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December 15, 2023
The Biggest Trademark Rulings of 2023
The U.S. Supreme Court decided the First Amendment does not shield a poop-themed dog toy from infringement claims in a suit over a parody of Jack Daniel's famous whiskey bottles, and the justices concluded federal trademark law does not extend to conduct in other countries. Here are Law360's picks for the biggest trademark rulings of 2023.
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December 15, 2023
Parties Want To Revisit Ore. Dam Review In 5 Years
The states of Oregon and Washington, as well as a coalition of green groups and Native American tribes, have entered into a joint agreement with the federal government to pause their lawsuit over hydropower practices on the Columbia River until 2029, as the parties begin restoring salmon habitats.
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December 15, 2023
Tribe-Linked Usury Lender Must Face RICO Claim In Va. Court
Loan financier Matt Martorello cannot object to a Virginia venue for a proposed class action over his alleged role in a usurious "rent-a-tribe" lending scheme despite the state's plaintiffs withdrawing after a $43 million class judgment was entered against Martorello in a separate but related case, a Virginia federal judge ruled.
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December 15, 2023
9th Circ. Stays Appeal In California Indian Child Welfare Case
The Ninth Circuit on Thursday agreed to stay appeal proceedings in a case where California tribal groups and child welfare advocates seek to reinstate a set of rules requiring the U.S. government to track states' compliance with the Indian Child Welfare Act and collect certain information on sexual orientation in child custody cases.
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December 15, 2023
Tulsa Can't Prosecute Crimes In Indian Country, Judge Says
The city of Tulsa, Oklahoma, lacks jurisdiction to prosecute Native Americans for municipal crimes committed on reservation lands, a federal court judge determined Friday, saying an appellate court mandate that dismissed an early 19th-century law governing judicial authority over Indian Country will remain in effect.
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December 15, 2023
Feds Defend Arctic Seal Habitat Against Alaska Challenge
The federal government is calling on an Alaska federal judge to throw out the state's lawsuit challenging the designation of some Arctic waters as habitat for two endangered seal species, saying the court should reject the false premise that the size of the critical habitat designations makes them "inherently suspect."
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December 15, 2023
8th Circ. Denies Stay In North Dakota Voting Rights Ruling
The Eighth Circuit on Friday denied a stay bid by North Dakota Secretary of State Michael Howe that would have halted a lower court's ruling that ordered the state's lawmakers to remedy Voting Rights Act violations by Dec. 22 and instead allowed the contested map to guide its 2024 elections.
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December 15, 2023
Motley Rice 'Weaponized' Gov. Info For Opioid MDL, PBM Says
An online pharmacy defending itself amid multidistrict litigation launched by state attorneys general over the opioid epidemic urged a federal judge Friday to disqualify Motley Rice LLC, saying the plaintiffs' firm "weaponized" confidential information it received while investigating on behalf of the government.
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December 14, 2023
ND Secretary Of State Seeks 8th Circ. Stay In VRA Ruling
North Dakota Secretary of State Michael Howe is asking the Eighth Circuit to "preserve the status quo" and stay an order requiring the state's lawmakers to remedy Voting Rights Act violations and allow its already enacted redistricting map to remain in place for the 2024 elections while litigation plays out in the appellate court.
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December 14, 2023
Feds Can't Dodge ND's $38M Pipeline Protest Claims
A North Dakota federal judge said the U.S. government will have to face at trial North Dakota's claims for $38 million in damages for alleged failure to control Dakota Access pipeline protests after letting protesters set up camp on federal property without the required permit.
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December 14, 2023
8th Circ. Rule Throws Wrench In Neb. VRA Decree, Judge Says
A federal district court judge wants two Native American tribes and officials in Thurston County, Nebraska, to weigh in on a proposed consent decree that resolves Voting Rights Act allegations, saying that while he's inclined to accept the negotiated resolution, a recent Eighth Circuit ruling "has potentially thrown a wrench into the works."
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December 14, 2023
DOI Must Give Judge Docs As Tribe Fights For Recognition
A Washington federal judge has ordered the U.S. Department of the Interior to provide him with 10 documents tied to the Duwamish Tribe's request for federal recognition, rejecting the department's argument that they are protected under the deliberative process privilege.
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December 13, 2023
Military Health System Lacks Opioid Rx Controls, IG Finds
Health officials at the U.S. Department of Defense aren’t doing enough to control and monitor the flow of opioid prescriptions, creating gaps in care for at-risk patients and raising potential “readiness” concerns, according to a recent internal audit.
