Appellate

  • January 17, 2017

    9th Justice Will Loom Large Over Class Waiver Case

    With the U.S. Supreme Court set to consider whether businesses can force employees to waive the right to collectively pursue employment-related claims, attorneys say the outcome could hinge on the person President-elect Donald Trump chooses to fill the high court’s vacant seat.

  • January 17, 2017

    High Court Wrestles With Clash Over Stale Debt In Bankruptcy

    The U.S. Supreme Court on Tuesday pressed a professional debt collector to explain why it should not face legal liability if it pursues stale debt in bankruptcy proceedings, and questioned to what extent the U.S. Bankruptcy Code may preclude debtors from filing consumer protection law reprisals.

  • January 17, 2017

    Justices Mull 'Crime Of Violence' In Immigration Case

    The U.S. Supreme Court on Tuesday heard oral arguments in an immigration case over whether the definition of a “crime of violence” is unconstitutionally vague, with the justices grappling with the vagueness standard and how the definition differed from a separate statute that was struck down in 2015.

  • January 17, 2017

    Enviros Urge Justices To Pass On Polar Bear Habitat Appeal

    The Center for Biological Diversity is urging the U.S. Supreme Court not to upend a Ninth Circuit decision backing the U.S. Fish and Wildlife Service's critical habitat designation for the polar bear, saying the state of Alaska and other challengers have made too big of a deal out of the size of the habitat designation.

  • January 17, 2017

    9th Circ. Urged To Ax Tempur-Sealy's Class Action Coverage

    Hartford Fire Insurance Co. asked the Ninth Circuit on Tuesday to reverse a California federal judge's ruling that it must defend Tempur-Sealy International Inc. in a proposed class action alleging that the mattress company lied in marketing materials, arguing that the underlying complaint doesn't seek any damages covered by Hartford's policy.

  • January 17, 2017

    Offensive TMs At High Court: Everything You Need To Know

    The highest-profile trademark case in years will be argued before the U.S. Supreme Court on Wednesday, pitting a rock band and a billion-dollar football team against the federal government — and the First Amendment against laws limiting offensive speech. To get you up to speed, here's everything you need to know.

  • January 17, 2017

    J-M Amici Want 'Paternalistic' Conflict Rule, Sheppard Says

    A band of companies and others opposing Sheppard Mullin Richter & Hampton LLP’s appeal at the California Supreme Court of a $3.8 million fee forfeiture over an undisclosed conflict are “divorced from the realities of the modern legal marketplace” and ignore the benefits conflict waivers bestow on clients, the firm said in a Tuesday filing.

  • January 17, 2017

    Doctor’s Assistant Escapes Malpractice Suit Over Boy’s Coma

    A North Carolina appellate court on Tuesday cleared a physician’s assistant and a doctors group of failing to properly treat the abnormally high blood sugar levels that put a boy into a coma, saying the evidence indicated that the assistant complied with the appropriate standard of care.

  • January 17, 2017

    Capital One Says $57M Loan Guarantee Is Enforceable

    Capital One told a New York appellate panel Tuesday that a lower court should have forced loan guarantors to cough up $57 million for a defaulted loan for taxi medallions, saying that the contract language calling the guarantees absolute, irrevocable and unconditional entitles the bank to collect from the guarantors.

  • January 17, 2017

    Fed. Circ. Vacates Ericsson Win In Broadband Patent Suit

    The Federal Circuit on Tuesday unwound a lower court’s ruling that had freed Ericsson Inc. from infringement claims on three patents, concluding in a split decision that the trial judge had done a jury’s job by weighing evidence from each party before ruling in Ericsson’s favor.

  • January 17, 2017

    Pa. Court Revives Med Mal Suit Over Patient's Suicide

    A Pennsylvania appellate court on Tuesday reversed a trial court's dismissal of a medical malpractice suit filed in connection with a mental health patient's suicide, saying the evidence showed that the hospital may have been grossly negligent in allowing the patient to leave the emergency room.

  • January 17, 2017

    Egg Contamination Shouldn't Lead To Jail, High Court Told

    Quality Egg LLC executives Austin “Jack” DeCoster and his son Peter DeCoster have asked the U.S. Supreme Court to review their jail sentences related to a national salmonella outbreak, saying individuals cannot get jail time for vicarious liability offenses.

  • January 17, 2017

    Fighting Irish Ask 1st Circ. To Uphold Arbitral Fault Finding

    The University of Notre Dame urged the First Circuit on Tuesday to uphold a Massachusetts federal judge's confirmation of an arbitral finding that a builder and developer were at fault for problems at a London dormitory, saying the judge rightly recognized the finding as final.

  • January 17, 2017

    Chicago Condo Defect Suit Should Be Covered, 7th Circ. Told

    A slew of developers and contractors that worked on a Chicago condominium building urged the Seventh Circuit on Monday to uphold a lower court's ruling that Westfield Insurance Co. must defend them in construction defect litigation, asserting that the underlying suit alleges multiple forms of covered property damage.

  • January 17, 2017

    Pilots, Flight Attendants Sue DOT Over Norwegian Air Permit

    A coalition of unions representing pilots and flight attendants has sued the U.S. Department of Transportation in the D.C. Circuit to challenge the agency's grant of a foreign air carrier permit to Norwegian Air Shuttle ASA's Irish subsidiary.

  • January 17, 2017

    2nd Circ. Says EDMC Restructuring Did Not Violate Bond Law

    The Second Circuit on Tuesday overturned a federal district judge’s finding that a $1.5 billion out-of-court restructuring proposed by for-profit college operator Education Management Corp. violated a Depression-era law meant to protect bondholders, saying the payment terms governing the bonds at issue were not modified.

