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Appellate

  • September 18, 2018

    9th Circ. Says DOL Owed Deference On Tip Credit Guidance

    The Ninth Circuit gave a green light Tuesday to servers and bartenders suing restaurants including IHOP and P.F. Chang’s for allegedly underpaying them, ruling en banc that courts should defer to Obama-era tip credit guidance from the U.S. Department of Labor and ending a split with the Eighth Circuit.

  • September 18, 2018

    Labor Union Says Lost Wages Not Taxable Under Railroad Law

    A labor union and an association of plaintiffs’ attorneys has urged the U.S. Supreme Court to find that wage loss awards should not be taxable under a railroad retirement statute and argued that the railroad company pushing for them to be taxable had an ulterior motive, saying railroads could use the tax to reduce wage loss awards that result from future injuries.

  • September 18, 2018

    4th Circ. Opinion Curtails Reach Of Clean Water Act

    A recent Fourth Circuit opinion that Dominion Energy Inc.'s coal ash settling ponds aren't considered a "point source" of pollution under the Clean Water Act limits environmental groups in bringing citizen suits to control pollution from similar ponds, experts say.

  • September 18, 2018

    Firm Must Face Defamation Suit Over Conference Remarks

    In a precedential opinion Tuesday, the Ninth Circuit clarified its guidelines for determining jurisdiction and ruled that an aircraft company could bring suit against a Washington state law firm in Nevada over allegedly false statements one of its attorneys made at a conference in Las Vegas.

  • September 18, 2018

    Christie Critic Seeks To Revive GWB Scandal Complaint

    Counsel for an activist urged a New Jersey state appellate panel Tuesday to revive his criminal complaint accusing former Gov. Chris Christie of official misconduct over an alleged scheme to reduce local access lanes to the George Washington Bridge for political revenge, saying the prosecutors who dismissed the case had a conflict of interest.

  • September 18, 2018

    FWS Asks Justices To Uphold Decision To End Otter Program

    The federal government has asked the U.S. Supreme Court not to take a test of the Chevron deference doctrine in a case brought by California commercial fishing groups arguing the U.S. Fish and Wildlife Service went beyond its authority in deciding to shutter an experimental program for threatened sea otters.

  • September 18, 2018

    Trump's Military 'Transgender Ban' Will Stay Blocked

    A California federal judge on Tuesday refused to dissolve an injunction blocking the federal government’s military “transgender ban” from going into effect, ruling a revision to the policy was not meaningfully different from the initial outright ban.

  • September 18, 2018

    Texas Judge Skeptical Of Bid To Skirt Noncompete Arbitration

    A Texas appellate judge on Tuesday said during oral argument the lawyer for a former insurance finance employee had “some explaining to do,” questioning the employee’s argument her bid to void a noncompete agreement doesn’t belong in arbitration.

  • September 18, 2018

    Preemption Lines Blurred In 9th Circ. Hazmat Fee Ruling

    The Ninth Circuit’s recent decision knocking down California's new fee on rail cars transporting hazardous materials but leaving the door open to such a levy if it were "fair" raises new questions on the breadth of federal preemption concerning railroad rates and services, experts say.

  • September 18, 2018

    7th Circ. Has Chance To Cut Off 'Mootness Fee' Merger Cases

    Against a backdrop of near-constant shareholder litigation challenging mergers, the Seventh Circuit is the first federal circuit that’s been asked to stop a burgeoning litigation strategy among plaintiffs attorneys that some view as extortion of the merging companies and their shareholders.

  • September 18, 2018

    NextEra Wants 3rd Circ. To Revisit $275M EFH Breakup Fee

    NextEra, the once-proposed buyer of the assets of Energy Future Holdings Corp., told a Delaware bankruptcy judge Tuesday that it intends to seek a rehearing before the Third Circuit Court of Appeal on its right to a $275 million breakup fee after a three-judge panel denied its appeal last week.

  • September 18, 2018

    Parents’ Suit Over Child Born With Cystic Fibrosis Revived

    A North Carolina appeals court has revived a suit over the birth of a child with cystic fibrosis following a doctor’s notification to the mother that she was not at risk of having children with CF, saying Tuesday that because of the “continuing course of treatment” of the mother, time limits for suing were extended.

  • September 18, 2018

    Tribe Says Immunity Waiver Doesn't OK Attys' Fees

    The Coyote Valley band of Pomo Indians told a California appellate court on Tuesday that its prior ruling finding that the tribe waived its sovereign immunity in agreements with a construction contractor was wrongfully applied to an attorneys' fees bid, arguing that limiting the scope of immunity waivers was "a bedrock principle of Indian law."

  • September 18, 2018

    6th Circ. Denies Bid To Duck Removal Based On Lousy Lawyer

    The Sixth Circuit on Tuesday rejected a Lebanese native’s bid to avoid deportation based on his contention that a supposedly inadequate lawyer he hired effectively caused a violation of his due process rights, as the U.S. Constitution does not guarantee legal representation for foreigners in immigration proceedings.

  • September 18, 2018

    DC Circ. Sides With Copyright Board In SoundExchange Suit

    The D.C. Circuit on Tuesday refused to alter a ruling by the Copyright Royalty Board that set how much streaming services like Pandora Radio must pay for music until 2020, rejecting the argument that the board had used improper benchmarks from the private market.

  • September 18, 2018

    Space Tourism Suit Doesn't Belong Here, Texas Court Affirms

    A Texas appellate court on Tuesday upheld dismissal of a $49 million fraud lawsuit against a Houston attorney by a Japanese billionaire who alleged that the attorney duped him into investing in a space tourism project, holding that an agreement between them mandates that disputes be litigated in the Isle of Man.

