Appellate

  • February 23, 2018

    9th Circ. OKs Toss Of Tribal Water Project Row

    The Ninth Circuit on Thursday affirmed a lower court’s dismissal of a suit brought by an organization representing Montana landowners that disputes the U.S. Bureau of Indian Affairs’ control of an irrigation project, agreeing that the court did not have jurisdiction over the matter.

  • February 23, 2018

    La. Court Revives Suit Over Hospital Care During Katrina

    A Louisiana state appellate court has revived a woman’s suit against a New Orleans hospital over the way it allegedly failed to provide for her mother during Hurricane Katrina, ruling that the woman should be allowed more discovery time to find an expert to support her claims.

  • February 23, 2018

    Patent Agent Emails Merit Privilege, Texas Justices Say

    The Texas Supreme Court on Friday sided with an inventor and upended a trial court's order that he turn over more than 300 emails between himself and his nonattorney patent agent in a dispute over restaurant technology, holding that the communications are privileged under the state's evidence rules.

  • February 23, 2018

    The 2017 Federal Circuit Year In Review

    After a three-year surge, patent suits at the Federal Circuit leveled off last year as the court showed signs of adjusting to its bustling workload. The judges found time to write more opinions, and they reached greater consensus, penning fewer separate concurrences and dissents than in 2016.

  • February 22, 2018

    Drivers Slam Fee Bids By 'Ghost Lawyers' In $10B VW Deal

    Hundreds of “ghost lawyers” who showed up at the $10 billion resolution of multidistrict litigation over Volkswagen AG’s diesel-emissions scandal shouldn’t get a cut of the awarded fees and costs since their work didn’t benefit the whole class, the vehicle owners told the Ninth Circuit on Thursday.

  • February 22, 2018

    Tex. Appeals Court Says Mining Co. Can Redo Atty DQ Bid

    A Texas appellate court ruled Wednesday that Chilean mining company Inppamet deserved reconsideration on its bid to disqualify a Dallas law firm in a $60 million contract dispute with RSR Corp. after the state Supreme Court cleared the firm, finding that disqualification could be appropriate under a different standard.

  • February 22, 2018

    Sam's Club Can't Escape $1M Verdict Over Woman's Injury

    Sam's Club again lost its challenge to a $1 million verdict for a customer left scarred and limping after injuring her leg at a New Jersey store, with a state appeals court saying Thursday that the business failed to show the award constitutes a miscarriage of justice.

  • February 22, 2018

    9th Circ. Won't Reopen 'Ballers' Copyright Suit

    A Ninth Circuit panel Thursday affirmed a district court decision that tossed a copyright infringement suit against HBO, Mark Wahlberg and Dwayne “The Rock” Johnson over their “Ballers” series, agreeing with a federal judge's finding that the show had only vague similarities to a television project that had not been produced.

  • February 22, 2018

    Converse Workers Ask 9th Circ. To Revive Bag Check Suit

    A group of Converse Inc. employees urged the Ninth Circuit on Wednesday to revive a class action alleging they were owed money for time spent going through mandatory security inspections, saying a trial court judge wrongly concluded that the amount of uncompensated time was too nominal to keep the case alive.

  • February 22, 2018

    Va. Supreme Court Overturns Patient’s $652K Med Mal Verdict

    The Virginia Supreme Court on Thursday overturned a jury verdict which found a doctor liable for injuries suffered by a woman due to an alleged botched hysterectomy, saying the patient failed to present any evidence at trial that the doctor proximately caused her injury.

  • February 22, 2018

    Doc Asks Texas Justices To Review Med Board Subpoenas

    A Texas doctor who is facing an investigation into his care of three patients has asked the state Supreme Court to hear his constitutional challenge to billing record subpoenas issued by the state medical board.

  • February 22, 2018

    Insurers Fire Back At Bank's Bid For 6th Circ. Revival

    Eight insurers have told the Sixth Circuit that not only did they rightfully refuse to pay $75 million toward a $212 million settlement First Horizon National Corp. reached with regulators, but that the appeals court should revive their bad faith and breach of settlement claims against the bank.

  • February 22, 2018

    4th Circ. Resurrects Medical Device Co. Investor Suit

    A split Fourth Circuit panel on Thursday revived a stock fraud suit stemming from accusations that the maker of a spinal surgery system encouraged surgeons using its system to seek fraudulent reimbursement from insurers, finding in part that the company’s alleged failure to disclose the purported scheme counted as an actionable omission.

  • February 22, 2018

    Comcast, Verizon Fight Fed. Circ. Redo After Alice Patent Win

    Comcast and Verizon urged the Federal Circuit on Wednesday not to rehear claims by Two-Way Media over four invalidated streaming media patents, saying the panel decision does not contradict Federal Circuit precedent and that en banc review is not warranted.

  • February 22, 2018

    SEC Case Exposes Justices' Rift Over 'Legislative History'

    The Supreme Court’s long-running tensions over the use of legislative history as a way to interpret law broke out into public view Wednesday in a case over the Dodd-Frank Act’s whistleblower provisions, as Justices Sonia Sotomayor and Clarence Thomas clashed over the value of a Senate report.

  • February 22, 2018

    Omni Urges 1st Circ. To Rehear Suit Over Hotel Lobby Assault

    Omni Hotels asked the First Circuit on Wednesday to reconsider the court’s decision to revive a man's suit accusing the company of negligence in an assault he suffered in a hotel lobby, saying circuit judges erred in accepting "inadmissible hearsay" and speculation about Omni’s standard of care.

