Appellate

  • February 22, 2018

    Pa. Ruling May Spur More Class Suits Against In-State Cos.

    In the wake of a recent Pennsylvania Supreme Court finding that nonresidents can sue Pennsylvania businesses over out-of-state transactions under the state’s consumer protection statute, experts expect a rise in the number of national class actions targeting Keystone State companies, which will test the court’s expectation that other legal principles will ward off unjustified claims.

  • February 22, 2018

    Montana Forest Wildfire Project Gets 9th Circ.'s Blessing

    The Ninth Circuit on Thursday gave the go-ahead to the U.S. Forest Service’s plan to reduce the wildfire threat in Montana’s Gallatin National Forest, overruling environmentalists’ arguments that the project would imperil the threatened Canada lynx.

  • February 22, 2018

    TransCanada Gas Unit Vies For FERC Market Rates At DC Circ.

    Pipeline giant TransCanada Corp.’s U.S. natural gas storage unit urged a D.C. Circuit panel Thursday to allow it to charge market-based rates, asserting in oral arguments that the Federal Energy Regulatory Commission wrongly denied it the right to charge those rates while permitting others in the same market to do so.

  • February 22, 2018

    White House Counsel: Chevron Deference A Priority For Judges

    President Donald Trump has prioritized rolling back the "administrative state," White House Counsel Don McGahn said Thursday, and part of that is looking at potential judicial nominees' experience with government regulation and major guideposts like Chevron deference.

  • February 22, 2018

    6th Circ. Hands Union Win In Dues Checkoff Case

    The Sixth Circuit ruled Thursday that a United Food & Commercial Workers International Union local acted properly when it kept collecting union dues from two members who failed to follow proper procedures for rescinding the authorization they gave to have those dues deducted from their paychecks.

  • February 22, 2018

    Immigration Law Allows Trump's Travel Ban, High Court Told

    The Trump administration on Thursday defended its ban on travel to the U.S. by nationals of several predominantly Muslim countries, telling the U.S. Supreme Court that the president acted at the height of his powers under federal immigration law and the U.S. Constitution.

  • February 22, 2018

    Calif. Justices Take Up Actavis' Opioid Suit Coverage Bid

    California's highest court has agreed to review Actavis' challenge of a lower court's ruling that it isn't covered under a Travelers policy for lawsuits alleging its misleading marketing of painkillers has fueled the nation's opioid addiction problem and caused a spike in heroin use, according to a Wednesday docket entry.

  • February 22, 2018

    Ga. Court Says Doc’s Murder Trial Needn’t Halt Civil Suit

    A Georgia appeals court ruled Wednesday that a criminal homicide case against a doctor is not reason enough to delay a parallel civil case that accuses the doctor of causing a woman's death by overprescribing medications.

  • February 22, 2018

    DC Circ. Weighs ‘Perfectly Neutral’ EPA Reason In Bias Row

    A D.C. Circuit judge on Thursday signaled rough terrain ahead for a former Environmental Protection Agency manager who is accusing the EPA of age discrimination and retaliation, with the judge noting the agency has a “perfectly neutral” explanation for a reorganization the former manager alleges was retaliatory.

  • February 22, 2018

    Wash. Landowners Say Tribe Can't Escape Property Suit

    A Washington state couple urged the U.S. Supreme Court on Wednesday not to overturn a state court decision that the Upper Skagit Indian Tribe must face the couple's land ownership suit, saying that doing so would improperly expand the tribe's sovereign immunity at the expense of Washington's own sovereignty.

  • February 22, 2018

    US Airways Owes Worker For Bus Injury, Pa. Court Says

    A Pennsylvania appeals court issued a published decision Thursday allowing a US Airways flight attendant to receive workers' compensation benefits after she slipped while on a shuttle bus transporting her between a Philadelphia International Airport terminal and a city-owned employee parking lot.

