Analysis

High Court Ruling May Shake Up CFPB's Litigation Docket

By Jon Hill

A U.S. Supreme Court ruling that may come as soon as Thursday could decide the fate of not only the Consumer Financial Protection Bureau's funding structure but also numerous pending enforcement actions the agency has brought around the country. Here, Law360 surveys what's at stake and where.

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Biden Picks US Magistrate Judge In Fla. For 11th Circ.

By Courtney Bublé

President Joe Biden announced Wednesday his intent to nominate U.S. Magistrate Judge Embry J. Kidd to the Eleventh Circuit.

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Catholic School Defeats Gay Teacher's Bias Suit At 4th Circ.

By Patrick Hoff

The Fourth Circuit on Wednesday struck down a gay drama teacher's win in his suit alleging he was unlawfully fired by a Catholic school after announcing his wedding on Facebook, finding that his job entailed responsibilities that triggered a religious exception to anti-discrimination law.

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9th Circ. Says Calif. Can Give Gun Buyer Info To Researchers

By Gina Kim

The Ninth Circuit on Wednesday declined to revive a constitutional challenge to a California law requiring the state to provide biographical information about firearm purchasers and those with carry-conceal permits to accredited research institutions studying gun violence, saying the information at issue isn't highly personal and doesn't implicate the right to privacy. 

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Pa. Panel Scrutinizes Missteps In 2020 Election Machine Fracas

By Matthew Santoni

The Pennsylvania Commonwealth Court on Wednesday brought up apparent missteps by both sides of a fight stemming from third-party inspections of a conservative county's voting machines, started by the county commissioners falling in with the hunt for fraud in the 2020 election and the state pushing back.

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Proposal To Pick NJ Appeals Judges Ripped As 'Terrible Idea'

By Jake Maher

A chorus of legal voices from across New Jersey, including state Supreme Court Chief Justice Stuart Rabner and the New Jersey State Bar Association, blasted a proposal to move the power to appoint state appeals court judges from the chief justice to the state Senate and the governor's office.

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ND Changes Course In Residents' High Court VRA Dispute

By Crystal Owens

In a move Native American tribes are calling "unconscionable," North Dakota Secretary of State Michael Howe is asking the U.S. Supreme Court to vacate and remand Voting Rights Act litigation, saying the state is unable to defend the basis for which it won the lawsuit.

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Vape Fluid Co. Urges Justices To Take Up FDA Challenge

By Mike Curley

Lotus Vaping Technologies LLC is urging the U.S. Supreme Court to hear its appeal of the U.S. Food and Drug Administration's denial of its application to market bottled flavored e-cigarette fluids, saying the case provides an appropriate vehicle to examine the FDA's policies.

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Fed. Circ. Denies Siemens' Bid For Navy Energy Audit Costs

By Daniel Wilson

The Federal Circuit ruled Wednesday that the U.S. Navy doesn't owe a Siemens unit $5.7 million for costs the company incurred to investigate potential energy savings measures at two military installations, saying a related contract clearly didn't cover those costs. 

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Black & Decker's Stud Finder Patent Win Gets Fed. Circ. OK

By Ryan Davis

The Federal Circuit on Wednesday upheld a decision clearing Stanley Black & Decker Inc. in a stud finder patent suit by rival Zircon Corp., backing the U.S. International Trade Commission's finding that Zircon didn't show it has a domestic industry of products protected by the patents.

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Fed. Circ. Judge Troubled By Government's Visa Fraud Sting

By Britain Eakin

A Federal Circuit judge on Wednesday said he was troubled by the federal government's argument that it has no liability to foreign students who paid thousands of dollars to attend a fake university the government set up to ensnare visa fraudsters.

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Sorority Fails To Get Fed. Circ. To Revive TM Case

By Andrew Karpan

A one-line Federal Circuit ruling Wednesday upheld a decision shooting down a popular sorority's efforts to obtain a trademark registration covering the acronym "ZTA" for use in the consumer goods market. 

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Arendi Seeks Revival Of Google, Oath IP Rows At Fed. Circ.

By Adam Lidgett

Arendi SARL has urged the Federal Circuit to revive its two data system patent lawsuits alleging infringement by Google and Oath Holdings, arguing in part that the lower court erred when it failed to find the patents eligible.

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4th Circ. Says Purpose Of Inmate Labor Affects Classification

By Irene Spezzamonte

The primary purpose of prisoners' work at a Baltimore County recycling plant should determine whether a group of incarcerated people were employees under federal law, a Fourth Circuit panel ruled Wednesday, rejecting the county's view that any amount of rehabilitative-oriented work spared it from minimum wage obligations.

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4th Circ. Asks If High Court Ruling Bars Credit Suisse Tipster

By Natalie Olivo

A Fourth Circuit panel questioned Wednesday whether a U.S. Supreme Court ruling prevented it from reviving a whistleblower case by a former Credit Suisse employee alleging the bank helped U.S. citizens evade taxes after paying a $2.6 billion criminal penalty.

