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Appellate
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May 06, 2024
Fed. Circ. Urged Not To Limit Use Of Patents Apps At PTAB
The U.S. Patent and Trademark Office, Samsung, and tech industry groups have urged the Federal Circuit to reject an argument that patent applications can only be used to invalidate patents in inter partes reviews based on their publication date, saying the filing date is what counts.
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May 06, 2024
9th Circ. Hints Walmart Can't Avoid Jury In Disability Bias Suit
A Ninth Circuit panel indicated Monday that it doubted Walmart Inc. was being honest when it told a vision-impaired employee seeking to come back from a leave of absence that no jobs were available, with one judge suggesting a jury should decide if the retail giant lied to the worker.
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May 06, 2024
FCC Calls High Court Telecom Subsidy Challenge Premature
The Federal Communications Commission has asked the U.S. Supreme Court to forgo review in two constitutional challenges to the agency's Universal Services Fund brought by free-enterprise groups, arguing that the appeals were filed too early and are based on a speculative circuit split that hasn't formed yet.
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May 06, 2024
NJ Justices Erase Gov't Workplace Probe Confidentiality Rule
The New Jersey Supreme Court on Monday struck down part of a state statute that directs investigators to request, but not require, confidentiality in discrimination or harassment investigations involving state workers, ruling the provision still reached too far and chilled protected speech.
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May 06, 2024
Mass. Justices Wary Of Spiking Uber, Lyft Ballot Questions
Justices on Massachusetts' highest court appeared unlikely Monday to strike down ballot proposals to reinvent app-based drivers' relationships with Uber, Lyft and the like, commenting that the scattershot ideas for voters in March all carry the underlying theme of creating a carveout from the state's worker-friendly employee classification law.
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May 06, 2024
4th Circ. Clinches NBA Star Win In Legal Saga With Ex-Agent
NBA star forward Zion Williamson secured a Fourth Circuit victory on Monday in a prolonged legal battle with his would-be agent, with a unanimous panel ruling his contract with the Florida marketing agency was void under a North Carolina law governing student-athlete representation.
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May 06, 2024
DeSantis, Ousted Fla. Atty Clash Over Reinstatement Powers
Florida Gov. Ron DeSantis and ousted prosecutor Andrew Warren have offered dueling takes over whether federal courts have jurisdiction to reinstate suspended state officers in competing briefs filed with the Eleventh Circuit.
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May 06, 2024
Calif. Doctors Can't Escape Med Mal Atty's Defamation Suit
A California appeals court has said two California doctors cannot escape a defamation suit over an allegedly defamatory website they created about a malpractice attorney whom they'd had a fee dispute with, denying an anti-SLAPP motion because the language the lawyer identified in his amended complaint was not protected activity.
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May 06, 2024
Margolis Edelstein Wants Redo Of Malpractice Ruling In Del.
Margolis Edelstein wants the Delaware Supreme Court to reconsider its decision reviving an insurer's malpractice suit claiming its incompetence caused the insurer to have to settle a case for $1.2 million, and is asking the full court to rehear the matter.
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May 06, 2024
Ritz-Carlton Defeats Post-Hurricane Layoff Claims At 1st Circ.
The First Circuit has said a Puerto Rico federal judge was right to rule in favor of a Ritz-Carlton hotel in a suit by a proposed class of employees who claimed they were wrongfully laid off after the island was decimated by back-to-back hurricanes in 2017.
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May 06, 2024
3rd Circ. Won't Revive Ex-Pa. Agency Atty's Firing Suit
The Third Circuit on Monday declined to revive a former Pennsylvania Department of Community and Economic Development attorney's suit alleging his firing violated his 14th Amendment rights, reasoning that the lawyer failed to show how his termination constitutes a deprivation of property.
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May 06, 2024
New Jersey High Court Disbars Twice Suspended Atty
The New Jersey Supreme Court has disbarred a Morris County attorney, agreeing with a state disciplinary review board that said his failure to cooperate with their investigations and continued misconduct warrants a ban from practicing in the state.
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May 06, 2024
Catching Up With Delaware's Chancery Court
A record $100 million settlement, a fishy Facebook decision, a canceled Amazon delivery and an upended $7.3 billion sale dispute topped the news out of Delaware's Court of Chancery last week. There were also new cases involving Hess, Microsoft and the 2022 World Cup.
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May 06, 2024
Nothing 'Unusual' About Claims Appeals, Mich. Tells 6th Circ.
Michigan defended the appellate setup of its claims court in a Sixth Circuit brief Friday, pointing to federal circuit courts' en banc review procedure to argue it is not so extraordinary to ask judges to scrutinize their colleagues' work.
