Appellate

  • December 13, 2017

    9th Circ. Won't Revive Olympic Swimmer's Defamation Suit

    Hungarian Olympic gold medal swimmer Katinka Hosszu lost a bid to revive a defamation lawsuit against a commentator she alleged had falsely accused her of using performance-enhancing drugs when the Ninth Circuit affirmed the dismissal of the suit on Wednesday.

  • December 13, 2017

    Tribes Seek Full 9th Circ. Rethink Of Fishing Rights Ruling

    The Jamestown S’Klallam Tribe and the Port Gamble S’Klallam Tribe urged the Ninth Circuit on Tuesday to rethink a panel decision that reversed a lower court’s ruling that held that the Lummi Nation lacked authority over disputed waters near Seattle.

  • December 13, 2017

    Medi-Cal Is Owed Piece Of Med Mal Deal, Calif. Court Says

    A California appellate court on Wednesday largely affirmed a trial judge’s finding that California’s Medicaid program is owed a portion of a patient’s $150,000 medical malpractice settlement, rejecting the man's arguments that his case was actually worth $3 million and therefore the state’s calculations were wrong.

  • December 13, 2017

    Atty Need Not Wait For IRS In Malpractice Case: Texas Panel

    A Texas attorney does not need to wait until the IRS assesses the taxability of a financial transaction before defending himself against a malpractice claim that carries a potential liability of about $1.6 million, a Texas appellate panel ruled Tuesday.

  • December 13, 2017

    Fed. Circ. Affirms Sony PTAB Win In PlayStation Patent Case

    The Federal Circuit on Wednesday upheld a Patent Trial and Appeal Board decision invalidating part of a patent for a computer network that Sony Interactive Entertainment America LLC challenged after its PlayStation gaming system was accused of infringement.

  • December 13, 2017

    9th Circ. Affirms Samsung Win In Patent Antitrust Suit

    The Ninth Circuit affirmed a decision to toss a patent-holding company’s antitrust suit accusing Samsung of conspiring with others to avoid licensing its smartphone patent, rejecting the patent holder’s arguments it had been unlawfully denied royalties.

  • December 13, 2017

    DC Circ. Gives Enviros 2nd Shot To Fight $2.2B Pipeline

    The Sierra Club will be allowed to refile a suit against the Federal Energy Regulatory Commission aiming to stall construction on the $2.2 billion Nexus pipeline after the nonprofit had to pull its initial petition, the D.C. Circuit said Wednesday.

  • December 13, 2017

    MVP: Orrick's Josh Rosenkranz

    Orrick Herrington & Sutcliffe LLP's E. Joshua Rosenkranz notched appellate victories for clients this year that included unanimous U.S. Supreme Court wins in a case over whether sheriff's officers used excessive force and a dispute concerning Fannie Mae’s ability to move suits to federal court, earning him a spot as one of Law360’s 2017 Appellate MVPs.

  • December 12, 2017

    5th Circ. Says CFAA Covers IT Worker's Electronic Sabotage

    The Fifth Circuit on Monday upheld the conviction of a former information technology manager for violating the Computer Fraud and Abuse Act by engaging in an electronic sabotage campaign against his then-employer, rejecting his argument that his conduct fell outside the statute because his job gave him the authority to access and "damage" the company's computer system.

  • December 12, 2017

    On Appeal In NY, Libel Suit Over Trump Tweets Fails Again

    A Republican political strategist lost her $4 million defamation suit against President Donald Trump on appeal in New York state court Tuesday, as a panel ruled Trump’s tweets saying she “begged” for a job were statements of opinion.

  • December 12, 2017

    RI Justices Say Clinic's Med Mal Deal Covers Nurses

    The Rhode Island Supreme Court has affirmed the dismissal of a suit accusing two nurses of medical negligence in connection with a patient's injuries, finding that under state law, a previous settlement with the nurses' health clinic employer shielded its "agents" from liability.

  • December 12, 2017

    Shipping Co. Battles Qualcomm's $1.8M Fees Win In Fed. Circ.

    R&L Carriers argued to the Federal Circuit in an opening brief Monday that an Ohio federal court abused its discretion by awarding Qualcomm $1.8 million in attorneys’ fees in the patent infringement case R&L brought against the company after finding the case is exceptional under Octane Fitness.

  • December 12, 2017

    9th Circ. Tackles Prior Salary Rule In Equal Pay Battle

    An en banc Ninth Circuit panel on Tuesday appeared open to reconsidering its 32-year-old ruling that an employer is protected from Equal Pay Act claims if it bases a new hire’s pay entirely on her prior salary, but several judges seemed torn about what rule should replace it.

  • December 12, 2017

    7th Circ. Tosses Ex-Morgan Stanley Worker’s Sex Bias Suit

    The Seventh Circuit on Monday upheld a lower court’s decision tossing litigation accusing a Morgan Stanley unit of firing an employee because of her sex and allowing coworkers to mistreat her, concluding that her discrimination claim is speculative and she didn’t sufficiently show a hostile work environment.

  • December 12, 2017

    NJ Atty Suspended After 'Brazen Deception' Toward Tribunals

    The state's highest court has suspended an attorney from practicing law in New Jersey for three years over a series of ethics violations that include lying to disciplinary authorities and a federal bankruptcy court and abusing his attorney trust account to avoid creditors.

  • December 12, 2017

    11th Circ. Affirms Patient Recruiter Conviction In $2M Fraud

    The Eleventh Circuit on Tuesday upheld the conviction of the owner of a Miami-area consulting and staffing company who was sentenced to five years in prison for his role in a $2.3 million Medicare fraud scheme that saw him refer patients to home health care agencies in exchange for kickbacks.

