The U.S. Supreme Court cleared the way Monday for employers nationwide to require workers to sign away their right to pursue class actions in a blockbuster ruling that attorneys on both sides of the bar agree will translate to millions more workers being bound by class waivers. Here, Law360 looks at five key takeaways from the high court's long-anticipated decision.
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Tuesday, May 22, 2018 Follow Appellate Law360



5 Takeaways From Employers' Win On Class Waivers

The U.S. Supreme Court cleared the way Monday for employers nationwide to require workers to sign away their right to pursue class actions in a blockbuster ruling that attorneys on both sides of the bar agree will translate to millions more workers being bound by class waivers. Here, Law360 looks at five key takeaways from the high court's long-anticipated decision. Read more »

High Court Blesses Employers' Use Of Class Waivers

The U.S. Supreme Court ruled Monday that employment agreements forcing workers to sign away their rights to pursue class action claims are legal, rejecting the National Labor Relations Board’s position that class waivers violate federal labor law. Read more »

Threat To Tribal Immunity Lurks In Skagit's High Court Win

The U.S. Supreme Court’s decision Monday in favor of the Upper Skagit Indian Tribe in a property dispute handed the tribe an important win, but it also kicked back to Washington state court an argument that may yet curb tribal sovereign immunity and make it harder for tribes to take hold of off-reservation land, attorneys say. Read more »

Upper Skagit Tribe Scores High Court Win In Property Fight

The U.S. Supreme Court on Monday struck down a Washington Supreme Court ruling that the Upper Skagit tribe could not invoke its sovereign immunity to scuttle a property ownership suit, saying the precedent the state court relied on didn’t resolve tribal immunity issues and that the state court should consider an alternative argument raised late in the case. Read more »

High Court Will Hear Challenge To Va. Uranium Mining Ban

The U.S. Supreme Court on Monday said it will hear a uranium company's challenge to Virginia's ban on uranium mining that the Fourth Circuit upheld, entertaining the corporation's argument that precedent said the Atomic Energy Act preempted state laws that address radiation dangers. Read more »

After Kozinski, 9th Circ. Sets New Workplace Policies

Months after the resignation of Ninth Circuit Judge Alex Kozinski following allegations of sexual harassment, the appellate circuit on which he sat rolled out a series of policy changes aimed at preventing workplace harassment for court employees, according to a statement Monday. Read more »


Justices Agree To Review Tribal Boundaries In Murder Case

The U.S. Supreme Court agreed Monday to hear Oklahoma's challenge to a Tenth Circuit decision nixing a Muscogee Creek Nation citizen’s state court murder conviction and death sentence, positioning the high court to weigh in on whether the location of the killing in question still lies within the tribe’s reservation boundaries. Read more »

Justices To Review Scope Of Immunity For Int'l Orgs

The U.S. Supreme Court has agreed to review a D.C. Circuit decision holding that international organizations enjoy even more immunity from lawsuits than do foreign governments, taking up a case Monday from a group of Indian nationals suing the International Finance Corp. over a power plant project they say has wreaked havoc on the surrounding environment. Read more »

High Court To Hear Fees Dispute In Social Security Cases

The U.S. Supreme Court on Monday accepted review of a case that would resolve a discrepancy among the circuit courts over how attorneys' fees are calculated when lawyers win cases for clients seeking Social Security benefits. Read more »

Justices Won't Hear Class Action Over Army Base Pollution

The U.S. Supreme Court declined Monday to revive a proposed $750 million class action that alleges the U.S. Army is liable for injuries and deaths caused by its negligent disposal of toxic chemicals at a Maryland base. Read more »

Justices Turn Away Solvay FCA Off-Label Marketing Case

The U.S. Supreme Court on Monday rejected a bid to revisit a decision tossing a whistleblower's False Claims Act case that had accused Solvay Pharmaceuticals of inducing false Medicaid claims through alleged off-label marketing and kickback schemes for three of its drugs. Read more »

High Court Won't Revive Oil Rig Indemnity Claim

The U.S. Supreme Court on Monday declined to hear an appeal of an en banc Fifth Circuit ruling that allowed a contractor and its insurer to escape indemnity for an offshore gas well accident on the grounds Louisiana state law and not maritime law applied. Read more »

High Court Won't Look At 3rd Circ. Ruling On Eyedrop Size

The U.S. Supreme Court on Monday refused to review a Third Circuit ruling that revived a proposed class action accusing Allergan Inc., Pfizer Inc. and other drugmakers of ripping off consumers by selling eyedrops in wasteful dispensers. Read more »

High Court Won't Review Gutted $4.35M Licensing Award

The U.S. Supreme Court said Monday it will not review a decision in which the Second Circuit slashed a fitness-wear company’s $4.35 million licensing-related jury award to $1. Read more »