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May 06, 2024
Why The Wash. Supreme Court's Docket Has Been Shrinking
When the Washington State Supreme Court met last month, justices could have decided to set new case law in a dispute over contractual royalty payments or when county governments need to turn over public records. But they passed on those cases and 32 others, taking on just three, part of a decadelong trend that’s seen their annual opinion count fall by half.
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May 06, 2024
Texas Says EPA Methane Rule Would Burden Regulators
The Texas Commission on Environmental Quality's director of the Office of Air told the D.C. Circuit that the U.S. Environmental Protection Agency has grossly underestimated the cost of complying with its expanded methane emissions control requirements, and should therefore pause the rule's implementation.
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May 06, 2024
Full NC Court Asked To Review Panel's 'Double Odor' Pot Test
A man who pled guilty to cannabis-related charges after a traffic stop is asking for an en banc review of a North Carolina appeals panel's rejection of his argument that the evidence against him was unconstitutional.
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May 03, 2024
Ala. High Court Won't Rethink Decision On Frozen Embryos
The Alabama Supreme Court on Friday refused to revisit its February decision finding that frozen embryos count as children, a first-of-its-kind decision that has been received as potentially ruinous for in vitro fertilization services in the Yellowhammer State.
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May 03, 2024
Meta Asks 9th Circ. To Revisit Predominance In Ad Class Cert.
Meta Platforms Inc. on Friday asked the Ninth Circuit to take a fresh look at a split panel decision affirming certification of a damages class of potentially millions of advertisers who were allegedly deceived about Facebook's "potential reach" tool, taking issue with the panel majority's "sweeping" interpretation of the predominance requirement.
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May 03, 2024
10th Circ. Blasted For Warhol Reading In 'Tiger King' IP Suit
Filmmakers, authors and law professors have urged the Tenth Circuit to revisit its decision to revive part of a copyright complaint against Netflix for its popular "Tiger King" docuseries, arguing that an appeals panel misapplied the U.S. Supreme Court's landmark Warhol decision when it ruled against the streaming service.
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May 03, 2024
5th Circ. Stands By Keeping CFPB Late Fee Case In Texas
A Fifth Circuit panel will not reconsider its decision rejecting the cross-country transfer of a bank industry-backed challenge to the Consumer Financial Protection Bureau's $8 credit card late fee standard, denying the agency's bid to move the case back to Washington, D.C., from Texas.
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May 03, 2024
Calif. Appeals Court Calls Firm's Conduct 'Woefully Uncivil'
A California state appeals court has backed sanctions against The Vanderpool Law Firm in a dispute with Masimo Corp., finding that the firm had engaged in misconduct during discovery and noting that it was "woefully uncivil" in its emails with opposing counsel.
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May 03, 2024
9th Circ. Orders 2nd Look At Stay In PG&E Wildfire Suit
The Ninth Circuit on Friday told a lower court to reconsider its order staying claims PG&E investors brought against officers, directors and others over wildfire liability, saying more factors should have been considered before the stay was granted.
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May 03, 2024
6th Circ. Drops Bettors' Appeal Over Doped Derby Horse
Kentucky Derby gamblers who claimed they had winning bets after officials disqualified the race's lead horse cannot sue Churchill Downs or the horse's Hall of Fame trainer Bob Baffert, the Sixth Circuit ruled, saying courts can't "turn a losing wager into a winning one."
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May 03, 2024
Eolas Is Latest Patent Owner To Take Alice Loss To High Court
A patent licensing outfit run by a onetime computer lab director at the University of California, San Francisco, is the latest to go to the U.S. Supreme Court to complain about patent eligibility.
Expert Analysis
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Opinion
The SEC Is Engaging In Regulation By Destruction
The U.S. Securities and Exchange Commission's recent use of regulation by enforcement against digital assets indicates it's more interested in causing harm to crypto companies than providing guidance to the markets or protecting investors, says J.W. Verret at George Mason University.
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Former Minn. Chief Justice Instructs On Writing Better Briefs
Former Minnesota Supreme Court Chief Justice Lorie Gildea, now at Greenberg Traurig, offers strategies on writing more effective appellate briefs from her time on the bench.
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Studying NY, NJ Case Law On Employee Social Media Rights
While a New Jersey state appeals court has twice determined that an employee's termination by a private employer for social media posts is not prohibited, New York has yet to take a stand on the issue — so employers' decisions on such matters still need to be assessed on a case-by-case basis, say Julie Levinson Werner and Jessica Kriegsfeld at Lowenstein Sandler.
