, attorneys tell Law360 why the unanimous ruling in Bowman v. Monsanto Co. et al. is important.
May 13, 2013
NJ Court Won't Revive Sun Pharma's Contract Breach Suit

Sun Pharmaceuticals Inc. on Monday failed to reanimate a breach of contract suit against a New Jersey drug research firm after a state appellate court affirmed a trial judge's ruling that there was no evidence of bad faith in a botched deal between the companies.
May 13, 2013
Porn Didn't Reap US Profits For Cloud Co., 9th Circ. Hears

Hong Kong-based cloud-storage business owner FF Magnat Ltd. didn't profit from hosting Datatech Enterprises' pornographic films on its servers, Magnat told the Ninth Circuit on Monday, urging the appellate court to reverse a district judge's order freezing Magnat’s assets in the copyright-infringement suit.
May 13, 2013
Novartis Tells High Court State Punitive Awards Are Illegal

Novartis Pharmaceuticals Corp. is continuing its appeal of a $1.2 million verdict all the way to the U.S. Supreme Court, claiming that the family of a deceased woman who was allegedly disfigured by the bone drugs Aredia and Zometa is not eligible to receive punitive damages.
May 13, 2013
Judge Abused Authority With Plan B Order, 2nd Circ. Hears

A New York federal judge "plainly overstepped his authority" when he ordered the U.S. Food and Drug Administration to bypass its mandatory rulemaking procedures and make the contraceptive Plan B available over the counter without restrictions, the federal government told the Second Circuit on Monday.

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Expert Analysis

Divided Infringement Of System Claims After Centillion

After the Federal Circuit's Centillion Data Systems LLC v. Qwest Communications International Inc. decision and the district court decisions that have followed, it is clear that joint or divided infringement can be a powerful defense to patent infringement regardless of whether the asserted claims are method claims or system claims, say Jennifer Bennett and Mark Nelson of Dentons.
Thoughts On Oral Arguments In Gene Patent Case

On April 15, the U.S. Supreme Court heard oral arguments in the Myriad Genetics Inc. case, which addresses whether human genes are patentable. The justices struggled with the problem of balancing concerns relating to scientific freedom to experiment with natural products, the need for economic incentives to stimulate investment, and the widespread availability of medical care, say Deborah Somerville and Joseph Coppola of Kenyon & Kenyon LLP.
Inside The Supreme Court Review Of Oxford Health

Oxford Health Plans LLC v. John Ivan Sutter may not be a case about deference after all, but more fundamentally about what parties can expect in arbitration under the Federal Arbitration Act. Arbitrator interpretations have never been impervious. And, as Stolt-Nielsen and Concepcion prove, the U.S. Supreme Court sees class arbitration as a different animal, say attorneys with Homer Bonner Jacobs.
Federal Standard For Successor Liability Applies To FLSA

The Seventh Circuit ruling in Teed v. Thomas & Betts Power Solutions LLC serves as a reminder and warning to buyers who are pursuing distressed acquisition strategies for a company or its assets, that through the doctrine of successor liability, they may still be held responsible for the federal labor law claims against the seller, even if they affirmatively disclaim all liabilities in the documentation of sale, say attorneys with Haynes and Boone LLP.
Another Look At The Doctrine Of Equivalents

Recent Federal Circuit opinions upholding infringement findings under the doctrine of equivalents and vacating findings of noninfringement have prompted renewed questions of whether the doctrine may be coming back to life. An analysis of recent district court cases applying the doctrine suggests that reports of the doctrine’s revival are at least somewhat exaggerated, say Elizabeth Brann and Bob Chen of Paul Hastings LLP.
How Bowman V. Monsanto May Wreak Havoc On Biotechnology

While it seems likely that the Federal Circuit’s decision in Bowman v. Monsanto Company may ultimately be upheld, the U.S. Supreme Court’s written opinion still holds the potential to enormously impact the current licensing practices of the biotechnology industry and any life sciences company that makes, sells, uses or purchases self-replicating biotechnology, say attorneys with Choate Hall & Stewart LLP.
Reports Of Death Of Fla. Economic Loss Rule Are Exaggerated

Depending on how you read it, the Florida Supreme Court’s Tiara Condominium opinion renouncing the contractual privity branch of the economic loss rule either threw open the courthouse doors to plaintiffs seeking to bolster purely contractual disputes with tort claims or simply renounced a relatively recent judge-made doctrine in favor of long-standing common law principles that do the same job under a different label. We believe a close reading better supports the latter conclusion, say attorneys with Hunton & Williams LLP.
How Do You Solve A Problem Like ReDigi?

A federal district court in New York recently ruled against ReDigi, the fledgling digital music resale service provider, in a copyright challenge brought by Capital Records. Although the result was no surprise, the decision — which will likely be appealed — leaves digital copyright law lagging some distance behind its favored hard copy brother, says Peter Karol of New England Law, Boston.
High Court Leaves Road Wide Open For CWA Citizen Suits

Recently in Decker v. Northwest Environmental Defense Center, the U.S. Supreme Court determined that the U.S. Environmental Protection Agency validly interpreted its stormwater runoff regulations, which will save many in the logging industry from the cost of the permitting process. The decision also leaves environmental groups ample freedom to bring future Clean Water Act suits, say attorneys with Vinson & Elkins LLP.
Amended Complaint Nullifies Original In 3rd Circ.

The Third Circuit ruling in West Run Student Housing Associates LLC v. Huntington National Bank serves as a reminder of the advisability of amending pleadings, where permitted by the federal rules, when errors are discovered. Failure to do so could bind a party to such erroneous factual allegations, rendering them judicial admissions that could result in dismissal of the claim, say Elizabeth Sher and Lisa Gonzalo of Day Pitney LLP.

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