  • January 17, 2017

    NC Court Denies Appeal In Penile Implant Med Mal Case

    A North Carolina appellate court on Tuesday rejected an appeal in a medical malpractice suit accusing a urologist of botching a man’s prosthetic penis implant surgery, saying the patient’s voluntary dismissal of certain claims did not constitute a final judgment, therefore the ruling in question was not eligible for appeal.

  • January 17, 2017

    Justices Won't Hear Cuozzo Appeal Of Apple Patent Win

    The U.S. Supreme Court Tuesday declined to review a Federal Circuit finding that it is jurisdictionally barred under the high court’s Cuozzo decision from considering if the Patent Trial and Appeal Board erred when it invalidated two SightSound Technology patents challenged by Apple on grounds Apple didn't explicitly raise.

  • January 17, 2017

    Supreme Court Urged To Hear Suit Over Too-Long Detention

    An unauthorized immigrant who says he should be allowed to challenge federal officials for allegedly detaining him longer than necessary has asked the U.S. Supreme Court to review his case after the Eleventh Circuit said he could not receive monetary relief.

  • January 17, 2017

    EPA Wants To Revise Haze Rules Over Texas' Objection

    The U.S. Environmental Protection Agency and environmental groups have asked the Fifth Circuit to deny Texas’ bid to throw out part of the federal government’s regional haze plan, arguing that instead the EPA should be allowed to revise the plan on remand.

Expert Analysis

  • Defibrillator Decision Does Not Shock The Conscience

    Eric Alexander

    Bad cases make bad law, but egregiously overreaching cases can make good law. In Wallis v. Brainerd Baptist Church, decided recently by the Tennessee Supreme Court, a dead man's estate sued the seller of a defibrillator that was available but not used on the decedent during his heart attack. Imposing liability in such circumstances would be bad public policy, says Eric Alexander of Reed Smith LLP.

  • Amended Rule 37(e): 1 Year Later

    Samantha Southall

    After a full year in effect, the amended Federal Rule of Civil Procedure 37(e) has been tested in a variety of district courts. A sampling of these decisions reveals that courts seem to be adhering closely to the amended rule and ordering adverse inference instructions only where there was intent to deprive another party of access to relevant information, say Carrie Amezcua and Samantha Southall of Buchanan Ingersoll & Rooney PC.

  • Health Care Enforcement Review And 2017 Outlook: Part 2

    Karen S. Lovitch

    In 2016, courts around the country heard cases involving a variety of False Claims Act and other enforcement-related matters. Going forward these case law developments are expected to have an impact on both the scope of FCA liability and the means by which FCA liability can be proven at trial, say attorneys at Mintz Levin Cohn Ferris Glovsky and Popeo PC.

  • Key Class Action Takeaways From Briseno V. ConAgra Foods

    Robert J. Herrington

    Unless reversed or modified, the Ninth Circuit's decision in Briseno v. ConAgra Foods means class action plaintiffs aren't required to establish an administratively feasible way to identify putative class members for class certification. But aside from that holding, the opinion addresses several other arguments often raised in class actions in ways that are mostly unhelpful for defendants, say attorneys at Greenberg Traurig LLP.

  • Avoiding The Hidden Costs Of Bargain-Priced E-Discovery

    Michael Cousino

    Many organizations are interested in finding electronic discovery partners who offer tantalizingly low prices for electronic discovery services. However, unforeseen gaps, lax security practices, ignorance of global practices and delayed deliverables can all add up to a surprisingly large final cost, says Michael Cousino of Epiq Systems.

  • Dance Marches On For Biosimilars In Amgen V. Sandoz

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    Two sections of the Biologics Price Competition and Innovation Act are the subject of writs of certiorari that have just been granted by the U.S. Supreme Court in Amgen v. Sandoz. The need for resolution of ambiguity in the statute is clear, says Scott Pierce of Hamilton Brook Smith Reynolds PC.

  • What Trump High Court Candidates Say About 1st Amendment

    Gayle C. Sproul

    As media advocates, we wondered how President-elect Donald Trump's soon-to-be-announced U.S. Supreme Court nominee might react to Trump’s vow to shred the hard-won protections now embedded in the law of libel. We found that none of the opinions from judges on his shortlist hint at any inclination to depart from these established rules, say Gayle Sproul and Max Mishkin of Levine Sullivan Koch & Schulz LLP.

  • Examining Preponderance-Of-Evidence Standard At 7th Circ.

    Cinthia Granados Motley

    In Ramirez v. T&H Lemont, the Seventh Circuit recently reasoned that when sanctioning a party’s misconduct under inherent authority or Federal Rule of Civil Procedure 37, a preponderance of evidence is sufficient. The decision will no doubt extend beyond the requisite proof for discovery-related sanctions and misconduct and provide guidance on the applicable burden of proof in other contexts, say attorneys at Sedgwick LLP.

  • Native American Cases To Watch In 2017

    Thomas F. Gede

    The current eight-member U.S. Supreme Court will examine two Native American cases early this year, and may hear additional cases following the confirmation of a ninth justice. Thomas Gede of Morgan Lewis & Bockius LLP discusses the most important cases to pay attention to, including Lewis v. Clarke and Lee v. Tam.

  • When Making The Sale Isn't 'Offering To Sell'

    JD Wooten

    Is Amazon legally the seller of items made available by third parties on Amazon.com? And is the e-commerce giant liable if those products infringe someone else's patents? A Washington federal court answered no to both questions. As the Federal Circuit considers the case, it must balance patent protection with market access, says JD Wooten of Womble Carlyle Sandridge & Rice LLP.