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Committing Bribery Or Fixing 'Chaos': Mogul's Retrial Begins

By Hayley Fowler

An insurance mogul and his one-time political consultant resorted to "pure and simple" bribery when they promised North Carolina's insurance commissioner up to $2 million in campaign contributions to remove an inquisitive official, federal prosecutors told a jury Wednesday, while the mogul's counsel countered that he just wanted a fair shake from a department in "chaos."

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Sens. Call For Revamp Of SEC's Nixed Stock Buyback Rules

By Jessica Corso

The U.S. Securities and Exchange Commission should "promptly" reissue disclosure rules vacated by the Fifth Circuit last year so that companies are required to publicly disclose more information on their share repurchase plans, a bipartisan pair of U.S. senators told the agency's leader on Monday.

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6th Circ. Partially Remands Sanofi's Tenn. Lake Pollution Suit

By Juan-Carlos Rodriguez

The Sixth Circuit on Tuesday revived parts of a Sanofi unit's lawsuit against a Tennessee landfill owner that allegedly improperly closed the dump and caused water contamination on the other company's property.

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Split 6th Circ. Says Digital Media TM Case Has To Stay In Tenn.

By Andrew Karpan

The Sixth Circuit on Wednesday held that a trademark fight between two companies that digitally preserve home movies, photos and other media will have to play out in a Tennessee federal court, after the panel split over how many customers are enough to extend jurisdiction in the trademark dispute.

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6th Circ. Questions FERC's Moves On Ohio Utility Grid Perk

By Keith Goldberg

A Sixth Circuit panel on Wednesday questioned the role of a rate perk given to transmission companies for choosing to join a regional transmission organization as it weighed the Federal Energy Regulatory Commission's decision to yank the incentive for several Ohio utilities while preserving it for others.

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8th Circ. Grapples With What Triggers An EFAA 'Dispute'

By Amanda Ottaway

The Eighth Circuit seemed skeptical Wednesday of Chipotle's argument that the date of a worker's alleged sexual assault is the linchpin for determining whether a law limiting mandatory arbitration shields her lawsuit, but receptive to the notion that a "dispute" could have occurred before she filed the case in court.

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BIA Tells 8th Circ. Energy Co. Can't Revive Lease Suit

By Joyce Hanson

The U.S. Department of the Interior's Bureau of Indian Affairs has asked the Eighth Circuit to uphold a North Dakota federal judge's dismissal of Prima Exploration Inc.'s oil and gas lease termination suit, saying the lower court correctly dismissed the case for failure to exhaust administrative remedies.

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Tribes And Groups Urge 9th Circ. To Uphold TikTok Ban Pause

By Crystal Owens

Free speech and internet advocacy groups, as well a Native American nonprofit and two tribes, are urging the Ninth Circuit to uphold a lower court's decision that blocks Montana from banning social app TikTok, arguing that First Amendment protections include such media platforms.

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Robins Kaplan File Flub Bad Look For Both Sides, Panel Says

By Rachel Scharf

A Manhattan appeals panel expressed concern Wednesday that Robins Kaplan LLP had poked through an opposing party's Dropbox database that was accidentally shared in investor litigation, while also criticizing the other side for failing to catch the error.

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Calif. Justices Weigh Striking Anti-Tax Ballot Initiative

By Maria Koklanaris

California Supreme Court justices sought to understand Wednesday if a measure approved for the November ballot that would make it harder to raise taxes would eliminate lawmakers' ability to tax and would illegally revise — rather than amend — the state constitution.

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Jury Instruction Won't Upend $1.4M Motorcycle Crash Verdict

By Mike Curley

A California appeals court won't undo a $1.4 million verdict in a suit over a motorcycle accident, saying that even if the trial court gave a jury instruction that was extraneous and not applicable to the facts of the case, there's no indication that it prejudiced or misled the jury.

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Lyft Driver Asks Calif. Justices To OK Intervening In PAGA Suit

By Craig Clough

An attorney for a Lyft driver who sued the company under the Private Attorneys General Act urged the California Supreme Court on Wednesday to find her client has standing to intervene in a competing PAGA Lyft case that reached a settlement, saying the deal threatened to "extinguish" her client's rights.

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NJ Court Reverses Order Piercing School Board Atty Privilege

By Emily Sawicki

A New Jersey appellate court has reversed trial court orders compelling a school district to produce communications with its attorneys in a discrimination and malicious prosecution suit brought by a former administrator, finding that she had not established any Sixth Amendment right at stake to necessitate piercing attorney-client privilege.

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Trashing Of IP Case Wrongly Cut Atty Fees, Del. Justices Told

By Jeff Montgomery

An attorney for a client who saw all claims against him dropped before trial in a suit focused on allegedly purloined trash-handling trade secrets urged Delaware's Supreme Court on Wednesday to reverse the Chancery Court's purported failure to hear his attorney fee claim.

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AMC Objector Says Chancery Settlement Lacked Due Process

By Leslie A. Pappas

An AMC Entertainment Inc. stockholder who opposed a class settlement that the company reached with other shareholders to end Chancery Court litigation over a controversial share conversion told Delaware's Supreme Court Wednesday that the deal should be unwound for lack of due process.

