Appellate

  • December 5, 2017

    Pharma Co. Slams Patent Challenge Standing In Fed. Circ.

    Pharmaceuticals company Bristol-Myers Squibb Co. asked the Federal Circuit Tuesday to reject for lack of standing a competitor’s appeal of a U.S. Patent Trial and Appeal Board decision upholding its patent for a biologics product, saying the company cannot show injury because it has not yet developed a product that infringes the patent.

  • December 5, 2017

    11th Circ. Won't Review 'Mutability' In Dreadlocks Bias Case

    The Eleventh Circuit on Tuesday declined to reconsider as a full court a ruling that Title VII of the Civil Rights Act does not protect wearing dreadlocks because they are not an “immutable” characteristic of blackness, despite a lengthy dissent arguing a panel misread the U.S. Supreme Court’s landmark Price Waterhouse decision.

  • December 5, 2017

    Zappos Buyers Ask 9th Circ. To Revive Data Breach Suit

    A putative class of Zappos.com customers urged the Ninth Circuit on Tuesday to revive privacy claims over a 2012 data breach that affected 24 million shoppers, saying the online shoe retailer broke its promise to provide a secure purchasing site.

  • December 5, 2017

    Fed. Circ. Says PTAB Wrongly Upheld Patent In Netflix Case

    The Federal Circuit on Tuesday ruled that the Patent Trial and Appeal Board should have invalidated even more claims of a patent for switching a software session from one network-enabled device to another, in a win for challengers, including Netflix and Hulu.

  • December 5, 2017

    Ex-Dolphins Coach Asks 11th Circ. To Revive Paul Weiss Suit

    An attorney for former Miami Dolphins offensive line coach Jim Turner told an Eleventh Circuit panel Tuesday that attorney Ted Wells and his firm Paul Weiss Rifkind Wharton & Garrison LLP distorted facts in an investigative report that blamed him for fostering a culture of bullying and taunting a player who ended up leaving the team.

  • December 5, 2017

    Mass. City Not Biased Against Muslim Teacher, 1st Circ. Says

    A Muslim teacher failed to convince the First Circuit that her former Boston-area school district discriminated against her in the years leading up to her resignation, the court said Monday, finding that she hadn’t sufficiently countered evidence that her ex-employer had good reason to suspend her and deny her various accommodations.

  • December 5, 2017

    9th Circ. Tackles The Case Of The Bright Green Earplugs

    Moldex-Metric urged the Ninth Circuit on Tuesday to again revive allegations rival McKeon infringed its trademark shade of green for industrial-use earplugs, saying a lower court wrongly found the color was unprotectable because it served an essential function — allowing workers to see whether colleagues are wearing them.

  • December 5, 2017

    5th Circ. Restores Worker's Jury Win In Retaliation Suit

    A Fifth Circuit panel told a lower court Monday to reinstate a $107,100 jury verdict in favor of a former Jackson State University employee who said he was fired after testifying in support of a coworker's sexual harassment claims to the U.S. Equal Employment Opportunity Commission.

  • December 5, 2017

    6th Circ. Affirms Toss Of Doctor's Patient Data Suit

    The Sixth Circuit on Monday affirmed a lower court's decision to toss a doctor’s suit against the Michigan Board of Medicine and the state’s Department of Licensing and Regulatory Affairs on the basis that the agencies had sovereign immunity under the U.S. Constitution.

  • December 5, 2017

    Bovine Breeding Tech Co. Seeks To Revive Patent Claims

    A company specializing in sex selection technology for semen used in artificial insemination of animals on Tuesday sought to resurrect portions of patents for sorting and freezing bovine semen for transport, telling a Federal Circuit panel that the Patent Trial and Appeal Board improperly struck down challenged aspects of the patents as obvious.

  • December 5, 2017

    Calif. Town Telephone Tax Constitutional, Appeals Court Says

    A California state appeals court affirmed a Los Angeles County court decision Monday, confirming the constitutionality of the city of Norwalk’s 5.5 percent tax on various types of telephone services.

  • December 5, 2017

    Chubb Unit Tells 2nd Circ. $4.8M Wire Fraud Not Covered

    A Chubb Group unit on Monday asked the Second Circuit to find that it does not owe Medidata Solutions Inc. coverage for a $4.8 million loss it suffered when it was tricked into wiring money overseas, saying the fraudster’s use of email does not render it computer fraud.

  • December 5, 2017

    2nd Circ. Revives Alibaba Securities Class Action Over IPO

    The Second Circuit on Tuesday reinstated a putative securities class action against Alibaba Group Holding Ltd. and several executives after finding that a lower court judge improperly dismissed the suit tied to the company's $25 billion initial public offering.

  • December 5, 2017

    1st Circ. Issues Musical Beatles Opinion On Beetle Swarm

    The First Circuit found inspiration in The Beatles for a decision issued Monday in which it found the government didn’t have to get a property owner’s permission before removing 25 trees as part of an effort to stop an infestation of beetles of the nonmusical variety.

  • December 5, 2017

    Lighthouse Counts As US Soil, Cuban Migrants Tell 11th Circ.

    An attorney for a group of Cubans refused asylum after landing at an abandoned Florida Keys lighthouse urged an Eleventh Circuit panel Tuesday to reverse that decision, arguing the district judge should not have deferred to the U.S. Coast Guard on whether the lighthouse was considered U.S. soil.

