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Appellate
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October 25, 2024
Gloves Come Off In Wash. High Court Race As Election Nears
A high-powered civil litigator vying for an open seat on the Washington State Supreme Court says his municipal judge opponents' expertise is primarily relegated to traffic tickets, as that judge decries the critique as legal snobbery symptomatic of a greater disconnect in the judiciary.
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October 25, 2024
State AGs Back Mich.'s Immunity From Enbridge Pipeline Suit
Nine states and the District of Columbia have told the Sixth Circuit they back Michigan state officials' arguments of sovereign immunity from a lawsuit Enbridge Energy LP filed over the state's revocation of an easement for a segment of the company's Line 5 pipeline in the Straits of Mackinac.
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October 25, 2024
SEC's Crypto Mining Case Belongs In 10th Circ., Court Hears
A Utah man accused of defrauding crypto mining investors out of $18 million is hoping for an opportunity to have his case heard before the Tenth Circuit, arguing that the mining equipment is not a security and that the U.S. Securities and Exchange Commission should be forced to drop the suit.
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October 25, 2024
2nd Circ. Says Man Can't Challenge Removal Over Atty Failure
The Second Circuit on Friday denied a man's bid to reopen removal proceedings based on his former attorney's failure to submit important documents, saying the man should have provided evidence supporting his claim of ineffective assistance of counsel earlier.
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October 25, 2024
Off The Bench: Toss-Up For Ohtani Ball, UFC Fighters' Payday
In this week's Off The Bench, the three claimants to a historic baseball now know how much is at stake for the winner, a long fight against wage suppression for mixed martial arts fighters is a step closer to ending, and WNBA players want a bigger piece of a growing revenue pie.
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October 25, 2024
Mass. Panel Flips Teacher's Tenure Denial Over Family Leave
Massachusetts' intermediate-level appeals court on Friday invalidated an arbitrator's denial of tenure to a teacher who took maternity leave during one of her first three years of teaching, ruling that the decision had wrongly penalized her for taking the protected time away from work.
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October 25, 2024
5th Circ. Says Immigration Board Defied Haitian's Due Process
The Fifth Circuit has revived a bid by a Haitian man with a history of mental illness for removal protection, saying the Board of Immigration Appeals violated his due process rights when it ordered unnecessary fact-finding, flouting its own regulations.
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October 25, 2024
9th Circ. Dubious Of Tesla Investors' Appeal Of $12B Trial Loss
Ninth Circuit judges appeared skeptical Friday of Tesla investors' argument that an erroneous trial instruction improperly led a jury to reject their $12 billion claim over Elon Musk's 2018 tweets that he had "funding secured" to take the electric car giant private.
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October 25, 2024
High Court Bar's Future: Mitchell Law's Jonathan F. Mitchell
The pantheon of U.S. solicitors general doesn't include many lawyers who've openly challenged the U.S. Supreme Court's authority or sought to undermine its landmark precedents. But there aren't many lawyers like Jonathan F. Mitchell, a crusading conservative who rescued former President Donald Trump's reelection run — and in the process positioned himself to become the government's top oral advocate.
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October 25, 2024
'Starting Point' Algorithm Enough To Fix Prices, DOJ Says
The Justice Department is using the first algorithmic price-fixing case to reach an appeals court to argue that just because an algorithm only set "starting points" doesn't make its use legal, in a Ninth Circuit amicus brief backing efforts to revive a room rate lawsuit against Las Vegas casino hotels.
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October 25, 2024
DC Circ. Won't Block EPA Emissions Rule For Steel Plants
A split D.C. Circuit panel has denied bids by U.S. Steel Corp. and Cardinal-Cliffs Inc. to hit pause on a U.S. Environmental Protection Agency rule setting emission standards for integrated iron and steel manufacturing facilities.
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October 25, 2024
Election Records Law Needs Update, Mich. Justice Says
The Michigan Supreme Court declined on Friday to revive criminal charges against an election worker who downloaded a copy of a voter list onto a personal thumb drive, prompting one justice to argue the law he was cleared of violating is out of touch in the digital age.
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October 25, 2024
Trump Co-Defendants Stuck In Ga. State Court, 11th Circ. Says
The Eleventh Circuit on Thursday rejected attempts from four co-defendants of former President Donald Trump to have their Georgia election interference cases moved from state to federal court.