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December 13, 2023
Lithium Mine Suit Ends After Tribes Skip Filing Amended Suit
A U.S. district judge has dismissed with prejudice a lawsuit by three Native American tribes seeking to block the construction of the country's largest open pit lithium mine after they did not file an amended complaint by her Dec. 9 deadline.
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December 13, 2023
NY Thruway Uses Cayuga Land Without Permission, Suit Says
The Cayuga Nation has filed suit against New York State seeking a cut of the tolls collected on the New York State Thruway where it passes through the 64,000-acre reservation promised to the nation in a 1794 treaty.
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December 12, 2023
Blackfeet Nation Freed Of Claims It Broke Campground Lease
A Montana federal court has favored the Blackfeet Nation in private campground operator Eagle Bear Inc.'s suit over its lease on tribal land, throwing out the case with prejudice after finding the business illegally operated the property on Indian trust land for 15 years.
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December 12, 2023
Tribes Seek To Intervene In Arizona Voter Drop Box Litigation
Two Native American tribes want to intervene in a lawsuit playing out in Arizona Superior Court, where a nonprofit group and a registered voter are challenging a proposed decision by Secretary of State Adrian Fontes to establish unstaffed ballot drop boxes throughout the state, saying the group's proposal to remove such methods would disenfranchise their right to vote.
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December 12, 2023
Alaska Judge Joins Challenges Of Tongass Forest Protections
An Alaska federal judge is consolidating a trio of lawsuits claiming the Biden administration overstepped and unlawfully reinstated a ban on logging and road construction on millions of acres in the Tongass National Forest in southeast Alaska.
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December 12, 2023
23 States Tell Justices US Can't Sink Rio Grande Deal
About half the states in the nation — a mix of red and blue — are asking the U.S. Supreme Court to smack down the federal government's attempt to scuttle a Rio Grande water sharing agreement between Texas, New Mexico and Colorado.
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December 11, 2023
Mich. AG Turns To Shakespeare To Block Enbridge Appeal
Michigan Attorney General Dana Nessel quoted "Romeo and Juliet" in her bid to shut down a natural gas and oil pipeline that crosses the Great Lakes, telling the Sixth Circuit that Enbridge Energy LP is playing word games to support its late transfer of the lawsuit to federal court.
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December 11, 2023
Feds, States, Tribe Back Consent Decree With Gas Cos.
The federal government, the Southern Ute Indian Tribe and five states are asking a Colorado federal judge to enter a consent decree with The Williams Companies Inc. and Harvest Four Corners LLC, calling their settlement with the natural gas companies "fair, reasonable and in the public interest."
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December 11, 2023
Tulsa Looks To Ax Tribe's Indian Country Jurisdiction Dispute
Tulsa city officials are asking an Oklahoma federal district court to dismiss claims by the Muscogee (Creek) Nation that allege Native Americans are being unlawfully prosecuted, saying the law regarding jurisdiction over Indian Country is "unsettled, continually evolving and the subject of several pending lawsuits in both state and federal courts."
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December 11, 2023
Late VRA Map Unfair To Voters And Candidates, ND Says
Any change to North Dakota's redistricting map after Dec. 31 can't be undone without causing significant confusion and hardships among voters and candidates, Secretary of State Micheal Howe has told a federal district judge, saying a stay in judgment will allow its lawmakers a "reasonable opportunity" to adopt a remedial plan before the court imposes one.
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December 11, 2023
No Virus Coverage For Casino Operator, Minn. Panel Rules
A Minnesota state appeals court upheld the dismissal of a casino and golf course operator's bid for COVID-19 business-interruption coverage Monday, finding the operator failed to claim that COVID-19 was actually present at its property.
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December 08, 2023
ND Must Allow New Voting Map To Prevail In Suit, Tribes Say
A federal judge is allowing two Native American tribes time to plead their case as to why an alternative version of a new state voting map should be used to correct Voting Rights Act violations should North Dakota lawmakers fail to meet a deadline requiring them to make the amendments themselves.
Expert Analysis
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Opinion
New-Parent Attorneys Need Automatic Litigation Stays
To facilitate parental leave for solo practitioners and small-firm attorneys excluded from the Family and Medical Leave Act's protections, the American Bar Association should amend its rules to implement automatic litigation stays for attorneys welcoming a new child, says attorney Gabriel Levy.