OPM Should Face Revived Data Breach Suit, DC Circ. Told

The Electronic Privacy Information Center and dozens of experts are backing a bid to revive multidistrict litigation over a 2015 data breach at the U.S. Office of Personnel Management, telling the D.C. Circuit that the Constitution and recent case law support the ability of plaintiffs to sue federal agencies for failing to protect sensitive data. Read more »

NJ Asks DC Circuit To Undo PennEast Pipeline Approval

New Jersey launched a challenge in the D.C. Circuit on Monday to the Federal Energy Regulatory Commission's recent decision to greenlight construction of the controversial $1 billion PennEast gas pipeline. Read more »


Fed. Circ. Affirms Ax Of Solar Panel Roof Mounting Patents

The Federal Circuit on Monday upheld a ruling that parts of three patents covering roof mount assemblies are invalid, preserving a victory for two solar energy companies that had been accused of infringement. Read more »

Fed. Circ. Asks Google Whether Full Court Should Eye Patents

The Federal Circuit on Friday asked Google to weigh in on a patent licensing company’s request for the entire court to review whether a panel erred in holding that the Patent Trial and Appeal Board goofed on its construction of a claim term included in several media search patents challenged by the tech giant. Read more »

Tribe Says It's Not Just 'Collecting A Check' From Patents

The St. Regis Mohawk Tribe is gearing up to actively use the patents it bought from Allergan PLC to develop new medicines, proving the purchase wasn’t just a sham deal to help Allergan avoid patent reviews and bring in income for the tribe, the pair told the Federal Circuit. Read more »


1st Circ. Says Food Stamp-Fraud Proof Burden Is On Grocer

In a case of first impression, the First Circuit ruled Monday that the burden of proof for rebutting food stamp fraud allegations falls on a grocer, in a case against a store that claimed to sell pricey goat and camel meat and catered to Somali immigrants. Read more »


9th Circ. Halts $93M Award Collection In Russian Mall Row

The Ninth Circuit has told a Russian businessman he must wait to see if he can take funds held in a trust to collect on a $92.5 million arbitration award issued against his former business partner in a dispute over a mall in Moscow, as a court in Liechtenstein is deliberating the very same issue.  Read more »

9th Circ. Revives Office Depot's Coverage Battle With AIG

The Ninth Circuit on Monday revived Office Depot Inc.'s bid to force an AIG unit to cover its costs in a suit alleging it violated the California False Claims Act by overbilling public agencies, rejecting a lower court's conclusion that claims brought under the CFCA are innately subject to a state law barring insurance for deliberate wrongful conduct. Read more »


Hartford Beats Appeal In $6.5M False-Ad Deal Coverage Fight

A California appeals court on Monday refused to revive Vogue International LLC’s suit asking Hartford Casualty Insurance Co. to cover a $6.5 million settlement of a proposed class action accusing the hair care company of falsely marketing its Organix products as organic, saying it is bound by a Florida court’s prior ruling in Hartford’s favor. Read more »


Florida Judge Up For Suspension Over Racial Slurs

A Florida circuit court judge faces a 30-day suspension without pay after he used racial slurs to describe black defendants and family members in his courtroom, according to a recommendation from the Florida Judicial Qualifications Commission on Monday. Read more »

Fla. High Court Suspends Miami Atty Over Account Transfers

The Florida Supreme Court on Monday suspended high-profile Miami plaintiffs attorney Jeremy Alters while the justices consider the Florida Bar’s request to disbar him over more than $2 million in improper transfers from trust accounts. Read more »


PSEG Unit Can't Escape NJ Contract Row With Steel Co.

An executive did not need an expert designation to back up breach-of-contract claims over an agreement to fabricate steel for a power station, a New Jersey state appeals court said Monday in a published opinion reviving his company’s suit against a PSEG affiliate. Read more »

NJ Justices Won't Review BASF, Shell Win Over Polluted Site

The New Jersey Supreme Court on Monday declined to review an appellate decision upholding a settlement that forced the former owner of a landfill site to turn over the facility to BASF Corp., Shell Oil Co. and others in exchange for their handling of cleanup costs. Read more »


College Athlete Publicity Rights In Fantasy Issue Heats Up

Daily fantasy sports operators FanDuel and DraftKings on Friday told the Indiana Supreme Court they do not need permission to use the names, likenesses and statistics of college athletes in their pay-to-play contests, while the athletes said the opposite in a lawsuit that is raising the issue of who owns such information as fantasy sports, and now sports betting, spread across the country. Read more »


Md. Atty Disbarred For Bungling Personal Injury Cases

Maryland’s highest court on Monday affirmed the disbarment of a personal injury attorney for the “flagrant abandonment” of a woman’s two personal injury cases, saying a sanction of disbarment is appropriate to protect the public from attorneys who ignore client matters. Read more »