  • December 5, 2017

    9th Circ. Refuses To Rethink Ex-InterMune CEO's Conviction

    A Ninth Circuit panel said Monday that it wouldn't rethink a 2009 wire fraud conviction of biotechnology company InterMune's former CEO, rejecting his argument that his attorneys’ performance at trial was constitutionally deficient.

  • December 5, 2017

    Customs’ Football-Field-Size Barrier Is Illegal, 9th Circ. Told

    A humanitarian aid nonprofit urged the Ninth Circuit on Tuesday to revive its suit accusing U.S. Customs and Border Protection of violating its free speech rights near an Arizona checkpoint, arguing that border patrol illegally blocked off a public area roughly the size of a football field to suppress protesters.

  • December 5, 2017

    Boss’ Actions ‘Vile’ Enough For $1.3M Award: Calif. Court

    A California state appeals court on Monday affirmed a $1.325 million verdict for a former self-storage clerk who alleged she was fired for getting pregnant, saying a jury fairly found her former boss acted with malice by obscuring that she was let go for filing a claim over reduced hours.

  • December 5, 2017

    Full Fed. Circ. Won't Review Kraft Cookie Patent Row

    The Federal Circuit declined on Tuesday to reconsider its decision invalidating a resealable cookie container that a Kraft unit accused Kellogg of infringing, standing by its affirmation of a lower court’s finding that Kraft’s evidence of commercial success and industry praise could not overcome Kellogg’s strong case that the patent is obvious.

  • December 5, 2017

    Conoco Asks Texas Justices To Apply Perpetuities Rule

    Counsel for ConocoPhillips Co. and Burlington Resources Oil & Gas Co. LP told the Texas Supreme Court in oral arguments Tuesday that a lower appellate court “invented a legal fiction” when deciding an Eagle Ford Shale lease dispute and created uncertainty regarding legal title to the land.

Expert Analysis

  • What 2nd Circ. Did And Didn't Tell Us About RICO's Reach

    Robert Reznick

    The Second Circuit recently became the first court of appeals to address the "domestic injury" requirement for a private claim under the Racketeer Influenced and Corrupt Organizations Act. The Bascuñán v. Elsaca analysis appears to depart from RJR Nabisco in ways that other courts may ultimately confront, says Robert Reznick of Orrick Herrington & Sutcliffe LLP.

  • Chatting With Ex-Fed. Circ. Chief About 101 And John Podesta

    Eli Mazour

    Shortly after I interviewed him last year, former Federal Circuit Chief Judge Randall Rader publicly expressed interest in becoming director of the U.S. Patent and Trademark Office. Although he did not ultimately get chosen for the position, the interview provides insights into how the Trump administration can take the patent system in a new direction, says Eli Mazour of Harrity & Harrity LLP.

  • Getting Real About Artificial Intelligence At Law Firms

    Mark Williamson

    Artificial intelligence needs to be legally defensible in order to be useful to law firms. There are requirements for making this happen, says Mark Williamson, co-founder and chief technology officer of Hanzo Archives Ltd.

  • Perception Vs. Reality At Trial

    Martha Luring

    The long litigation life cycle for large, complex civil lawsuits provides ample time for clients and counsel to form strong opinions — often negative when based on adversarial exchanges — about the opposing trial team, their witnesses and their experts. Martha Luring of Salmons Consulting shares some common perceptions not always shared by jurors.

  • Copyright Registration Debate May Head To High Court

    Alexander Kaplan

    The U.S. Supreme Court has been asked to reverse a recent Eleventh Circuit decision and settle a disagreement over the copyright registration requirement for lawsuits alleging infringement. While circuit splits are relatively rare in copyright law, this divide is deepening, says Alexander Kaplan of Proskauer Rose LLP.

  • Ignore Broader Claim Constructions At Your Own Risk

    Raghav Bajaj

    The Federal Circuit's recent decision in Owens Corning v. Fast Felt — reversing the Patent Trial and Appeal Board’s final written decision — should serve as a reminder to practitioners that claim construction is reviewed de novo at the Federal Circuit, says Raghav Bajaj of Haynes and Boone LLP.

  • A New Approach To Climate Analysis Under NEPA?

    Avi Garbow

    The D.C. Circuit's recent decision in Sierra Club v. Federal Energy Regulatory Commission, and FERC’s response, point to the National Environmental Policy Act as possibly the next legal battleground over how federal agencies consider climate change, say attorneys with Gibson Dunn & Crutcher LLP.

  • Proportionality, Not Perfection, Is What Matters

    John Rosenthal

    A few jurists and commentators have recently caused a stir in the e-discovery community by arguing that litigants should avoid using keyword searches to filter or cull a document population before using predictive coding. This “no-cull” rationale undermines the principle of proportionality at the heart of the recent changes to Federal Rule 26, say John Rosenthal and Jason Moore of Winston & Strawn LLP.

  • High Court Gets Ready To Weigh Privacy Vs. Public Safety

    Bob Anderson

    On Nov. 29, the U.S. Supreme Court will hear arguments in Carpenter v. United States — a case that could dramatically affect the future of surveillance, potentially requiring law enforcement to secure a warrant each time it seeks cell tower data and similar types of metadata, says Bob Anderson, leader of Navigant Consulting Inc.'s information security practice.

  • Florida Amendment 7 Objections Are On Life Support

    Corey Lapin

    Although the citizens of Florida voted to amend the state's constitution in 2004 to allow nearly unfettered access to records of “adverse medical incidents,” defendants have continued to use new and refined theories in response to Amendment 7 discovery requests. The recent ruling in Edwards v. Thomas may put an end to many of these tactics, says Cory Lapin of Manion Gaynor & Manning LLP.