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Duke Doctor Partially Resuscitates NC Firing Suit

By Travis Bland

The North Carolina state appeals court has partially revived a fired Duke University hospital resident's lawsuit alleging that health care system officials terminated him because of his depression after an inadequate firing-review process that violated an employment contract.

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Ga. Appeals Court Will Review Trump DQ Bid In Election Case

By Kelcey Caulder

The Georgia Court of Appeals on Wednesday agreed to review a judge's ruling allowing Fulton County District Attorney Fani T. Willis to continue prosecuting the election interference case she brought against former President Donald Trump.

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Ga. Doctor, Urology Clinic Want New Trial In $15M Death Case

By Kelcey Caulder

Attorneys for a Georgia doctor and urology clinic urged the Georgia Court of Appeals on Wednesday to set aside a $15 million jury verdict and order a new trial in a wrongful death case filed by the wife of an 80-year-old man who died following a November 2016 prostate surgery.

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Mich. Justices Unsure New Mandate Altered Old Auto Policies

By Carolyn Muyskens

Michigan Supreme Court justices appeared divided Wednesday over whether an overhaul of the state's compulsory car insurance scheme affected pre-existing policies or applied only to policies issued after the reforms went into effect.   

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Credit Suisse Urges Mich. Panel To Reverse Biz Loss Denial

By Paul Williams

A Credit Suisse attorney pressed the Michigan Court of Appeals on Wednesday to clarify how the state's tax laws account for losses from real estate mortgage investment conduits, saying a lower court incorrectly denied its attempt to carry forward $21.3 million in losses.

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Wash. Justices Decline Personal Injury Atty's Fee Split Spat

By Rachel Riley

Washington's high court has declined to hear a personal injury lawyer's challenge to his old firm's fee-splitting agreement, letting stand a state appellate court's ruling that the contract had "clear and unequivocal language" compelling him to pass on half the fees he earned from the firm's former clients after his departure.

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Colo. Justice Doubts Auto-Reversal In 'Very Rare' Atty Conflict

By Daniel Ducassi

Colorado's chief justice questioned Wednesday why a man should get to automatically reverse his sexual assault conviction because his lawyer was being simultaneously prosecuted by the same district attorney's office, a situation that the convicted man said is exceedingly rare.

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Conn. Justices To Hear McCarter & English Damages Demand

By Aaron Keller

The Connecticut Supreme Court has accepted a certified question from a federal district court judge in McCarter & English LLP's yearslong fee feud with a former client, agreeing to decide whether the firm can recover punitive damages after years chasing Jarrow Formulas Inc. and winning a jury verdict last year.

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Mass. Justices May Give Green Light To Tip Ballot Measure

By Julie Manganis

Massachusetts' high court justices appeared skeptical Wednesday of arguments by a group of restaurant owners seeking to kill a ballot question that, if approved, would gradually raise the minimum wage for tipped workers to the state's $15-per-hour standard.

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Justices Clarify FAA But Leave Behind Important Questions

The U.S. Supreme Court's decision last month in Bissonnette v. LePage firmly shuts the door on any argument that the Federal Arbitration Act's Section 1 exemption is limited to transportation workers whose employers transport goods on behalf of others, but two major issues remain unresolved, say Joshua Wesneski and Crystal Weeks at Weil.

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How Courts Are Interpreting Fed. Circ. IPR Estoppel Ruling

In the year since the Federal Circuit’s Ironburg ruling, which clarified the scope of inter partes and post-grant review estoppel, district court decisions show that application of IPR or PGR estoppel may become a resource-intensive inquiry, say Whitney Meier Howard and Michelle Lavrichenko at Venable.

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Rebuttal

Double-Patenting Ruling Shows Terminal Disclaimers' Value

While a recent Law360 guest article seems to argue that the Federal Circuit’s Cellect decision last year robs patent owners of lawful patent term, the ruling actually identifies how terminal disclaimers are the solution to the problem of obviousness-type double patenting, say Jane Love and Robert Trenchard at Gibson Dunn.

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Is The Digital Accessibility Storm Almost Over?

Though private businesses have faced a decadelong deluge of digital accessibility complaints in the absence of clear regulations or uniformity among the courts, attorneys at Epstein Becker address how recent federal courts’ pushback against serial Americans with Disabilities Act plaintiffs and the U.S. Department of Justice’s proposed government accessibility standards may presage a break in the downpour.

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'Fat Leonard' Case Shows High Bar For Rescinding Guilty Plea

Prosecutors’ recent move in the “Fat Leonard” bribery case, supporting several defendants’ motions to withdraw their guilty pleas, is extremely unusual – and its contrast with other prosecutions demonstrates that the procedural safeguards at plea hearings are far from enough, says Sara Kropf at Kropf Moseley.

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Series

Swimming Makes Me A Better Lawyer

Years of participation in swimming events, especially in the open water, have proven to be ideal preparation for appellate arguments in court — just as you must put your trust in the ocean when competing in a swim event, you must do the same with the judicial process, says John Kulewicz at Vorys.

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