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Appellate
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April 25, 2024
Justices Skeptical Of Trump's Absolute Immunity Bid
A majority of the U.S. Supreme Court appeared open Thursday to the idea of limited immunity for former presidents related to the office's core constitutional powers, but divisions emerged among the justices over how to determine when acts outside of that narrow category are potentially subject to criminal prosecution.
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April 25, 2024
Weinstein May Be Retried After NY Court Overturns Conviction
Harvey Weinstein seems poised to go to trial again in New York and testify in his own defense after the state's highest court overturned the movie mogul's rape conviction Thursday in a contentious, split opinion that found his first jury proceeding was unfair.
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April 24, 2024
Whole Foods May Have Retaliated In BLM Case, 1st Circ. Says
Whole Foods hasn't yet proven that its firing of a worker who wore a Black Lives Matter mask to work wasn't retaliatory, the First Circuit said in an opinion unsealed Wednesday, ruling that there is a "genuine dispute" as to whether she was terminated for protected conduct.
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April 24, 2024
High Court's Gender Divide Palpable At Latest Abortion Args
As the U.S. Supreme Court pondered permissible limits on abortion in medical emergencies, justices Wednesday split discernibly along ideological lines yet unmistakably along gender lines, with liberal and conservative women questioning restrictions far more forcefully than their male colleagues.
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April 24, 2024
Muscogee Supreme Court To Decide Descendants' Citizenship
Two descendants of those enslaved by the Muscogee (Creek) Nation are in limbo as they await a decision from the tribe's high court on whether they can apply for citizenship — a ruling that could pave the way for others to be eligible for healthcare and other benefits under federal law.
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April 24, 2024
'Black-ish' Actress Beats Suit Alleging She Stole Spinoff Idea
A California appeals court permanently ended on Monday a suit alleging actress Tracee Ellis Ross and producers of "Mixed-ish" stole a writer's ideas for a sitcom based on a mixed-race character growing up in the suburbs, finding there are no substantial similarities between the two shows.
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April 24, 2024
Pa. Court Revives Malpractice Suit Over Hip Implant Surgeries
The University of Pittsburgh Medical Center Pinnacle Hospitals, an orthopedic surgeon and a physician-owned clinic can't escape a malpractice suit over two hip replacements that left a woman with one leg shorter than the other, a Pennsylvania Superior Court panel has ruled, saying a jury must decide when the clock started on her claims.
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April 24, 2024
Pepsi Can't Use Workers' Comp Immunity In Fla. Shooting Suit
Florida's Third District Court of Appeal on Wednesday ruled that a Pepsi subsidiary can't utilize a workers' compensation immunity defense in a lawsuit brought by a former employee who was shot by a co-worker, saying the company took inconsistent positions on his claim for benefits.
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April 24, 2024
1st Circ. Upholds Feds' Vineyard Wind Project Approval
The First Circuit on Wednesday affirmed a lower court ruling rejecting Massachusetts residents' challenge to the federal government's approval of a wind energy project off the coast of Martha's Vineyard and Nantucket, saying federal regulators adequately analyzed the projects' effects on right whales.
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April 24, 2024
Meet The Attorneys Arguing Trump's Immunity At High Court
A Missouri solicitor general-turned-law firm founder will square off Thursday against a U.S. solicitor general's office veteran who is a member of an elite group of U.S. Supreme Court bar attorneys in a special oral argument session over former President Donald Trump's bid for immunity from federal criminal charges alleging he interfered in the 2020 presidential election.
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April 24, 2024
9th Circ. Says NLRB Can Enforce Starbucks Bargaining Order
The Ninth Circuit said Wednesday that Starbucks must recognize its Seattle roastery workers' April 2022 vote to unionize, overruling the coffee giant's contention that ballots should have been cast in person and concluding a National Labor Relations Board manager had discretion to call the mail-in election because of COVID-19 case counts at the time.
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April 24, 2024
EU Court Won't Disturb Spanish Tax Break Rulings
A Spanish company on Wednesday lost its attempt to legitimize a tax scheme declared illegal by the European Commission when the European Union's General Court rejected its appeal, refusing to disturb prior decisions in the long-running dispute.
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April 24, 2024
Texas Appeals Panel Partially Reverses Atty's Fee Victory
An Austin, Texas, trial lawyer who defeated a breach of fiduciary duty claim brought after he represented one half of a business partnership that went sour has had part of his victory overturned, with a Texas appellate court Wednesday determining that the trial court overstepped when also throwing out a fee claim against the attorney.