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October 25, 2024
Ga. Atty Can't Beat Contempt Charge Over Trial Tardiness
The Georgia Court of Appeals on Friday rejected an attorney's argument that his due process rights were violated when he was found in contempt, finding that his tardiness to a trial — where the judge sent the jury home due to the absence of the lawyer and his client — was direct contempt.
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October 25, 2024
Congress Urged To Further Inspect FBI's Kavanaugh Probe
More than 50 civil rights groups have called on members of the U.S. Congress to further investigate the Trump White House's role in restricting the FBI's investigation into sexual misconduct allegations lodged against U.S. Supreme Court Justice Brett Kavanaugh during his 2018 confirmation process.
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October 25, 2024
9th Circ. Says Muldrow Reopens Asian Worker's Bias Suit
The Ninth Circuit revived a former supply chain manager's lawsuit alleging she was demoted because she's Asian American, saying a lower court should take another look at the case based on a recent U.S. Supreme Court decision clarifying the standard for workplace discrimination claims.
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October 25, 2024
Conn. Justices Will Hear Ex-Dem Chief's Ballot Fraud Appeal
The Connecticut Supreme Court has agreed to review a lower court's refusal to let former Stamford Democratic Party chair John Mallozzi find a handwriting expert to counter testimony during criminal fraud proceedings that he had forged signatures on phony ballots in a 2015 municipal election.
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October 25, 2024
The Candidates In Surprise Texas Criminal Court Matchups
Three sets of Republican and Democratic candidates are facing off next month to join the top criminal court in Texas after GOP incumbents suffered "unprecedented" primary losses amid a barrage of criticism over their earlier ruling in an election fraud case.
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October 24, 2024
Trump Again Argues Jack Smith's Appointment Was Illegal
Former President Donald Trump on Thursday said a D.C. federal court should throw out prosecutors' election interference case, repeating the argument he made in the classified documents case against him in Florida and contending that the appointment of special prosecutor Jack Smith was illegal.
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October 24, 2024
4th Circ. Backs Sanctioning Firm $1M For 'Defiance' Of Court
The Fourth Circuit on Thursday upheld a roughly $1 million sanction against the law firm of New York plaintiffs attorney Paul J. Napoli for its purportedly frivolous filings in a battle with another firm over asbestos litigation client referrals, saying the firm's misconduct was in "direct defiance" of a Maryland federal court's authority.
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October 24, 2024
Split Fed. Circ. Rejects Expert's 'Because I Said So' Testimony
A Delaware federal jury was wrong to find Comcast infringed a NexStep "digital butler" patent, and the trial judge properly overruled it, a split Federal Circuit panel said Thursday.
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October 24, 2024
2nd Circ. Largely OKs Gun Control Law After High Court Order
The Second Circuit on Thursday stood by its previous decision that largely vacated an order enjoining several of New York's gun restrictions, saying a recent U.S. Supreme Court ruling the high court told it to consider on remand had "little direct bearing" on its prior conclusions.
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October 24, 2024
Del. Co. Tells 3rd Circ. €4.2M Award Was Properly Denied
A Delaware investment company wants the Third Circuit to affirm a lower court ruling that refused to enforce an approximately €4.2 million arbitral award issued in a dispute over failed plans for a French medical equipment company to expand into Colombia.
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October 24, 2024
11th Circ. Seeks Bias Test Briefing In Fla. Trans Patients' Suit
The Eleventh Circuit has ordered Florida health officials and transgender individuals to provide additional briefing in the state's appeal to reverse a ruling blocking its ban on Medicaid coverage for gender-affirming care, directing the parties to present their positions on whether hostile discrimination analysis applies to certain classes of people.
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October 24, 2024
Colo. Justices Grill State On Biz Names, ID Theft Law
Colorado Supreme Court justices pressed state prosecutors Thursday on why a man's reversed conviction for identity theft should be reinstated, saying the identity theft law's use of "name" as a type of personal information seems to suggest the law refers only to people and not corporations.
Expert Analysis
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Enviro Policy Trends That Will Continue Beyond The Election
Come October in a presidential election year, the policy world feels like a winner-take-all scenario, with the outcome of the vote determining how or even whether we are regulated — but there are several key ongoing trends that will continue to drive environmental regulation regardless of the election results, say J. Michael Showalter and Samuel Rasche at ArentFox Schiff.