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A 5th Circ. Lesson On Preserving Indemnification Rights
The Fifth Circuit's recent decision in Raymond James & Associates v. Jalbert offers an important lesson for creditors and parties to indemnification agreements: If a debtor has indemnified a creditor, the creditor should consider participating in the bankruptcy case to avoid being deemed to have forfeited its indemnification rights, say Dania Slim and Alana Lyman at Pillsbury.
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ShapeShift Fine Epitomizes SEC's Crypto Policy, And Its Flaws
A recent U.S. Securities and Exchange Commission order imposing a fine on former cryptocurrency exchange ShapeShift for failing to register as a securities dealer showcases the SEC's regulation-by-enforcement approach, but the dissent by two commissioners raises valid concerns that the agency's embrace of ambiguity over clarity risks hampering the growth of the crypto economy, says Keith Blackman at Bracewell.
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2nd Circ. Adviser Liability Ruling May Shape SEC Enforcement
The Second Circuit’s recent decision in U.S. Securities and Exchange Commission v. Rashid, applying basic negligence principles to reverse a finding of investment adviser liability, provides a road map for future fraud enforcement proceedings, says Elisha Kobre at Bradley Arant.
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In Bribery Case, High Court's Past Is Probably Prologue
The U.S. Supreme Court will soon hear oral arguments in Snyder v. U.S. on the issue of whether federal law criminalizes gratuities that are not tied to an explicit quid pro quo, and precedent strongly indicates the court will limit an expansive reading of the bribery statute, say attorneys Sami Azhari and Don Davidson.
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Stay Interviews Are Key To Retaining Legal Talent
Even as the economy shifts and layoffs continue, law firms still want to retain their top attorneys, and so-called stay interviews — informal conversations with employees to identify potential issues before they lead to turnover — can be a crucial tool for improving retention and morale, say Tina Cohen Nicol and Kate Reder Sheikh at Major Lindsey.
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Direct Claims Ruling May Alter Gov't Ties To Software Firms
A recent Federal Circuit decision allowing a software developer to pursue legal action under the Contract Disputes Act could change the government's relationship with commercial software providers by permitting direct claims, even in third-party purchase situations, say Dan Ramish and Zach Prince at Haynes Boone.
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Payment Provision Lessons From NJ Construction Ruling
A New Jersey appellate court's decision in Bil-Jim v. Wyncrest, holding that an American Institute of Architects contract was not an installment contract, highlights both the complexities of statute of limitations calculations and the significant consequences that can arise from minor differences in contract language, say Mitchell Taraschi and Zac Brower at Connell Foley.
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The Fed. Circ. In February: A Reminder On Procedure Rule 28
Because the Federal Circuit does not often issue a sua sponte precedential order emphasizing an important rule of practice, it is useful to look at how the court applied the restrictions of appellate procedure Rule 28 in Promptu v. Comcast last month, and in cases that preceded it, say Jeremiah Helm and Sean Murray at Knobbe Martens.
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SC Ruling Reinforces All Sums Coverage Trend
A South Carolina state court's recent ruling in Covil v. Pennsylvania National is the latest in a series of decisions, dating back to the 2016 New York Court of Appeals ruling in Viking Pump, that reject insurers' pro rata allocation argument, further supporting that all sums coverage is required whenever a loss could be covered under a policy in any other year, say Raymond Mascia and Thomas Dupont at Anderson Kill.
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A Defense Strategy For Addressing Copyright Fee-Shifting
Permissive fee-shifting under Section 505 of the Copyright Act poses unique challenges for copyright defendants, carrying an outsize impact on the economic incentive structure in copyright litigation, but relying on a Federal Rule of Civil Procedure may offer a potential solution by allowing defendants to recover attorney fees, say Hugh Marbury and Molly Shaffer at Cozen O'Connor.
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Opinion
Neb. Justices Should Weigh IRC Terms In Dividend Tax Case
Nebraska’s highest court, which will hear oral arguments in Precision CastParts v. Department of Revenue on April 1, should recognize that the Internal Revenue Code provides key clues to defining “dividends received or deemed to be received,” and therefore limits Nebraska’s tax on foreign-sourced corporate income, says Joseph Schmidt at Ryan.
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Contract Disputes Recap: Facts Differ But Same Rules Apply
Zachary Jacobson and Sarah Barney at Seyfarth examine two decisions illustrating that reliance on a technicality may not save an otherwise untimely appeal, and that enforcement of commercial terms and conditions under a federal supply schedule contract may be possible.