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Barrett's High Court Confirmation, By The Numbers

Judge Amy Coney Barrett will join the U.S. Supreme Court after a narrow Senate vote Monday. Law360 put her confirmation process in perspective.
November 23, 2020
Split 5th Circ. Says Texas Can Cut Planned Parenthood Funds

An split en banc Fifth Circuit on Monday overruled a circuit panel and vacated a preliminary injunction blocking Texas from kicking Planned Parenthood out of the Medicaid program, holding that individual patients do not have a right to challenge the state's determination that their providers were not "qualified."
November 23, 2020
Texas Hospital Keeps Win In Patient Nerve Damage Suit

A Texas appellate court has affirmed the dismissal of a suit seeking to hold a Baylor Scott & White hospital liable for a patient's nerve damage suffered due to alleged malpractice, rejecting the patient's argument that the treatment shouldn't be considered emergency medical care subject to a higher evidentiary standard.
November 23, 2020
9th Circ. Applies FLSA Standard To Contractor's FMLA Case

The Ninth Circuit ruled Monday that the Family and Medical Leave Act's statute of limitations barred a former contractor from suing a government agency because it did not "willfully" avoid giving her information about her federal leave rights, joining several circuit courts in applying the Fair Labor Standards Act's willfulness standard to the FMLA.
November 23, 2020
High Court Won't Hear Walmart's Texas Liquor Law Challenge

The U.S. Supreme Court on Monday refused to hear Walmart's case against Texas' distilled spirits regulator over a state law that the retail behemoth maintains is unconstitutional because it effectively blocks out-of-state retailers from competing with the state's own liquor stores.
November 23, 2020
9th Circ. Says Client Can't Sue Ariz. Firm In Company's Stead

A Ninth Circuit panel tossed a legal malpractice suit against an Arizona law firm, backing a district court's determination that a sole shareholder of a dissolved financial company does not have the right to bring such claims.
November 23, 2020
Fed. Circ. Affirms Hospira's Generic Adrenalin Loss To Par

The Federal Circuit on Monday affirmed a Delaware federal judge's ruling that Hospira's generic version of Par Pharmaceutical's epinephrine emergency allergy product Adrenalin infringes two valid patents covering the drug, leaving in place an injunction blocking Hospira's generic.
November 23, 2020
Sen. Feinstein Says She'll Cede Top Judiciary Committee Spot

Sen. Dianne Feinstein, D-Calif., who faced some criticism for her role in the Judiciary Committee's hearings for Justice Amy Coney Barrett's nomination to the U.S. Supreme Court, announced Monday that she will not seek to reclaim her position as the committee's top Democrat.
November 23, 2020
Amid Circuit Split, BIA Says TPS Does Not Equal Admissibility

The Board of Immigration Appeals took sides in a deep circuit split over temporary protected status Monday when it ordered an immigration judge to resume removal proceedings against a Salvadoran man whose TPS ended in 2012.
November 23, 2020
Trump Asks 3rd Circ. For 2nd Shot At Upending Pa. Election

President Donald Trump's reelection campaign asked the Third Circuit on Monday to give it a second chance at tossing enough Pennsylvania votes to swing the state's electors, after his federal lawsuit was dismissed over the weekend.
November 23, 2020
DC Circ. Mulls Gov't Power In Rancher Fight Over Tribal Water

The D.C. Circuit is set to decide if a group of Oregon ranchers can challenge the U.S. Bureau of Indian Affairs' enforcement of tribal water rights in their area, and the case may come down to whether the panel is convinced that the government must co-sign tribal calls for enforcement.
November 23, 2020
Big Lots' Ohio Attys Wrongfully DQ'd From Calif. Wage Fight

A California appellate court has vacated the disqualification of several Ohio attorneys representing Big Lots in an overtime pay dispute, determining that a state court jumped the gun by revoking their temporary admission to work on the putative class action after they solicited current and former employees.
November 23, 2020
Justices Won't Weigh In On Whether Title VII Covers Soldiers

The U.S. Supreme Court refused Monday to hear a race bias case from a Black ex-Marine who argued that the D.C. Circuit's finding that Title VII did not apply to uniformed service members conflicted with the justices' blockbuster holding that the federal civil rights law bars discrimination against gay and transgender workers.
November 23, 2020
11th Circ. Says Georgia-Pacific Drug Policy Open To Question

