Appellate

  • November 30, 2021

    High Court's Right Flank Floats Chevron Deference Overhaul

    Five conservative justices on the U.S. Supreme Court suggested Tuesday that a multibillion-dollar battle over Medicare drug reimbursement could become a vehicle for clarifying or nullifying so-called Chevron deference, a backbone of federal regulatory power and increasingly high-priority target of corporate America.

  • November 30, 2021

    App Makers Join Epic's Bid To Enforce 'Vital' App Store Order

    App developers including Tile and Match Group are backing Epic Games' call for the Ninth Circuit to force Apple to immediately comply with a federal court order to let app makers steer users to payment methods outside of Apple's system, arguing that the directive is a "vital cure" for Apple's "extremely harmful and anticompetitive" conduct.

  • November 30, 2021

    9th Circ. Revives Calif.'s High-Capacity Gun Magazine Ban

    A divided en banc Ninth Circuit broke with a previous three-judge panel and upheld California's ban on large-capacity ammunition on Tuesday, with the majority finding that the restriction saves lives and does not significantly interfere with a person's right to self-defense.

  • November 30, 2021

    2nd Circ. Hands Union Plan Trustees Win Over Amendments

    The Second Circuit awarded a win Tuesday to three men accused of flouting federal law by making it more difficult for two union-run benefit plans to appoint trustees, ruling that the move violated the plans' own amendment-setting process but not the Employee Retirement Income Security Act.

  • November 30, 2021

    3rd Circ. Says Paper Too Late On Suit Over Arbitration Award

    The publisher of the Pittsburgh Post-Gazette cannot undo an arbitrator's decision requiring it to cover workers' health care cost increases after a labor contract expired, the Third Circuit ruled Tuesday, saying the company waited too long to challenge the award in court.

  • November 30, 2021

    SCANA Plant Closure Didn't Flout WARN Act, 4th Circ. Affirms

    The Fourth Circuit refused Tuesday to revive a class action claiming a South Carolina utility company violated the Worker Adjustment and Retraining Notification Act by not giving workers sufficient warning before a nuclear plant's abrupt shutdown.

  • November 30, 2021

    DEA Asks DC Circ. To Toss Hemp Group's Rule Challenge

    The U.S. Drug Enforcement Administration has asked the D.C. Circuit to toss a hemp industry group's related challenges to the agency's 2020 rule governing the manufacture of hemp products.

  • November 30, 2021

    Split Fed. Circ. Upholds Mylan's Win In Axing Tecfidera Patent

    A West Virginia federal judge rightfully invalidated a patent covering Biogen's blockbuster multiple sclerosis drug Tecfidera, negating the need to see whether the Patent Trial and Appeal Board should have done so as well, the Federal Circuit said Tuesday.

  • November 30, 2021

    6th Circ. Affirms Toss Of Bridal Salon's Virus Coverage Suit

    The Sixth Circuit continued its trend on Tuesday of favoring insurers in COVID-19 business interruption suits, this time in a bridal salon's proposed class action seeking coverage of losses because of pandemic-related restrictions.

  • November 30, 2021

    7th Circ. Seems Unconvinced Obama Center Work Must Stop

    The Seventh Circuit seemed unconvinced Tuesday that it should reverse a lower court's ruling and temporarily halt the construction of former President Barack Obama's planned multimillion-dollar presidential center in a historic Chicago park.

  • November 30, 2021

    Kavanaugh Seen As Key Vote In Roe Showdown

    When the U.S. Supreme Court debates the fate of Roe v. Wade on Wednesday morning, the spotlight will be on key vote Justice Brett Kavanaugh, who has called Roe an "important precedent" but has also been willing to overturn holdings he disagrees with.

  • November 30, 2021

    NJ Justices Skeptical Convicted Atty Can Keep License

    The New Jersey Supreme Court appeared skeptical Tuesday of a suspended attorney's bid to avoid losing her state law license following her criminal convictions for taking part in a roughly $873,000 mortgage fraud scheme, challenging her stance that her falsification of documents solely warranted a suspension.

  • November 30, 2021

    NJ Justices Probe 'Muzzling' Bankruptcy Clause In Settlement

    The New Jersey Supreme Court offered mixed takes Tuesday on the potential "muzzling" effect of a settlement provision that the money a speech-language pathologist owed to Horizon Blue Cross Blue Shield of New Jersey would not be dischargeable if she filed for bankruptcy.

