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Appellate
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June 14, 2024
Senate Passes Bill For State, Local Judge Security
The Senate passed a bill unanimously to better protect state and local judges from threats amid "unacceptable attacks" on the judiciary.
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June 14, 2024
Chamblee Ryan Gets $1M Legal Malpractice Verdict Tossed
Chamblee Ryan PC has escaped a $1.1 million jury verdict in a malpractice suit brought by former client JBS Carriers Inc., with a Texas appeals court finding the food transportation giant failed to submit expert testimony showing the firm was negligent in failing to settle an underlying car crash lawsuit.
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June 14, 2024
Dunkin' Franchise Must Face Customer's Race Bias Suit
An intermediate appellate court in Massachusetts on Friday revived part of a lawsuit brought by a Black customer of a Dunkin' franchise who says an employee deliberately ignored his order for 15 minutes, then threw his food at him and called him a racist epithet.
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June 14, 2024
4 Big ERISA Decisions From The 1st Half Of 2024
A California federal court allowed a novel type of 401(k) mismanagement suit to advance to discovery, the Ninth Circuit elaborated on the pleading standard for mental health parity claims, and workers beat back an attempt to force their federal benefits suit into arbitration at the Second Circuit. Here, attorneys discuss four consequential ERISA decisions in 2024's first half.
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June 14, 2024
Full DC Circ. Won't Hear Foreign Disclosure Penalty Dispute
The D.C. Circuit declined to reconsider its ruling overturning a major U.S. Tax Court decision that had crimped the administrative collection arm of the Internal Revenue Service, letting stand a panel's restoration of the agency's power to more freely penalize undisclosed foreign corporations.
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June 14, 2024
Justices Endorse 2-Step Notification System For Removals
The U.S. Supreme Court on Friday said the federal government's practice of issuing multiple notices to migrants to advise them of removal proceedings is acceptable, ruling that in absentia removal orders can't be rescinded when the government fails to provide the location and time of immigration court hearings in a single document.
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June 14, 2024
Justices Overturn ATF Rule Banning Bump Stocks
The U.S. Supreme Court ruled Friday that the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives does not have the authority to ban bump stocks, finding that the firearm accessory can't be considered a machine gun for purposes of the National Firearms Act.
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June 14, 2024
No Retroactive Fix For US Trustee Fee Dispute, Justices Say
The U.S. Supreme Court sided with the U.S. Trustee's Office on Friday in finding that an amended fee structure implemented before a 2022 ruling that struck down a nonuniform system of payments was all that was needed to resolve the disparate treatment of debtors under the unconstitutional law.
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June 13, 2024
Ex-Duke Doc Wants Panel To Redo Disability Bias Ruling
A fired Duke University hospital doctor pressed a North Carolina state appeals court to reconsider not reviving the disability claims in his suit against the hospital, arguing that the case belongs before a jury.
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June 13, 2024
'Trump Too Small' Opinion Leaves Some Justices, Attys Vexed
In denying a bid to register "Trump Too Small" as a trademark for apparel, the U.S. Supreme Court unanimously concluded Thursday there was no free speech violation. But Justice Clarence Thomas' opinion leaning on tradition to justify prohibiting names as marks without an individual's consent left some justices and attorneys dissatisfied.
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June 13, 2024
Textualism Still Dominates Justices' Arbitration Decisions
The U.S. Supreme Court's approach to arbitration issues this past term has helped to exemplify a growing trend by the justices in favor of textualism and away from a less nuanced pro-arbitration mindset that had been favored in previous decades, experts say.
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June 13, 2024
Tribal Casino Tells 7th Circ. Ill. City Rigged Proposal Votes
A proposed tribal casino has asked the Seventh Circuit to undo a lower court ruling that found Waukegan, Ill., did not intentionally discriminate against it when the city chose three other competitors to operate casinos, saying the city ran a rigged review process.
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June 13, 2024
Justices Hand Abortion Advocates An Incomplete Win
The U.S. Supreme Court's rejection Thursday of a challenge to the abortion drug mifepristone will do little to safeguard long-term access to the medication while suggesting that it will be up to voters, not judges, to settle some of the nation's abortion debates, attorneys say.
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June 13, 2024
2nd Circ. Case Over NY Broadband Law Could Wrap Up
An agreement could soon be reached between internet providers and the New York attorney general's office that would avoid the need for further Second Circuit review of New York's controversial low-cost broadband law, court records show.