An arbitrator could interpret Georgia-Pacific's zero-tolerance drug policy as lacking just cause to fire a union worker who tested positive for opiates, the Eleventh Circuit said, reversing an Alabama federal court's decision that the arbitrator overstepped his bounds with that decision.
November 23, 2020
Md. Court Reinstates $2.6M Award In Cancer Death Suit

A Maryland appeals court on Monday reinstated a $2.6 million jury verdict in a suit accusing a radiologist of failing to timely diagnose a woman's breast cancer that caused her death, saying the trial judge's decision to toss the verdict was erroneous.
November 23, 2020
Calif. Law Limiting Review Of Gas Power Plants Struck Down

A California law unconstitutionally limited court review of where natural gas-fired and thermal power plants can be located to only the state's Supreme Court, a state appeals court ruled Friday.
November 23, 2020
Texas Justices Urged To Settle $820M Refinery Feud

Petrobras and Belgium-based Transcor Astra Group want the Texas Supreme Court to weigh in on long-running litigation over a soured Texas refinery partnership and an $820 million settlement tainted by a corruption scandal that engulfed Brazil's state-owned oil giant.
November 23, 2020
Texas Panel Affirms Tax, Fraud Penalty On $4.8M Plane Buy

A Texas appellate court upheld a tax assessment and fraud penalty on a company's purchase of a $4.8 million airplane, finding the corporation presented false information while seeking to qualify for a tax exemption.
November 23, 2020
Car Dealer Asks Full DC Circ. To Rehear 'Scapegoating' Row

An Illinois Cadillac dealer has asked the D.C. Circuit to reconsider a panel ruling that found the company violated labor law by firing two employees in retaliation for their unionizing, arguing the decision "irrevocably alters federal labor law" and conflicts with settled precedent.
November 23, 2020
Pa. Justices Say Ballots Missing Minor Info Can Be Counted

The Supreme Court of Pennsylvania ruled Monday that counties can count mail-in ballots that had minor technical defects with their outer envelopes, such as missing handwritten dates, addresses or voter names, freeing up thousands of votes that had been held up by litigation by President Donald Trump's reelection campaign.
November 23, 2020
Ex-Mine Owner Tells DC Circ. Fraud Charges Time-Barred

The ex-owner of an Afghan marble mining company convicted of fraud and money laundering told the D.C. Circuit on Monday that some of the counts against him were time-barred.
November 23, 2020
Stericycle Investor Seeks Atty Sanction After Objector Claim

A Stericycle shareholder appealing a 25% cut that Bernstein Litowitz received from representing investors in a $45 million settlement with the solid waste hauler is pressing the Seventh Circuit to reprimand a firm attorney, saying he called the shareholder's own lawyer a "notorious professional objector" despite knowing the allegation was baseless.
November 23, 2020
9th Circ. Revives B&B Owner's Case Against Border Agent

The Ninth Circuit has revived a Washington state bed and breakfast owner's lawsuit against a U.S. Customs and Border Patrol agent who allegedly shoved him to the ground and retaliated by initiating a tax investigation when the businessman complained.
November 23, 2020
Calif. Supreme Court Won't Hear Amazon Batteries Case

The Supreme Court of California won't review an appeals court holding that Amazon.com LLC can be held liable for the sale of allegedly faulty batteries through its online marketplace, leaving in place the only precedential opinion holding Amazon liable for a product sold through its site, an attorney for the plaintiff said.
November 23, 2020
Calif. Panel Upholds Ban On Farm's Unpermitted Pot Biz

A California cannabis farm can't escape a temporary court order shutting down its operations, a California state appeals court ruled, siding with neighbors who claim the operators are illegally growing pot and holding tastings and tours without permits.
November 23, 2020
Uber, Lyft Can't Undo Calif. Court Order To Reclassify Drivers

A California appeals court denied Uber's and Lyft's requests to reconsider its decision upholding an injunction that required the ride-hailing companies to classify their drivers as employees, rebuffing their argument that a recently approved ballot measure meant the ruling needed another look.