  • November 30, 2021

    11th Circ. Affirms Reduced Atty Fees In Electronics Sale Suit

    The Eleventh Circuit has upheld a roughly $1 million attorney fee award for an electronics company instead of the $2.6 million it requested, ruling that the company's partial legal victory against a Chinese manufacturer over claims it breached a sales agreement didn't merit the desired amount.

  • November 30, 2021

    Justices Open To Emotional Distress Damages In Bias Row

    A majority of U.S. Supreme Court justices appeared open Tuesday to siding with a blind and deaf woman who claims the Fifth Circuit wrongly affirmed the denial of her request for emotional distress damages after a physical therapy clinic refused to provide a sign language interpreter.

  • November 30, 2021

    Texas Justices Query Insurer's Safety Duty In Fatal Crash

    The Texas Supreme Court questioned Tuesday whether an insurer acted negligently when instructing a policyholder to have her husband take pictures of damage to a vehicle without specifying he should first make sure the scene was safe, after which the man was fatally hit by another vehicle.

  • November 30, 2021

    DC Circ. Says DOJ Must Unredact Portions Of Mueller Report

    The D.C. Circuit on Tuesday ordered the U.S. Department of Justice to disclose some previously redacted parts of former special counsel Robert Mueller's Russian election interference report that would reveal why he declined to bring campaign finance charges against certain Trump 2016 campaign officials.

  • November 30, 2021

    Senate Judiciary Preps 12 Nom Votes Ahead Of Year-End Push

    The Senate Judiciary Committee could advance as many as a dozen of President Joe Biden's judicial nominees later this week, creating a large pot of candidates available for confirmation votes on the Senate floor in the final month of the year.

  • November 30, 2021

    Texas Justices Told To Ax New Trial In Football Field Fight

    The Texas Supreme Court was told during oral arguments on Tuesday that an intermediate appellate court wrongly ordered a new trial in a dispute between a school district, a company that makes artificial turf football fields and a contractor by failing to address any of five arguments that could have ended the case.

  • November 30, 2021

    NY Village Asks High Court To Overturn Cayuga Bingo Ruling

    The village of Union Springs, New York, has urged the U.S. Supreme Court to overturn a Second Circuit ruling that the village can't block the Cayuga Nation from offering electronic bingo, saying the appellate court misapplied both a 2005 high court decision and federal law.

  • November 30, 2021

    Texas Panel Probes Basis For $22M Legal Malpractice Award

    Dallas law firm Newsom Terry & Newsom LLP on Tuesday urged a state appellate court to toss a roughly $22 million legal malpractice verdict stemming from its representation of a real estate brokerage, arguing it shouldn't be held liable for what amounts to a harmless error in the underlying suit.

  • November 30, 2021

    Del. Justices Back Verisign's Win On Net Operating Losses

    The Delaware Supreme Court said the state Division of Revenue exceeded its authority when it disallowed Verisign Inc.'s claims of large net operating losses in 2015 and 2016, invalidating a long-standing operating loss policy.

  • November 30, 2021

    Amazon Keeps Win In 3rd-Party Electric Bike Injury Suit

    A New York appeals court on Tuesday upheld the dismissal of a suit that sought to hold Amazon liable for injuries caused by an electric bicycle sold by a third party, saying the e-commerce giant cannot be accountable for a product that was never in its possession.

  • November 30, 2021

    5th Circ. Affirms BP's Win In Oil Worker's Injury Suit

    The Fifth Circuit has affirmed a win in Texas federal court for BP Exploration & Production Inc., holding a district court judge correctly ruled BP couldn't be held liable for injuries suffered by an independent contractor who was working on an oil platform in the Gulf of Mexico.

  • November 30, 2021

    DC Circ. Skeptical Of Trump's Bid To Block Capital Riot Docs

    A D.C. Circuit panel expressed strong doubts Tuesday about former President Donald Trump's blanket assertion of executive privilege to shield his White House records from a House panel probing the Jan. 6 U.S. Capitol riot, suggesting that he doesn't have standing to challenge President Joe Biden's decision to waive his privilege claim.

Expert Analysis

  • 5 Considerations For Obtaining Design Patents In US, Abroad

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    With recent World Intellectual Property Organization data indicating a worldwide increase in design patent filings, companies should bear in mind several tips for obtaining and benefiting from design patent protection in the U.S. and abroad, including pointers on key differences among jurisdictions, say Elizabeth Ferrill and Jeffrey Smyth at Finnegan.

  • 2 Insurance Rulings Showcase Trend Favoring Appraisal

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    Two recent decisions from a Florida state court and the Tenth Circuit are consistent with the purpose of, and overwhelming judicial preference toward, appraisal as a means of property claim resolution, ensuring that policyholders have further support in employing this tool against a reluctant insurer, say Matthew Weaver and Jessica Gopiao at Reed Smith.