  • February 22, 2018

    Pattern Of Disruptive Behavior Gets Fla. Lawyer Disbarred

    From loudly kicking counsel's table, to muttering “lie, lie, lie” while opposing counsel examined a witness, to calling a female attorney a dominatrix, a Florida attorney's repeated disruptive and obnoxious behavior pushed the state's Supreme Court to order his disbarment Thursday.

  • February 22, 2018

    Calif. Panel Says Ex-Perkins Coie Atty Must Arbitrate Claims

    A former Perkins Coie partner must arbitrate claims the law firm dipped into his wages without permission, a California appellate court said Wednesday, reversing a lower court's ruling that his work contract was unconscionable and its arbitration provision wasn't binding.

  • February 22, 2018

    7th Circ. May Call On Indiana In Fantasy NCAA Athlete Row

    Two Seventh Circuit judges considering whether to revive a proposed class action against DraftKings and FanDuel over their use of college athletes’ likenesses said Thursday they likely need the state of Indiana to weigh in on whether exemptions in its right of publicity law cover fantasy sports sites.

  • February 22, 2018

    Pa. Appeals Court Won't Revive USA Tech Derivative Suit

    A Pennsylvania appeals court said Thursday it would not revive a derivative lawsuit over inflated income reports by payment processor USA Technology Inc. as a result of the company’s failure to properly account for uncollectible debts from customers.

Expert Analysis

  • 2nd Circ. Raises Bar For US Jurisdiction Over Foreign Banks

    Robert Reznick

    The Second Circuit's recent decision affirming the dismissal of UBS from a Madoff case is useful for foreign banks facing U.S. litigation. The decision is a reminder that, for purposes of general personal jurisdiction, corporate structure matters, say attorneys with Orrick Herrington & Sutcliffe LLP.

  • Reading The 9th Circ.'s Tea Leaves On Injunctive Standing

    Alexandra Laks

    In Victor v. Bigelow and Khasin v. Bigelow, the Ninth Circuit recently found that injunctive standing in the misbranding context is limited and requires a current intent to purchase challenged products in the future. Whether a plaintiff has standing to pursue an injunction may depend on the plaintiff’s deposition testimony, say Alexandra Laks and Lucia Roibal of Morrison & Foerster LLP.

  • A Recurring Problem In Patentability Of Computer Software

    Benjamin Hattenbach

    In its discussion of the "abstract ideas" exception, Alice relied on Bilski. But the historical precedent cited by Bilski does not support the current patent regime. Courts should return to a clear delineation between patent-ineligible laws of nature and mathematical expressions thereof, and patent-eligible novel and useful inventions made by man, say Benjamin Hattenbach and Rosalyn Kautz of Irell & Manella LLP.

  • In Somers, High Court Takes Us Back To 2014

    Scott Oswald

    Justice Ruth Bader Ginsburg’s opinion in Digital Realty Trust v. Somers, which put a tight limit on anti-retaliation protections under the Dodd-Frank Act, emerged on Wednesday as the obverse of her 2014 opinion in Lawson. The real-world impact of Somers is likely to be immediate and somewhat perverse, says Scott Oswald of The Employment Law Group PC.

  • 5th Circ. Adds To Split On Review Of Jury Instruction Errors

    Andrew Goldsmith

    Several circuits have taken different approaches on how to assess the prejudice caused by erroneous jury instructions on a criminal defendant’s principal trial theory when the defendant challenges the instructions for the first time on appeal. The latest decision is from the Fifth Circuit, in U.S. v. Fairley, says Andrew Goldsmith of Kellogg Hansen Todd Figel & Frederick PLLC.

  • California's Evolving Standard On Expert Opinion Evidence

    Peter Choate

    A California appeals court's recent decision in Apple v. Superior Court explicitly holds that the Sargon standard applies when a party seeks to admit expert opinion evidence. Practitioners should seek to preserve this issue for appeal and urge the California Supreme Court to resolve it, say Peter Choate and William Dance of Tucker Ellis LLP.

  • Series

    EPA In The Trump Era: Making Sense Of Waters Of The US

    Larry Jensen

    In one of his first official acts, President Donald Trump ordered the U.S. Environmental Protection Agency to rescind and replace the Obama administration's Clean Water Rule. Regardless of the outcome of Trump’s effort, the controversy over the meaning of the phrase “waters of the United States” is likely to continue for many years, says Larry Jensen, former EPA general counsel and shareholder at Brownstein Hyatt Farber Schreck LLP.

  • Massachusetts Focuses On The Elements Of Spoliation

    Alexander Zodikoff

    The Massachusetts Appeals Court recently held that a finding of spoliation requires both the negligent and intentional loss or destruction of evidence, and awareness at the time that the evidence could help resolve a dispute. This strict interpretation of the doctrine of spoliation follows a trend in Massachusetts litigation, says Alexander Zodikoff of Manion Gaynor & Manning LLP. 

  • Was Heir-Tracker Antitrust Indictment A Hair Too Late?

    Robert Connolly

    A Utah federal judge who dismissed the indictment against heir-locator Kemp & Associates as time-barred was grasping at straws to avoid application of the payments theory, say former federal prosecutors Robert Connolly and Karen Sharp.

  • How Emerging Sources Of ESI Will Impact Discovery

    Charles McGee

    Late last year, the Sedona Conference released the third edition of its principles addressing electronic document production, updated to account for innovations like Snapchat and Twitter. It may be necessary for these principles to be updated more often in order to keep pace with technology, says Charles McGee III of Murphy & McGonigle LLP.