Appellate

May 7, 2013
CoreValve Asks High Court To Define Patent Enablement

CoreValve Inc. urged the U.S. Supreme Court on Monday to clarify the Federal Circuit's prior art enablement doctrine, alleging the court adopted three battling standards and erroneously upheld Edward Lifesciences Corp.'s $73.9 million infringement award over catheter heart valve technology.
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.
February 11, 2013
NLRB Appointee Ruling Cited In Ex-Union Member's Appeal

A former nurses' union member who claims nonmember objectors cannot be charged for political lobbying expenses asked the D.C. Circuit on Monday to order the National Labor Relations Board to cease adjudicating her case, citing the court's bombshell ruling invalidating the appointments of three board members.
February 1, 2013
Mining Cos. Ask High Court To Decide NEPA Standing Fight

Two mining companies — whose economic interests in Idaho’s Payette National Forest prohibited them from challenging a U.S. Forest Service road plan, according to the Ninth Circuit — last week asked the U.S. Supreme Court to reverse that finding and allow their complaint about the plan to proceed.
January 23, 2013
FCC Can't Dictate Utility Pole Charges, DC Circ. Told

A group of electric utility companies told a D.C. Circuit panel Wednesday that the Federal Communications Commission abused its discretion when it limited what utility pole owners could charge telecommunications companies for attaching their lines on existing poles, saying Congress never gave the agency that power.
January 22, 2013
FERC Turned Blind Eye to Congestion Fee Fight, DC Circ. Told

Utility company PPL EnergyPlus LLC told a D.C. Circuit panel Tuesday that the Federal Energy Regulatory Commission allowed a regional transmission organization to shirk its legal responsibility to charge energy grid users adequate transmission congestion fees, which cut into the company's revenue.
January 17, 2013
Biz Groups Push Back Against SEC 'Conflict Minerals' Rule

The U.S. Chamber of Commerce and two other business groups on Wednesday in the D.C. Circuit fleshed out their challenge to a U.S. Securities and Exchange Commission disclosure requirement for companies using “conflict minerals,” accusing the regulator of failing to justify the rule or provide reasonable exemptions.
January 11, 2013
Green Groups Take NJ Pipeline Battle To DC Circ.

Two environmental groups on Thursday asked the D.C. Circuit for an emergency stay of the Federal Energy Regulatory Commission's approval of a Kinder Morgan Energy Partners LP unit's $400 million natural gas pipeline expansion in Pennsylvania and New Jersey.
January 8, 2013
Texas Takes Water Dispute With NM To Supreme Court

Texas escalated an ongoing water battle with New Mexico on Tuesday by filing a complaint with the U.S. Supreme Court alleging the neighboring state was diverting water from the Rio Grande meant for Texas.
December 17, 2012
US Offshore Leasing Plan Fails Economic Test, DC Circ. Told

An environmental advocacy group on Monday challenged the Obama administration’s five-year offshore oil and gas leasing program in the D.C. Circuit, claiming its plans for new lease sales were economically unjustified.
December 5, 2012
Nuclear Safety Group Wants Vermont Yankee Shut Down

A nuclear power safety advocacy group on Tuesday petitioned the Vermont Supreme Court for an order to close the Vermont Yankee nuclear power plant, saying operator Entergy Corp. was operating it without a necessary state permit.
November 28, 2012
Argentina Wins Stay On Court-Ordered Bond Payments

Argentina and a group of bondholders won a victory in the Second Circuit Wednesday, when the court stayed an order preventing the nation from paying interest to the bondholders unless it first paid other bondholders who have refused to go along with a restructuring of the country's $80 billion in defaulted debt.
November 21, 2012
Enviros Challenge EPA's Chromium Emissions Standards

The Sierra Club and two other environmental groups are claiming in the D.C. Circuit that the U.S. Environmental Protection Agency's final rule on emissions standards for chromium electroplating plants does not meet Clean Air Act requirements.
November 20, 2012
MetroPCS, T-Mobile Look To Nix Order Blocking $1.5B Merger

MetroPCS Communications and Deutsche Telekom AG unit T-Mobile USA Inc. on Monday asked a Texas appeals court to toss a temporary restraining order blocking their planned $1.5 billion merger, arguing the suit should have been filed in Delaware under a shareholder agreement.
November 14, 2012
CB&I Ruling Deters CERCLA Cleanups, US Tells 3rd Circ.

The U.S. government urged the Third Circuit on Tuesday to overturn a district court ruling allowing Chicago Bridge & Iron Co. to dodge environmental cleanup claims, arguing that the decision unfairly punishes Trinity Industries Inc. for entering into a consent decree with state environmental regulators.
October 23, 2012
Contractor Wants 2nd Shot At Texas Utility's Immunity Defense

An industrial contractor asked the Texas Supreme Court on Monday to revive its $12 million suit against San Antonio-owned CPS Energy, arguing an appellate court's ruling that the utility was immune from being sued on contractual grounds was unprecedented.
October 22, 2012
Biz Groups Target SEC's Conflict Minerals Rule In DC Circ.