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Associate Skills That Impress Firms In A Cooling Job Market
With the lateral hiring market calming down and law firms no longer overlooking resume deficiencies when evaluating candidates, associates at all levels should be cognizant of the skills and attributes that make them marketable to prospective employers, says J.B. Pullias at VOYlegal.
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High Court Could Resolve Thorny Atty-Client Privilege Issue
The U.S. Supreme Court recently granted review in a federal grand jury proceeding that presents a rare opportunity to clarify — and possibly significantly expand — the scope of the attorney-client privilege for complex mixed-purpose communications with counsel, says David Greenwald at Jenner & Block.
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Internet Gaming Biz Hit The Jackpot With Wire Act Ruling
A Rhode Island federal court's order in IGT v. Garland last month — siding with the First Circuit's interpretation of the Wire Act and confirming it applies only to sports betting — opens up opportunities for interstate online gaming and gambling, which will entail harmonized regulation and taxation regimes, say attorneys at Blank Rome.
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Minn.'s New Common Interest Doctrine: A Primer
In its recent ruling in Energy Policy Advocates v. Ellison, the Minnesota Supreme Court adopted the common interest doctrine, extending confidentiality to communications between an attorney and client that include a third party — but successful use of the doctrine will require care, preparation and attention to detail, says George Singer at Ballard Spahr.
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Refining Info Governance As E-Discovery Gets More Complex
Courts are increasingly requiring litigants to produce chats and other conversations recorded on business collaboration platforms as evidence, so companies should develop strategies for preserving and organizing such data to timely comply with e-discovery requests and to protect sensitive information, say attorneys at Akerman.
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Permitting Reform: Electric Transmission Implications
While Sen. Joe Manchin recently withdrew his energy infrastructure permitting reform proposal, it is likely that it will remain high on the congressional agenda — especially given its potential to transform authorizations and reviews for electric transmission projects, say attorneys at Steptoe & Johnson.
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Risk Mitigation In Face Of Rising Legal Malpractice Claims
As the recent rise in frequency and cost of legal malpractice claims is expected to continue amid global high inflation and economic uncertainty, law firms and insurers would be wise to evaluate key risk areas and consider six steps to minimize exposure, say Nicole Shapiro and Cory Stumpf at Atheria Law.
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Opinion
Justices' Clean Water Act Queries Hint At Search For Balance
While some predict that the U.S. Supreme Court's conservative majority will use Sackett v. U.S. Environmental Protection Agency to strike a blow against the Clean Water Act, the justices' scrutiny of simplistic industry assertions during oral argument offers hope that they may render a more nuanced verdict, says Sambhav Sankar at Earthjustice.
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Series
Keys To A 9-0 High Court Win: Look For Common Ground
When arguing for the petitioner in Golan v. Saada before the U.S. Supreme Court earlier this year, a focus was placed on appealing to multiple judicial philosophies with the aim of not only winning each justice’s vote, but also achieving clear guidance from the court’s opinion, says Karen King at Morvillo Abramowitz.
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Slow EPA Approvals Impair State Carbon Storage Plans
Given the Biden administration's enormous climate goals — including promoting geologic storage of carbon dioxide — the U.S. Environmental Protection Agency should consider improvements to its sluggish process for approving states' applications to manage carbon sequestration wells, say Anna Wildeman and Dave Ross at Troutman Pepper.
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Limiting The Scope Of Representation Is Critical For Lawyers
A Mississippi federal court's recent decision in Kee v. Howard L. Nations PC highlights the importance of well-written engagement letters, and shows why it is vital for attorneys to specify exactly which services they intend to supply, says Ronald Levine at Herrick Feinstein.
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Attys Shouldn't Assume Judicial Critique Is Protected Speech
As it becomes more commonplace to see criticism of the judiciary in the media, licensed attorneys are well advised to remember that they may have less freedom than nonlawyers to make protected speech critical of the judiciary, says Mark Hinderks at Stinson.
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Series
Keys To A 9-0 High Court Win: Practicality Over Perfection
When I argued for the petitioner in Wooden v. U.S. last year, I discovered that preparation is key, but so is the right kind of preparation — in giving decisive answers to the U.S. Supreme Court justices' hypothetical questions I was not aiming for perfection, just the best response available, says Allon Kedem at Arnold & Porter.
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What New Bar Exam Means For Law Students And Schools
Stephanie Acosta at UWorld discusses how law students and law schools can start preparing now for the new bar exam launching in 2026, which is expected to emphasize real-world lawyering skills-based tasks over rote memorization.