  • December 12, 2017

    NY Appeals Court Won't Revive Dental Malpractice Suit

    A New York appellate panel on Tuesday affirmed the dismissal of a suit accusing a dentist of botching a woman's root canals, saying the continuous treatment doctrine does not apply to the otherwise untimely suit.

  • December 12, 2017

    Calif. Surrogacy Agency Not Covered For Negligence Suit

    Admiral Insurance Co. need not defend a surrogacy agency in a negligence suit brought by former clients whose surrogate-born daughter developed a rare form of eye cancer, as the agency failed to disclose the claim on its policy application, according to a California appellate opinion filed Tuesday.

  • December 12, 2017

    Amgen Whistleblower Was Original Source, 2nd Circ. Told

    An attorney for a whistleblower told the Second Circuit Tuesday that his client was an “original source” under the False Claims Act, because he showed Amgen Inc. knew it falsely promoted quality of life benefits for its anemia biologic Epogen.

  • December 12, 2017

    Investors In PowerSecure Stock Suit Out Of Tries At 4th Circ.

    The full Fourth Circuit on Tuesday summarily rejected an investor’s bid to reconsider its decision not to resuscitate a securities fraud case against PowerSecure International Inc. and its CEO, leaving shareholders who blamed the company when its stock price tanked with little recourse.

Expert Analysis

  • Considering Alternatives To Reverse Bad Faith Claims

    Paul Ferland

    The relatively few courts to have considered the question of common law "reverse bad faith" have ruled against recognizing this action. However, an insurer may have a few arrows in its quiver to use when forced to defend against a fraudulent claim or an insured's filing of a frivolous bad faith action, says Paul Ferland of Foran Glennon Palandech Ponzi & Rudloff PC.

  • Palin V. NY Times: The Case Of The 'Unusual' Iqbal Hearing

    David McTaggart

    Before dismissing the Palin v. New York Times defamation lawsuit, a New York federal judge sought context for the complaint by calling for an op-ed author’s testimony in what appears to be the first-ever Iqbal hearing. If upheld on appeal, this has the potential to transform Rule 12(b)(6) motion practice, in defamation pleadings and beyond, says David McTaggart of Duane Morris LLP.

  • Mastermine, Mixed Claims And Ways To Avoid Indefiniteness

    Joseph Loy

    The Federal Circuit recently explored its "mixed claim" precedent in Mastermine v. Microsoft. The overarching lesson from these decisions is that system claims that include limitations defining a method step, rather than a functional capability of the system, may be susceptible to definiteness challenges, say Joseph Loy and Justin Bova of Kirkland & Ellis LLP.

  • What To Look For In Cyan V. Beaver County Oral Arguments

    William O'Brien

    On Tuesday, the U.S. Supreme Court will hear oral arguments in Cyan v. Beaver County Employees Retirement Fund. If the justices are sympathetic to the views of the Office of the Solicitor General, which filed an amicus brief earlier this year, it could signal an end to the epidemic of state court forum shopping in Securities Act class actions, says Skadden counsel William O'Brien.

  • Amicus Arguments For And Against Inter Partes Review

    Thomas King

    In Oil States v. Greene’s — set for oral argument on Monday — more than 50 amicus briefs have been filed with the U.S. Supreme Court, representing a substantial share of the U.S. GDP. The issues presented are weighty, including concerns regarding separation of powers and the limits of the administrative state, the impact of inter partes reviews on the patent system, and the application of originalism to 18th century patent practice... (continued)

  • NJ Consumer Contract Act Questions May Soon Get Answers

    Loly Tor

    The New Jersey Supreme Court recently ruled that certain claims under the state's Truth-in-Consumer Contract, Warranty and Notice Act could not be certified. But the court left other TCCWNA issues to be decided another day. Its forthcoming decision in Spade v. Select Comfort Corp. may provide answers to those remaining questions, say attorneys with K&L Gates LLP.

  • Does Your D&O Policy Really Cover Gov't Investigations?

    Lilit Asadourian

    Many directors and officers insurance policies purport to insure the fees and costs companies incur in responding to government investigations. However, a recent Tenth Circuit decision in MusclePharm v. Liberty Insurance Underwriters calls into question the scope of such coverage, say attorneys with Reed Smith LLP.

  • Opioid Insurance Litigation Is Mounting With Mixed Results

    Scott Seaman

    With suits pending across the country against manufacturers, distributors, pharmacies and others, we are currently in the early stages of the opioid insurance coverage war. Decisions so far primarily address accident and fortuity issues, application of product exclusions and whether claims involve damages "because of" or "for" bodily injury, says Scott Seaman of Hinshaw & Culbertson LLP.

  • 6 Months After TC Heartland, Adjusting To A New Landscape

    Nathan Speed

    The U.S. Supreme Court’s May 22, 2017, decision in TC Heartland, which overturned decades of accepted practice on how to evaluate the proper venue for patent litigation, has been lauded by some as ushering in a new era in patent litigation. Others — including some federal judges who have been applying TC Heartland — have found the decision to be much less significant, say Nathan Speed and Stuart Duncan Smith of Wolf Greenfield & Sacks PC.

  • Proving Ratification Of A Supervisor's Retaliatory Motive

    John Calhoun

    When are employers themselves legally liable for acting on a supervisor’s illegally motivated recommendations? Recently, the First Circuit, in Saunders v. Town of Hull, offered much-needed clarification about when a government entity runs afoul of the law in this way, says John Calhoun of Choate Hall & Stewart LLP.