The U.S. Chamber of Commerce on Friday lodged a petition with the D.C. Circuit challenging a Dodd-Frank rule which mandates that companies reveal to the U.S. Securities and Exchange Commission if they utilize so-called conflict minerals in their products.
October 22, 2012
TransCanada Appeals Keystone Land-Access Ruling In Texas

TransCanada Corp. on Friday told a Texas appeals court that it should have immediate access to privately owned land to begin construction of a segment of its Keystone XL Pipeline despite unresolved questions about its claim to the property.
October 17, 2012
Texas Landowners Contest Keystone Pipeline Construction

A group of landowners asked a Texas appeals court on Tuesday to stop TransCanada Corp. from installing a segment of the Keystone XL Pipeline across their property, arguing the oil and gas giant never established its right to do so.
October 11, 2012
Walgreen Fights Shipping Center's DEA Suspension At DC Circ.

The pharmacy chain Walgreen Co. sued the Drug Enforcement Administration on Wednesday and asked the D.C. Circuit to vacate a DEA order that prevents one of its drug distribution facilities in Florida from shipping controlled substances, saying that the DEA based its order on outdated information.

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Expert Analysis

How Monsanto Applies To Nonagricultural Biotechnology

The U.S. Supreme Court's recent decision in Bowman v. Monsanto Co. provides the biotech community some much-needed clarity regarding self-replicating inventions. Perhaps equally important, the court displayed a keen sensitivity to the negative implications of an overly broad exhaustion doctrine, say attorneys with Womble Carlyle Sandridge & Rice LLP.
1st Amendment Litigation: DC Circ. Edition

The D.C. Circuit’s broadly framed decision in National Association of Manufacturers v. National Labor Relations Board confirms that businesses should evaluate any informational or warning obligations with an eye toward protecting their First Amendment rights, say attorneys with Wiley Rein LLP.
When Rights Of Publicity Trump 1st Amendment

An important practice tip that flows from the Third Circuit's opinion in Ryan Hart v. Electronic Arts Inc. is that talismanic invocation of the First Amendment does not resolve the legal problem of balancing that amendment with competing rights such as the right of publicity, says Ronald Katz of Manatt Phelps & Phillips LLP.
Temporary Regulatory Takings Do Exist In Calif.

Property owners rarely succeed with regulatory takings claims — but securing a victory on liability and a damages award for a temporary regulatory taking, well, that is more in the realm of unicorns and the Loch Ness Monster. That all changed recently when the California Court of Appeal issued its decision in Lockaway Storage v. County of Alameda, say attorneys with Nossaman LLP.
Pitfalls For Lenders Redeeming Ala. Property

In First United Security Bank v. McCollum, the Alabama Court of Civil Appeals addressed the rights of a lender that redeems property sold at a tax sale as a result of its borrower’s failure to pay his property taxes. In certain situations, the decision will penalize lenders and awards property owners with a financial windfall, says Jack Kubiszyn of Bradley Arant Boult Cummings LLP.
DC Circ. Backs FERC's Approach To Return On Equity

Recently, the U.S. Court of Appeals for the District of Columbia Circuit rejected Southern California Edison’s challenge to the Federal Energy Regulatory Commission's methodology for determining a company’s base return on equity. One noteworthy lesson from the case is that this method can have a material affect on the ROE, with a large revenue impact, say attorneys with Day Pitney LLP.
Righthaven V. Hoehn: Bad News For Copyright Trolls

In its recent decision in Righthaven LLC v. Hoehn, the Ninth Circuit made clear that courts must look beyond labels in agreements and evaluate the substance of the rights actually assigned in order to determine whether an assignee has standing to pursue a claim for copyright infringement, say Benjamin Marks and Elisabeth Sperle of Weil Gotshal & Manges LLP.
Ill.'s Unclear Endorsement For Asbestos-Injury Losses

The Illinois appellate court decision in John Crane Inc. v. Admiral Insurance Co. on joint and several liability of excess insurers covering asbestos-related injury claims left several questions unanswered — most importantly, regarding separate injury triggers and the "all sums with stacking" approach, say attorneys with Wilson Elser Moskowitz Edelman & Dicker LLP.
High Court Takes On Declaratory Judgment Burden Of Proof

With the U.S. Supreme Court granting certiorari in Medtronic Inc. v. Boston Scientific Corp., it will help clarify who bears the burden of proof in a declaratory judgment action. If the court affirms the Federal Circuit, the traditional patent law for this type of controversy will be turned on its head, requiring a licensee to disprove infringement, says Shashank Upadhye of Seyfarth Shaw LLP.
Rise Of The Machines — Predictive Coding Goes Mainstream

The pros of using predictive coding far outweigh the cons. Given the heavy pressure on law firms and in-house counsel to reduce discovery costs, as well as the Justice Department's recent stance on the subject, it appears predictive coding will continue to emerge from the obscure world of legal technology to the mainstream of legal practice, say Michael Moscato and Myles Bartley of Curtis Mallet-Prevost Colt & Mosle LLP.

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