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June 13, 2024
Colo. News Station Must Face Claim Over Contractor Shooting
A Denver news station must face a man's vicarious liability claim over the actions of a plainclothes security guard who shot and killed a man during a police protest while working for the TV station, the Colorado Court of Appeals said Thursday.
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June 13, 2024
Youth Org. Not Covered For Ex-Worker's Claim, 6th Circ. Rules
A sexual misconduct exclusion bars a youth advocacy organization's bid for coverage of an ex-employee's claim that they were sexually harassed and assaulted by a supervisor, the Sixth Circuit affirmed Thursday, saying the organization's failure to raise certain arguments before the district court was fatal to its appeal.
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June 13, 2024
Thomas Targets Group Standing In Mifepristone Ruling
U.S. Supreme Court Justice Clarence Thomas joined his colleagues Thursday to unanimously uphold broad access to the abortion medication mifepristone for now, but he wrote separately to challenge a standing rule that often serves as the key to the courthouse doors for litigants of all varieties.
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June 13, 2024
Ending Flores Settlement Won't Endanger Children, Feds Say
The Biden administration said a recent regulation it contends warrants winding down the 27-year-old Flores settlement governing health and safety standards for minors in immigration detention can address concerns that human rights organizations raised about the continued use of unlicensed facilities.
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June 13, 2024
9th Circ. Doubts SPAC Investors Can Sue Lucid Over Merger
A Ninth Circuit panel appeared skeptical Thursday of investors' bid to revive a proposed class action alleging that Lucid duped them into buying stock in a special-purpose acquisition company ahead of the electric-vehicle maker's $11.75 billion merger, with two of three judges doubting that the SPAC investors have standing to sue.
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June 13, 2024
NJ Justices Create New Liability Rule For Property Owners
The New Jersey Supreme Court on Thursday voted 4-3 to craft a new rule stating that owners of commercial vacant lots have a duty to maintain the public sidewalks abutting the lots, and reinstated a woman's trip-and-fall injury suit.
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June 13, 2024
Wawa Beats Suit By Man Who Lost Leg In Crash Outside Store
A New Jersey appellate court handed a victory to Wawa on Thursday, ruling that the convenience store didn't own the area outside the store where a customer lost his leg in a car accident while jaywalking and thus was not liable.
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June 13, 2024
Full Fed. Circ. Rejects Rehearing Bids In Xifaxan Case
The Federal Circuit has shot down bids for rehearing filed by both sides in a case involving an April decision that prevents an Alvogen unit from releasing a generic version of Bausch Health's diarrhea and brain disorder drug Xifaxan until 2029.
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June 13, 2024
Aggie Pride Doesn't Create Duty In Donor Football Ticket Row
A state appeals court said Thursday that loyalty to Texas A&M is not enough to establish a fiduciary relationship between a university foundation and its donors, partially dismissing the donors' suit over seating changes in the wake of 2013 football stadium renovations.
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June 13, 2024
Subway Can't Nix Arb. Award To Family Of Murdered Worker
A Texas appellate panel on Wednesday declined to vacate an arbitration award to the family of a woman killed while working at Subway after rejecting Subway's argument the neutral arbitrator's Facebook posts complaining about State Farm and its attorneys are evidence of bias, finding neither are involved in the underlying case in any way.
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June 13, 2024
Chamber Asks DC Circ. To Reject EPA's PFAS Designation
Three business groups, spearheaded by the U.S. Chamber of Commerce, have gone to the D.C. Circuit to challenge the U.S. Environmental Protection Agency's recent decision to declare two "forever chemicals" to be hazardous materials under federal law.
Expert Analysis
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Series
Fishing Makes Me A Better Lawyer
Atop the list of ways fishing makes me a better lawyer is the relief it offers from the chronic stress of a demanding caseload, but it has also improved my listening skills and patience, and has served as an exceptional setting for building earnest relationships, says Steven DeGeorge at Robinson Bradshaw.
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5th Circ. Venue-Transfer Cases Highlight Mandamus Limits
Three ongoing cases filed within the Fifth Circuit highlight an odd procedural wrinkle that may let district courts defy an appellate writ: orders granting transfer to out-of-circuit districts, but parties opposing intercircuit transfer can work around this hurdle to effective appellate review, says Charles Fowler at McKool Smith.