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April 24, 2024
Borrower Asks Full 4th Circ. To Hear Debt Canceling Case
A student loan borrower has asked the full Fourth Circuit to rehear his claims that a Pennsylvania loan servicer thwarted forgiveness of his federal student loans, arguing that the circuit court had overlooked parts of the loan servicing agreement that provided important context to his argument.
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April 24, 2024
FPL Asks Court To Decertify Class Over Irma Power Outages
Florida Power & Light Co. asked an appeals court Wednesday to undo class certification in a multibillion-dollar suit over extended power outages after Hurricane Irma, arguing that a new law enacted last year requires the plaintiffs to bring their claims before the state's Public Service Commission.
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April 24, 2024
Kaiser Wins $6.7M Real Estate Tax Refund Linked To Nonprofit
A split Washington appeals panel said that the Kaiser Foundation Health Plan of Washington was entitled to a $6.7 million real estate excise tax refund levied after its acquisition of the nonprofit Group Health Cooperative, reversing a trial court.
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April 24, 2024
Congress Didn't OK FCC's 'Disparate Impact' Ban, Critics Say
Business groups told the Eighth Circuit on Wednesday that the Federal Communications Commission's new rules against discrimination in broadband deployment should be overturned because Congress never intended that the agency use a sweeping "disparate impact" liability standard.
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April 24, 2024
Groups Back Intuit's 5th Circ. Challenge To FTC Over Ads
Business and conservative groups defended tax software giant Intuit Inc. in its Fifth Circuit constitutional challenge to the Federal Trade Commission's findings that the company engaged in deceptive advertising, saying the agency acts as both prosecutor and jury and that its administrative judges have unchecked power.
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April 24, 2024
Hawaii High Court Affirms Timeshare Property Tax Is Legal
Timeshares in Maui County, Hawaii, were properly taxed using a timeshare property classification because the classification is both constitutional and in line with the county's code, the state Supreme Court affirmed.
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April 24, 2024
Pegasystems Cuts $35M Deal To End Investor Suit
Pegasystems Inc. has agreed to pay $35 million to settle a shareholder suit in Massachusetts federal court alleging the software company failed to properly disclose a rival's trade secret litigation that led to a $2 billion verdict.
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April 24, 2024
Justices Spar On Interplay Of EMTALA, Idaho Abortion Ban
The U.S. Supreme Court held a feisty debate Wednesday over whether an Idaho abortion ban is superseded by a federal law requiring doctors at Medicare-funded hospitals to give emergency care, including abortions, to women suffering a medical crisis.
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April 24, 2024
3rd Circ. Won't Let Keystone Coal Escape Black Lung Payout
The Third Circuit on Wednesday denied Keystone Coal Mining Corp.'s request to revoke benefits awarded to a miner with pneumoconiosis under the Black Lung Benefits Act, rejecting its argument that the administrative law judge hearing the case did not properly consider all the evidence.
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April 24, 2024
9th Circ. Backs Limits On Montana Wolf Trapping
A split Ninth Circuit panel on Tuesday largely affirmed a lower court's order limiting wolf trapping and snaring in Montana over concerns it could impact grizzly bears, but directed the court to reconsider its "overbroad" geographic scope and limitations on state officials' research.
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April 24, 2024
4th Circ. Revives Worker's Age Bias Suit Against IT Co.
The Fourth Circuit on Wednesday reinstated a former information technology company worker's lawsuit alleging she was unlawfully fired and replaced by someone nearly 30 years her junior, saying a trial court held her to too high a standard when it threw out her case.
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April 24, 2024
11th Circ. Probes High Court Rulings' Effect On DeSantis Case
The Eleventh Circuit wants Florida Gov. Ron DeSantis and the state attorney he suspended to explain how two seemingly conflicting U.S. Supreme Court decisions could influence the appellate court's ability to hear that attorney's challenge to his removal.
Expert Analysis
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Studying NY, NJ Case Law On Employee Social Media Rights
While a New Jersey state appeals court has twice determined that an employee's termination by a private employer for social media posts is not prohibited, New York has yet to take a stand on the issue — so employers' decisions on such matters still need to be assessed on a case-by-case basis, say Julie Levinson Werner and Jessica Kriegsfeld at Lowenstein Sandler.
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A 5th Circ. Lesson On Preserving Indemnification Rights
The Fifth Circuit's recent decision in Raymond James & Associates v. Jalbert offers an important lesson for creditors and parties to indemnification agreements: If a debtor has indemnified a creditor, the creditor should consider participating in the bankruptcy case to avoid being deemed to have forfeited its indemnification rights, say Dania Slim and Alana Lyman at Pillsbury.