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2 High Court Securities Cases Could Clarify Pleading Rules
In granting certiorari in a pair of securities fraud cases against Facebook and Nvidia, respectively, the U.S. Supreme Court has signaled its intention to align interpretations of the heightened pleading standard under the Private Securities Litigation Reform Act amid its uneven application among the circuit courts, say attorneys at V&E.
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Opinion
Failure To Use Apportionment Has Distorted Patent Damages
Apportionment is the solution to the problem of inflated patent infringement damages, and courts should return to focusing on the smallest saleable unit as the starting point for apportionment analysis, say William Lee at WilmerHale and Mark Lemley at Stanford Law School.
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Series
Collecting Art Makes Me A Better Lawyer
The therapeutic aspects of appreciating and collecting art improve my legal practice by enhancing my observation skills, empathy, creativity and cultural awareness, says attorney Michael McCready.
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A Look At Recent Case Law On Expedited Judgment In NY
A number of recent New York state court decisions clarify and refine the contours surrounding Civil Practice Law and Rule 3213, providing landlords, lenders and other payees guidance on how to seek accelerated judgment in certain litigation, says Alexander Lycoyannis at Holland & Knight.
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Opinion
Supreme Court Must Halt For-Profit Climate Tort Proliferation
If the U.S. Supreme Court does not seize the opportunity presented by Honolulu v. Sunoco to reassert federal authority over interstate pollution regulation, the resulting frenzy of profit-driven environmental mass torts against energy companies will stunt American competitiveness and muddle climate policy, says Gale Norton at Liberty Energy.
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Litigation Inspiration: Honoring Your Learned Profession
About 30,000 people who took the bar exam in July will learn they passed this fall, marking a fitting time for all attorneys to remember that they are members in a specialty club of learned professionals — and the more they can keep this in mind, the more benefits they will see, says Bennett Rawicki at Hilgers Graben.
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Allergan Ruling Reinforces Value Of Patent Term Adjustments
The Federal Circuit’s recent ruling in Allergan v. MSN, which held that patent term adjustment awards for first-filed, first-issued patents cannot be stripped away by later-issuing child patents that expire earlier, means practitioners must consider the potential impact of any action that might reduce the adjustment amount, say attorneys at Cooley.
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Opinion
AI May Limit Key Learning Opportunities For Young Attorneys
The thing that’s so powerful about artificial intelligence is also what’s most scary about it — its ability to detect patterns may curtail young attorneys’ chance to practice the lower-level work of managing cases, preventing them from ever honing the pattern recognition skills that undergird creative lawyering, says Sarah Murray at Trialcraft.
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A Class Action Trend Tests Limit Of Courts' Equity Powers
A troubling trend has developed in federal class action litigation as some counsel and judges attempt to push injunctive relief classes under Rule 23(b)(2) of the Federal Rules of Civil Procedure beyond the traditional limits of federal courts' equitable powers, say attorneys at Jones Day.
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What's In The Cards For CFTC's Election Betting Case
A D.C. federal judge's Sept. 12 ruling, allowing KalshiEx to offer derivative contracts trading on the outcome of the U.S. congressional elections over objections from the U.S. Commodity Futures Trading Commission, could mark a watershed moment in the permissibility of election betting if upheld on appeal, say attorneys at BakerHostetler.
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Class Actions At The Circuit Courts: September Lessons
In this month's review of class action appeals, Mitchell Engel at Shook Hardy identifies practice tips from four recent class certification rulings involving denial of Medicare reimbursements, automobile insurance disputes, veterans' rights and automobile defects.
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IP Concerns For Manufacturing Semiconductors In Low Orbit
With space habitation companies working to launch private space stations in the near future, semiconductor manufacturers aiming to execute research and development in low or microgravity must consider the unique claim drafting and patent protection issues that will emerge, says Greg Miraglia at Quinn Emanuel.
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How NLRB Memo Balances Schools' Labor, Privacy Concerns
Natale DiNatale at Robinson & Cole highlights the recent National Labor Relations Board advice memorandum that aims to help colleges reconcile competing obligations under the National Labor Relations Act and the Family Educational Rights and Privacy Act as university students flock toward unionization.
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3 Coverage Tips As 2nd Circ. 'Swipes Left' On Tinder Claim
The Second Circuit's recent opinion in Match Group v. Beazley Underwriting, overturning Tinder's victory on its insurer's motion to dismiss a coverage action, reinforces three best practices policyholders purchasing claims-made coverage should adhere to in order to avoid late-notice defenses, say Lynda Bennett and Alexander Corson at Lowenstein Sandler.