  • September 18, 2018

    Tribal Co. Tells Justices Treaty Blocks Wash. Fuel Tax

    A Yakama Nation company urged the U.S. Supreme Court to uphold a ruling that it isn't subject to a Washington state fuel tax, saying that there is no way of looking at the tax on importing fuel that would allow the state to bypass the tribe's treaty rights.

  • September 18, 2018

    Fed. Circ. Ruling Takes 'Blocking Patents' To New Places

    The Federal Circuit’s recent ruling invalidating patents on Acorda Therapeutics Inc.’s multiple sclerosis drug Ampyra could expand the impact of so-called blocking patents and may make it easier to show an invention is obvious, attorneys say.

  • September 18, 2018

    HFC Rule Must Suffer Same Fate As Precursor, DC Circ. Hears

    The D.C. Circuit should nix a 2016 U.S. Environmental Protection Agency rule that banned the use of hydrofluorocarbons in certain circumstances on the same grounds as it invalidated the agency's 2015 rule limiting HFC use, a pair of chemical companies told the appeals court Monday.

  • September 18, 2018

    Former US Secretaries Back IFC Immunity In High Court Case

    Weighing in on a case brought by a group of Indian nationals over alleged environmental damage from a power plant project, a group of former U.S. secretaries of state and of the Treasury, including John Kerry, has urged the U.S. Supreme Court to continue allowing the International Finance Corp. to be immune from suits, arguing that multilateral development banks are fundamentally different from sovereign states.

Expert Analysis

  • Why Lead Paint Litigation May Go To The Supreme Court

    Catherine Connors

    The U.S. Supreme Court has been asked to review ConAgra Grocery Products Co. and NL Industries v. People of California, a case that concerns whether companies that manufactured lead paint long ago can still be held liable for creating a public nuisance — and there's a decent chance cert will be granted, says Catherine Connors of Pierce Atwood LLP.

  • Opinion

    Open The Federal Courthouses

    David Oscar Markus

    Forget about cameras, reporters in the Manafort trial were not even permitted in the courtroom with their phones, tablets or computers. That meant no live reporting on Twitter and no emails to the newsrooms with updates. In a world focused on information and news as it happens, this is unacceptable, says trial attorney David Oscar Markus.

  • Assessing 'Concreteness' Under Spokeo In Northern Illinois

    Alex Egbert

    The U.S. Supreme Court's Spokeo decision left lower courts to flesh out history's and Congress' “important roles” when developing a workable legal standard for deciding whether an intangible injury is sufficiently “concrete.” Not surprisingly, the Northern District of Illinois “concreteness” determinations relying on Congress’ role tend to be ad hoc, say Alex Egbert and Tony Hopp of Steptoe & Johnson LLP.

  • 7th Circ. Focuses On Impossibility Preemption In Dolin V. GSK

    William Essig

    The Seventh Circuit’s recent opinion in Dolin v. GlaxoSmithKline largely focused on GSK's argument that federal law preempted any suicidality warning requested by the plaintiff, and notably did not address innovator liability issues relating to Illinois law, says William Essig of Drinker Biddle & Reath LLP.

  • Opinion

    Incorporating Docs By Reference: New 9th Circ. Law Is Flawed

    Brian Sutherland

    In Khoja v. Orexigen Therapeutics, the Ninth Circuit recently concluded that it needed to address “overuse” of documents incorporated by reference in securities cases. But the cure may be worse than the disease, say Brian Sutherland and James Martin of Reed Smith LLP.

  • Standard-Setting Participation Can Affect Patent Enforceability

    Jim Burger

    The Federal Circuit's decision in Core Wireless v. Apple shows that failing to read the fine print on membership obligations to standards-setting bodies can lead to consequences for patents held by companies or acquired from other standards participants, say Jim Burger and Michael Parks of Thompson Coburn LLP.

  • Series

    Winner's Playbook: Behind The Scenes Of China Ag V. Resh

    Seth Aronson

    Earlier this year, the U.S. Supreme Court ruled unanimously in China Agritech v. Resh that statutes of limitations cannot be tolled for subsequent class actions. Here, members of the O'Melveny & Myers LLP team that defended China Agritech describe how an otherwise routine securities case turned into a far-reaching check on serial class actions.

  • Policing Bad Claims In Consolidated Litigation: Part 2

    Danielle Bagwell

    While conducting a pre-suit investigation sufficient to file a lawsuit may seem like a perfunctory enterprise, courts appear increasingly willing to affirm the importance of complying with this requirement — and this issue is particularly ripe in consolidated and multidistrict litigation, say Danielle Bagwell and Anne Gruner of Duane Morris LLP.

  • Fed. Circ. Clarifies Enablement Requirement In LED Case

    Scott Bornstein

    Last month, the Federal Circuit issued a potentially far-reaching opinion on the application of enablement. The decision in Boston University v. Everlight provides guidance for patentees and patent litigants when initially filing their patent application and later during litigation, say Scott Bornstein and Jonathan Wise of Greenberg Traurig LLP.

  • Clarity On Overlapping Background Check Laws In Calif.

    Timothy St. George

    On Monday, in Connor v. First Student, the California Supreme Court found the state’s Investigative Consumer Reporting Agencies Act was not unconstitutionally vague as applied to employer background checks, despite overlap with the Consumer Credit Reporting Agencies Act. As a result, consumer reporting agencies should carefully review their products to assure compliance, say attorneys with Troutman Sanders LLP.