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ShapeShift Fine Epitomizes SEC's Crypto Policy, And Its Flaws
A recent U.S. Securities and Exchange Commission order imposing a fine on former cryptocurrency exchange ShapeShift for failing to register as a securities dealer showcases the SEC's regulation-by-enforcement approach, but the dissent by two commissioners raises valid concerns that the agency's embrace of ambiguity over clarity risks hampering the growth of the crypto economy, says Keith Blackman at Bracewell.
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2nd Circ. Adviser Liability Ruling May Shape SEC Enforcement
The Second Circuit’s recent decision in U.S. Securities and Exchange Commission v. Rashid, applying basic negligence principles to reverse a finding of investment adviser liability, provides a road map for future fraud enforcement proceedings, says Elisha Kobre at Bradley Arant.
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In Bribery Case, High Court's Past Is Probably Prologue
The U.S. Supreme Court will soon hear oral arguments in Snyder v. U.S. on the issue of whether federal law criminalizes gratuities that are not tied to an explicit quid pro quo, and precedent strongly indicates the court will limit an expansive reading of the bribery statute, say attorneys Sami Azhari and Don Davidson.
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Stay Interviews Are Key To Retaining Legal Talent
Even as the economy shifts and layoffs continue, law firms still want to retain their top attorneys, and so-called stay interviews — informal conversations with employees to identify potential issues before they lead to turnover — can be a crucial tool for improving retention and morale, say Tina Cohen Nicol and Kate Reder Sheikh at Major Lindsey.
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Direct Claims Ruling May Alter Gov't Ties To Software Firms
A recent Federal Circuit decision allowing a software developer to pursue legal action under the Contract Disputes Act could change the government's relationship with commercial software providers by permitting direct claims, even in third-party purchase situations, say Dan Ramish and Zach Prince at Haynes Boone.
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Payment Provision Lessons From NJ Construction Ruling
A New Jersey appellate court's decision in Bil-Jim v. Wyncrest, holding that an American Institute of Architects contract was not an installment contract, highlights both the complexities of statute of limitations calculations and the significant consequences that can arise from minor differences in contract language, say Mitchell Taraschi and Zac Brower at Connell Foley.
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The Fed. Circ. In February: A Reminder On Procedure Rule 28
Because the Federal Circuit does not often issue a sua sponte precedential order emphasizing an important rule of practice, it is useful to look at how the court applied the restrictions of appellate procedure Rule 28 in Promptu v. Comcast last month, and in cases that preceded it, say Jeremiah Helm and Sean Murray at Knobbe Martens.
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SC Ruling Reinforces All Sums Coverage Trend
A South Carolina state court's recent ruling in Covil v. Pennsylvania National is the latest in a series of decisions, dating back to the 2016 New York Court of Appeals ruling in Viking Pump, that reject insurers' pro rata allocation argument, further supporting that all sums coverage is required whenever a loss could be covered under a policy in any other year, say Raymond Mascia and Thomas Dupont at Anderson Kill.
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A Defense Strategy For Addressing Copyright Fee-Shifting
Permissive fee-shifting under Section 505 of the Copyright Act poses unique challenges for copyright defendants, carrying an outsize impact on the economic incentive structure in copyright litigation, but relying on a Federal Rule of Civil Procedure may offer a potential solution by allowing defendants to recover attorney fees, say Hugh Marbury and Molly Shaffer at Cozen O'Connor.
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Opinion
Neb. Justices Should Weigh IRC Terms In Dividend Tax Case
Nebraska’s highest court, which will hear oral arguments in Precision CastParts v. Department of Revenue on April 1, should recognize that the Internal Revenue Code provides key clues to defining “dividends received or deemed to be received,” and therefore limits Nebraska’s tax on foreign-sourced corporate income, says Joseph Schmidt at Ryan.
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Contract Disputes Recap: Facts Differ But Same Rules Apply
Zachary Jacobson and Sarah Barney at Seyfarth examine two decisions illustrating that reliance on a technicality may not save an otherwise untimely appeal, and that enforcement of commercial terms and conditions under a federal supply schedule contract may be possible.
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Del. Supreme Court Insurance Ruling Aids In Defining 'Claim'
The recent Delaware Supreme Court decision in Zurich v. Syngenta, finding that a presuit letter did not constitute a claim for insurance purposes, sets out a three-factor test to help policyholders distinguish when a demand rises to the level of a claim, says Lara Langeneckert at Barnes & Thornburg.
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Series
Spray Painting Makes Me A Better Lawyer
My experiences as an abstract spray paint artist have made me a better litigator, demonstrating — in more ways than one — how fluidity and flexibility are necessary parts of a successful legal practice, says Erick Sandlin at Bracewell.