Auto Dealer Can't Revive Malpractice Suit Tied To Fraud Case

A Michigan car dealer who pled guilty to bank fraud and then canned a related malpractice civil suit against a Flint-area law firm lost his bid to reopen that dispute last week when a Wolverine State appeals court found the trial court abused its discretion in undoing a stipulation to dismiss it. Read more »


Minn. Hospital Preserves Trial Win In Patient Stroke Suit

A Minnesota appellate panel on Monday affirmed a verdict in favor of a hospital sued for causing a man’s stroke and seizure following emergency treatment, saying the trial judge properly allowed evidence that the man’s chronic alcohol abuse may have caused the stroke. Read more »


High Court Has Returned Workers To 'Like It Or Lump It' Era

With Justice Neil Gorsuch’s majority opinion Monday in Epic Systems v. Lewis, the U.S. Supreme Court revives a toxic idea that was common before the New Deal: the fiction that an individual employee’s waiver of rights in an employment agreement is a voluntary tradeoff — not an illegal power grab by the employer at its time of maximum leverage, says Scott Oswald of The Employment Law Group PC. Read more »


How To Fix The Problem Of Foreign Patent Damages

At the U.S. Supreme Court oral arguments in WesternGeco v. Ion, some were analogizing patent holders to parties whose natural rights are injured by tortious conduct. This is not a good approach to patent law. In cases like this one, the patentee can be fully and fairly compensated by a reasonable royalty, says Jay Lapeyre, president of Laitram LLC and chairman of Ion's board of directors. Read more »

Fed. Circ. Continues To Clarify Venue Post-TC Heartland

Tuesday marks one year since the U.S. Supreme Court fundamentally narrowed patent venue in its TC Heartland decision. This month, three Federal Circuit decisions addressed a number of outstanding questions on patent venue, but none of the court's positions was unexpected, say attorneys with Eversheds Sutherland LLP. Read more »

Policy Language Can Curtail Long-Tail Insurance Claims

The New York Court of Appeals' recent decision in Keyspan v. Munich shows that the most effective tool an insurer has in cases involving long-tail claims is its specific policy language limiting coverage to losses that occur during the policy period, says Paul Ferland of Foran Glennon Palandech Ponzi & Rudloff PC. Read more »

Post-Dynamex: A Narrow Road Ahead For Calif. Trucking Cos.

The California Supreme Court's recent opinion in Dynamex Operations West v. Superior Court of Los Angeles County sent shock waves through the entire transportation industry, which has traditionally relied on independent contractors. However, specifically for trucking companies that operate in the Golden State, Dynamex raises a litany of compliance concerns, says Bradford Hughes of Clark Hill PLC. Read more »

Introducing The Legal Industry To Millennial Business Owners

​The current business climate has produced vast opportunities for seasoned lawyers to create valuable connections with millennial business owners, but first lawyers must cleanse their palate of misconceptions regarding millennials, says Yaima Seigley of Isaac Wiles Burkholder & Teetor LLC. Read more »



Why Smaller Firms Are More Keen To Enter The Cloud

Law offices adopted cloud-based solutions in greater numbers last year, but for the most part, smaller firms are leading the charge, with BigLaw's relative slowness attributable to a reluctance to abandon large IT infrastructures already in place and lingering concerns about security and cost. Read more »

Law Firms Are Doing Just Fine, And That's The Problem

Ten years after the Great Recession sent the legal industry reeling, the majority of law firms have stabilized, but by focusing more on survival than on innovation, firms have left themselves open to newer, less obvious threats to this tentative status quo, a new report says. Read more »


Atty Hopefuls With Criminal Records Face Hazy Paths Forward

Tarra Simmons had the sort of resume that might seem like she could sail through the bar application process, but her application was nearly denied because she also has a criminal record. Different states have a range of views on admitting attorneys with criminal records, and thanks to a lack of data and lack of transparency, such applicants can face an uncertain path forward. It’s an issue that’s getting increasing attention and leading some to seek reforms. Read more »

Ogletree Sex Harassment Row Likely Headed To Arbitration

A California judge on Monday tentatively ruled a Lewis Brisbois Bisgaard & Smith LLP partner must arbitrate his suit alleging he was sexually harassed by a shareholder at his former firm, Ogletree Deakins Nash Smoak & Stewart PC, saying Ogletree’s arbitration agreement holds up even if the suing attorney never signed it. Read more »

Calif. Bar Exam Pass Rate Still Falling, Hits Record Low

Only 27.3 percent of attorney hopefuls who took the California bar exam earlier this year passed, a record low, according to data released Friday by the State Bar of California. Read more »


15 Minutes With PepsiCo’s General Counsel

Dave Yawman didn’t give much thought to becoming the general counsel at PepsiCo, where he has worked for nearly 20 years, until the day after he was asked to fill the position in November. Here, he discusses the changes at the global food and beverage corporation during his tenure and the way discontent can lead to success. Read more »

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