  • Without Leadership Buy-In, Law Firm DEI Efforts Stand To Fail

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    A law firm's diversity, equity and inclusion strategies need the full attention and support of its top leadership to succeed, and requiring the firm's key decision makers to join the DEI committee can make the difference, says Noble Allen at Hinckley Allen.

  • And Now A Word From The Panel: Judging MDLs

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    A review of the judges selected by the Judicial Panel on Multidistrict Litigation to oversee the MDL proceedings established so far this year offers insights on how much experience judges must have before the panel will assign MDLs to them, says Alan Rothman at Sidley.

  • Series

    Confronting Origination Credit: Self-Advocacy Tips For Attys

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    Female lawyers and lawyers of color have historically not been privy to the rules of the origination credit game, but they can employ various strategies to increase the chances of receiving the credit they are due, such as enlisting allies for support and tracking inequity patterns, says Marianne Trost at The Women Lawyers Coach.

  • As Climate Litigation Heats Up, More Cos. Face Liability Risk

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    The number, pace and sophistication of climate change-related suits are steadily increasing, both in the U.S. and abroad, and while plaintiffs face substantial hurdles under existing law and evidentiary burdens, liability risks to industry, and the scope of potential defendants, are also growing, say attorneys at Pillsbury.

  • How 'Rocket Dockets' Are Affecting IPR Discretionary Denials

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    Statistical analysis of over 500 recent Patent Trial and Appeal Board decisions reveals that filing an infringement suit in one of two so-called rocket dockets provided an advantage for patent owners seeking an inter partes review denial based on the copending trial date, say attorneys at Wilson Sonsini.

  • COVID Insurance Cases Highlight Federal-State Court Tension

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    COVID-19 insurance coverage litigation has resulted in an unprecedented number of federal courts preemptively ruling on an area of law in which state courts have final say — a problematic trend with likely undesirable results for litigants unless federal courts consider certain proactive solutions, says John Koch at Flaster Greenberg.

  • A Real-World Guide To Staying Discovery In Federal Court

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    Pleas for stay of discovery under the Federal Rules of Civil Procedure are often rejected when motions to dismiss are pending due to a tenacious tangle of case law, imposing financial and administrative burdens on parties, but some unambiguous rules of thumb can be gleaned to maximize the chances of a discovery stay, says Amir Shachmurove at Reed Smith.

  • What Return Of Fraud On USPTO Means For TM Practitioners

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    In Chutter v. Great Management, the Trademark Trial and Appeal Board held for the first time that reckless disregard for the truth in declarations constitutes fraud on the U.S. Patent and Trademark Office, alerting practitioners that their inattention could result in cancellation of clients' trademarks, says Laura Winston at Offit Kurman.

  • How Advice-Of-Counsel Defense May Fare In Bannon Case

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    While it appears that Steve Bannon will say he relied on the advice of his counsel to defend contempt of Congress charges for noncompliance with a House subpoena, the viability of this argument turns on the precise contours of the legal advice his attorney provided, says Steven Gordon at Holland & Knight.

  • Texas Insurers' Paths To Post-Appraisal Summary Judgment

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    Despite Texas insurance law changes that have altered the interaction between appraisal awards and certain extracontractual claims, recent state and federal court decisions show insurers still have options for summary judgment on policyholders' claims after the entry of an appraisal award, say Michael O'Brien and Claire Fialcowitz at Zelle.

  • Record Award Shows Claims Court's Rising Role In IP Matters

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    The Court of Federal Claims' recent damages award of over $100 million in SecurityPoint Holdings v. U.S. — its largest-ever patent infringement award against the government — highlights the court's increasing importance in patent litigation, as well as its special jurisdiction requirements and fee standards, say Ranganath Sudarshan and Adam Mitchell at Covington.

  • Opinion

    To Vax Or Not To Vax Is Not A Constitutional Question

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    Opponents of COVID-19 vaccine mandates, including several states' governors, mistakenly insist that such requirements offend their constitutional rights, but a careful review of U.S. Supreme Court jurisprudence on the subject shows no grounding for their position, say Daniel Karon at Karon LLC and Giliann Karon at Accountable Tech.

  • Auto Cos. Must Prep For State AG Action On Fuel Efficiency

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    State attorneys general continue to demonstrate their active interest in fuel efficiency standards, so automotive companies should monitor state AGs' statements and activity to respond quickly to new regulatory and enforcement initiatives, say James Koukios and Nathan Reilly at MoFo.

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