Expert Analysis

Ethics Considerations For Law Firms Implementing AI

Richard Finkelman and Yihua Astle at Berkeley Research Group discuss the ethical and bias concerns law firms must address when implementing artificial intelligence-powered applications for recruiting, conflict identification and client counseling.
When A Product Liability Case Can't Survive Outside An MDL

Baca v. Johnson & Johnson, a recent pelvic mesh lawsuit brought in Arizona federal court, is a perfect example of how some product liability cases that might be accepted in a multidistrict litigation contain deficiencies that cannot withstand scrutiny when tried individually, says Rachel Weil at Reed Smith.
Uncertainty Around Border Phone Search Standard Continues

The U.S. Supreme Court's recent cert denial in Williams v. U.S. continues confusion on the level of suspicion required for border agent electronic device searches, so international travelers should take steps to protect their sensitive information, say Alexander Lawrence and Sara Stearns at MoFo.
3rd Circ. Could Select Middle Path On Foreign Discovery Law

In a circuit split over whether a U.S. foreign discovery law may be used for private arbitration, the Third Circuit in Axion Holding Cyprus may choose a middle ground by finding that private arbitration under the U.K. Arbitration Act involves sufficient judicial oversight to make it subject to the statute, says Adrienne Koch at Katsky Korins.
Tech Cos. Could Face Stiffer SEC Enforcement Under Biden

Ahead of President-elect Joe Biden's appointment of a new U.S. Securities and Exchange Commission chair, Silicon Valley should expect greater scrutiny of whistleblowers, earnings management, risk disclosures and insider trading — all potentially influenced by the federal courts in serving as a check on the agency's enforcement, say attorneys at MoFo.
Picking The Right Location And Tools For Virtual Courtrooms

Attorneys should consider the pros and cons of participating in virtual court proceedings from home versus their law firm offices, and whether they have the right audio, video and team communication tools for their particular setup, say attorneys at Arnold & Porter.
Remedial Measure Evidence Use In IP Cases Needs Clarity

A tension in federal district and circuit courts over whether Federal Rule of Evidence 407, which prohibits post-injury remediation evidence, applies in the intellectual property context creates great uncertainty that courts should resolve with a bright-line rule, say Sharad Bijanki and Patrick Muffo at Seyfarth.
Beware Atty Ethics Rules When Reporting COVID-19 Fraud

Attorneys considering blowing the whistle on False Claims Act violations by recipients of COVID-19 relief may face a number of ethical constraints on their ability to disclose client information and file qui tam actions, say Breon Peace and Jennifer Kennedy Park at Cleary.
10th Circ. ADA Ruling May Affect Employer Accommodations

While it doesn't alter employers' Americans With Disabilities Act obligations, the Tenth Circuit's recent decision in Exby-Stolley v. Board of County Commissioners raises concerns about denying specific requests for reasonable accommodation, say Janet Savage and Penelope Scudder at Davis Graham.
Looking For Judicial Activists? Check The Footnotes

U.S. Supreme Court nominees typically face intense questioning over potential judicial activism, but a better way to gauge judges' activist tendencies may be to look at the footnotes in their opinions, say Christopher Collier at Hawkins Parnell and Michael Arndt at Rohan Law.
Using Prior Art In Patentability Args Amid Fed. Circ. Confusion

While waiting for the Federal Circuit to resolve its recent inconsistent treatment of prior-art-based arguments during a Section 101 patent eligibility analysis, practitioners should draft patent specifications to show improvements over prior art and then leverage them in litigation, say Michael Kiklis and Matthew Zapadka at Bass Berry.
Ex-Informant Ruling Guides On Challenging SEC Enforcement

A New Jersey federal court’s recent decision in a dispute between the U.S. Securities and Exchange Commission and a former government informant highlights the agency's obligations as a litigant, and offers guidance for challenging enforcement actions in court, say attorneys at Troutman Pepper.
Best Practices For Legal Technology Adoption

The pandemic has accelerated the need to improve the practice of law through technology, but law firms and in-house legal departments must first ensure they have employee buy-in and well-defined processes for new digital tools, say Dan Broderick at BlackBoiler and Daryl Shetterly at Orrick.
8 Steps To Record Employment Decisions In Uncertain Times

In light of COVID-19 and an increased focus on social justice, companies that follow a consistent protocol for documenting employment decisions can decrease their risk of scrutiny and legal exposure, says Lauren Ziegler at McDermott.
Creating A Better Framework For PTAB Serial Petition Denials

The Patent Trial and Appeal Board's analysis for denying serial petitions should be replaced with new factors that would better conform with the goals of the America Invents Act by striking a fair balance between petitioners' access to, and abuse of, PTAB review proceedings, say Brenton Babcock and Tyler Train at Womble Bond.