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A Healthier Legal Industry Starts With Emotional Intelligence
The legal profession has long been plagued by high rates of mental health issues, in part due to attorneys’ early training and broader societal stereotypes — but developing one’s emotional intelligence is one way to foster positive change, collectively and individually, says attorney Esperanza Franco.
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PTAB Rulings Shed Light On Quantum Computing Patents
Recent Patent Trial and Appeal Board decisions on enablement rejections against quantum computing patent claims provide patent practitioners with valuable guidance on best practices for avoiding and overcoming enablement, say Fred Qiu and Alex Nie at Sheppard Mullin.
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To Make Your Legal Writing Clear, Emulate A Master Chef
To deliver clear and effective written advocacy, lawyers should follow the model of a fine dining chef — seasoning a foundation of pure facts with punchy descriptors, spicing it up with analogies, refining the recipe and trimming the fat — thus catering to a sophisticated audience of decision-makers, says Reuben Guttman at Guttman Buschner.
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Circuit Judge Writes An Opinion, AI Helps: What Now?
Last week's Eleventh Circuit opinion in Snell v. United Specialty Insurance, notable for a concurrence outlining the use of artificial intelligence to evaluate a term's common meaning, is hopefully the first step toward developing a coherent basis for the judiciary's generative AI use, says David Zaslowsky at Baker McKenzie.
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Fed. Circ. Rulings Crystallize Polymorph Patent 'Obviousness'
A comparison of two recent Federal Circuit obviousness challenge decisions regarding polymorph patents provides helpful insight into the assessment of screening arguments, particularly the issue of reasonable expectation of success, say Michael Green and John Molenda at Steptoe.
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DC Circ. Ruling Heightens HHS Contract Pharmacy Challenges
The D.C. Circuit's recent ruling that the Section 340B program does not bar manufacturers from restricting deliveries of discounted drugs to contract pharmacies represents a second strike against the U.S. Department of Health and Human Services' current contract pharmacy policy and raises the stakes surrounding an upcoming Seventh Circuit ruling on the same issue, say attorneys at Foley Hoag.
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Series
In The CFPB Playbook: Regulatory Aims Get High Court Assist
Newly emboldened after the U.S. Supreme Court last month found that the Consumer Financial Protection Bureau's funding is constitutional, the bureau has likely experienced a psychic boost, allowing its already robust enforcement agenda to continue expanding, say attorneys at Husch Blackwell.
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3 Infringement Defenses To Consider 10 Years Post-Nautilus
In the 10 years since the U.S. Supreme Court’s influential Nautilus ruling, the spirit of the “amenable to construction” test that the opinion rejected persists with many patent litigators and judges, so patent infringement defense counsel should always consider several key arguments, says John Vandenberg at Klarquist Sparkman.
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NY Ruling Paves A Court Payment Shortcut For More Creditors
A recent New York state appeals court ruling expands access to an expedited statutory procedure for court enforcement of promissory notes or unconditional guaranties, allowing more creditors to minimize the risk of potentially challenging litigation on threshold issues, says Alexander Levi at Friedman Kaplan.
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9th Circ. COVID 'Cure' Case Shows Perks Of Puffery Defense
The Ninth Circuit's March decision in a case surrounding a company's statements about a potential COVID-19 cure may encourage defendants to assert puffery defenses in securities fraud cases, particularly in those involving optimistic statements about breakthrough drugs that are still untested, say attorneys at Cahill Gordon.
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After Years Of Popularity, PAGA's Fate Is Up In The Air
The last two years held important victories for plaintiff-side employment attorneys in California Private Attorneys General Act litigation at the trial and appellate court levels, but this hotbed of activity will quickly lose steam if voters approve a ballot measure in November to enact the California Fair Pay and Employer Accountability Act, says Paul Sherman at Kabat Chapman.
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3 Recent Decisions To Note As Climate Litigation Heats Up
Three recent rulings on climate-related issues — from a New York federal court, a New York state court and an international tribunal, respectively — demonstrate both regulators' concern about climate change and the complexity of conflicting regulations in different jurisdictions, say J. Michael Showalter and Robert Middleton at ArentFox Schiff.
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Trending At The PTAB: Real Party In Interest And IPR
The Patent Trial and Appeal Board’s recent Luminex v. Signify decision, finding a complaint seeking indemnification may be treated as a public demand sufficient to establish a real party-in-interest, shows that the board continues to apply a broad and expansive definition to that term, say Yicong (Eve) Du and Yieyie Yang at Finnegan.