  • February 22, 2018

    7th Circ. Wants US Input On Ill. Nuke Subsidies

    The Seventh Circuit on Wednesday asked the U.S. government to weigh in on whether Illinois' plan to subsidize nuclear power plants usurps federal authority over wholesale electricity markets, a sign that the appeals court is still struggling to decide the issue.

  • February 22, 2018

    NJ Trampoline Park Loses Bid To Arbitrate Injury Claims

    The New Jersey Appellate Division on Thursday denied a trampoline park's bid to force arbitration of claims that a boy was severely injured at the facility, finding that neither an agreement signed by his friend's mother nor a prior agreement signed by his mother were enforceable in the matter.

  • February 22, 2018

    Del. Gov. Skirting Ruling On Court Party Makeup, Suit Says

    The man who won a federal court decision in December against Delaware’s requirement for political party balance on its judicial bench appointments accused Gov. John Carney on Wednesday of ignoring the ruling with a recent notice about a vacancy.

  • February 21, 2018

    Warrantless Cellphone Searches Won't Fly, Pa. Top Court Says

    Pennsylvania's highest court on Wednesday struck down evidence obtained as a result of the warrantless search of a flip cellphone seized from a murder suspect, finding that a 2014 ruling by the U.S. Supreme Court confirmed the "exceedingly simple" rule that law enforcement needs to "get a warrant" if it wants to look through any cellphone. 

  • February 21, 2018

    Uncertainty Abounds After DC Circ. Slices EPA Ozone Regs

    The D.C. Circuit’s recent decision scrapping parts of a 2008 U.S. Environmental Protection Agency rule that outlined how geographic areas could meet 2008 ozone standards not only creates uncertainty for cities, counties and businesses, but could force the EPA to overhaul a pending rule meant to aid compliance with newer ozone standards. Here, experts identify three key takeaways from the appellate court’s ruling.

  • February 21, 2018

    Birth Defect Suit Against Motorla Revived By Ill. Panel

    An Illinois state appeals court on Tuesday revived a suit accusing Motorola Solutions Inc. of exposing workers in Arizona and Texas to toxic substances that purportedly caused their children’s birth defects and other health problems, saying the claims were properly alleged at this stage of the case.

  • February 21, 2018

    10th Circ. Backs Hess, Statoil Wins In Drilling Deals Row

    The Tenth Circuit on Wednesday affirmed the dismissal of a pair of energy companies' breach of contract and tort claims against units of Statoil ASA and Hess Corp. that sought hundreds of millions of dollars in damages over conflicting agreements to drill for oil and gas in North Dakota.

  • February 21, 2018

    11th Circ. Revives Car Auction Co. Equal Pay Suit

    A woman who claimed auto auction company Manheim Remarketing paid her less because of her gender had her suit against the company revived by the Eleventh Circuit on Wednesday, with the court saying the case was not clear-cut and that a jury may have taken her side.

  • February 21, 2018

    Fiber Optics Tech Is Getting Wrong Duties, Fed. Circ. Told

    ADC Telecommunications Inc. told the Federal Circuit on Wednesday that the U.S. Court of International Trade incorrectly upheld a U.S. Customs and Border Protection classification of fiber optic modules, saying the products had nothing to do with human vision and should have been classified under a duty-free designation.

Expert Analysis

  • 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.

  • When Title VII Gender And Sexual Orientation Claims Overlap

    Daniel Pasternak

    Until the U.S. Supreme Court agrees to take up the issue of Title VII and sexual orientation discrimination, employers should take note that decisions like the First Circuit’s recent ruling in Franchina v. Providence Fire Department demonstrate that the issues of sex and sexual orientation are intrinsically intertwined, says Daniel Pasternak of Squire Patton Boggs LLP.

  • Put The Brakes On Acceleration Bay Litigation Funder Ruling

    David Gallagher

    Last week, the District of Delaware raised eyebrows by ruling that documents provided to a litigation funder and its counsel in connection with their due diligence are categorically not attorney work product. Acceleration Bay v. Activision Blizzard seems to be a case of bad facts making bad law, says David Gallagher, investment manager and legal counsel for Bentham IMF.