President Donald Trump has prioritized rolling back the "administrative state," White House Counsel Don McGahn said Thursday, and part of that is looking at potential judicial nominees' experience with government regulation and major guideposts like Chevron deference.
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White House Atty: Chevron Deference A Priority For Judges

President Donald Trump has prioritized rolling back the "administrative state," White House Counsel Don McGahn said Thursday, and part of that is looking at potential judicial nominees' experience with government regulation and major guideposts like Chevron deference. Read more »

Analysis

Chevron Spared As Justices Say 'Whistleblower' Term Clear

After speculation that a former executive's retaliation case would lead to a re-evaluation of the so-called Chevron doctrine, the U.S. Supreme Court instead found Wednesday that the definition of “whistleblower” in the Dodd-Frank Act is so clear that the question of courts deferring to agencies’ interpretations of ambiguous statutes was moot. Read more »

6th Circ. Hands Union Win In Dues Checkoff Case

The Sixth Circuit ruled Thursday that a United Food & Commercial Workers International Union local acted properly when it kept collecting union dues from two members who failed to follow proper procedures for rescinding the authorization they gave to have those dues deducted from their paychecks. Read more »

3rd Circ. OKs FBI Malware Warrant In Child Porn Case

The Third Circuit said Wednesday that a magistrate judge overstepped her authority when she let the FBI use malware to identify suspects in a massive child pornography sting, but broke new legal ground by ruling that the evidence was allowed because law enforcement had obtained the search warrant in good faith. Read more »

Google's PTAB Loss On Ad Patents Affirmed At Fed. Circ.

Google LLC took a hit Thursday when the Federal Circuit affirmed decisions from the Patent Trial and Appeal Board that upheld claims in two advertising technology patents that the company has been accused of infringing, rejecting its argument that the claims were obvious. Read more »

SUPREME COURT

Feature

SEC Case Exposes Justices' Rift Over 'Legislative History'

The Supreme Court’s long-running tensions over the use of legislative history as a way to interpret law broke out into public view Wednesday in a case over the Dodd-Frank Act’s whistleblower provisions, as Justices Sonia Sotomayor and Clarence Thomas clashed over the value of a Senate report. Read more »

Immigration Law Allows Trump's Travel Ban, High Court Told

The Trump administration on Thursday defended its ban on travel to the U.S. by nationals of several predominantly Muslim countries, telling the U.S. Supreme Court that the president acted at the height of his powers under federal immigration law and the U.S. Constitution. Read more »

Justices Told To Reject Attacks On $380M Native Farmer Deal

The U.S. Department of Agriculture told the U.S. Supreme Court on Wednesday that it should turn down challenges to a ruling that allowed for the redistribution of $380 million left over from the department’s landmark settlement of Native American farmers and ranchers’ racial discrimination claims. Read more »

DC CIRCUIT

DC Circ. Weighs ‘Perfectly Neutral’ EPA Reason In Bias Row

A D.C. Circuit judge on Thursday signaled rough terrain ahead for a former Environmental Protection Agency manager who is accusing the EPA of age discrimination and retaliation, with the judge noting the agency has a “perfectly neutral” explanation for a reorganization the former manager alleges was retaliatory. Read more »

Feds Ask DC Circ. To Reinstate Tax Preparer ID Fees

Seeking to overturn a federal court decision, the IRS told the D.C. Circuit on Wednesday it had the authority to charge $37.6 million in fees to issue and renew preparer tax identification numbers because a PTIN has value — it protects a tax preparer’s Social Security number and helps the preparer avoid a penalty of up to $25,000. Read more »

FEDERAL CIRCUIT

TransCanada Gas Unit Vies For FERC Market Rates At DC Circ.

Pipeline giant TransCanada Corp.’s U.S. natural gas storage unit urged a D.C. Circuit panel Thursday to allow it to charge market-based rates, asserting in oral arguments that the Federal Energy Regulatory Commission wrongly denied it the right to charge those rates while permitting others in the same market to do so. Read more »

Comcast, Verizon Fight Fed. Circ. Redo After Alice Patent Win

Comcast and Verizon urged the Federal Circuit on Wednesday not to rehear claims by Two-Way Media over four invalidated streaming media patents, saying the panel decision does not contradict Federal Circuit precedent and that en banc review is not warranted. Read more »

Mastercard Asks Fed. Circ. To Affirm PTAB's Toss Of Patents

Mastercard asked the Federal Circuit on Wednesday to affirm the Patent Trial and Appeal Board’s second decision to invalidate an inventor’s payment patents as anticipated by prior art, saying the PTAB carefully considered the Federal Circuit's remand instructions after vacating the first invalidation and reached the same conclusion. Read more »

FIRST CIRCUIT

Omni Urges 1st Circ. To Rehear Suit Over Hotel Lobby Assault

Omni Hotels asked the First Circuit on Wednesday to reconsider the court’s decision to revive a man's suit accusing the company of negligence in an assault he suffered in a hotel lobby, saying circuit judges erred in accepting "inadmissible hearsay" and speculation about Omni’s standard of care. Read more »

THIRD CIRCUIT

Pa. Attys’ $38K Sanctions Halted For 3rd Circ. Appeal

Three Pennsylvania attorneys sanctioned for lodging a groundless proposed class action against a surgery center were granted a reprieve from paying approximately $38,000 in penalties after a federal judge halted the case on Wednesday pending a Third Circuit appeal. Read more »

NJ Hotel Escapes Patron's Infection Suit At 3rd Circ.

The Third Circuit on Wednesday affirmed a ruling for Windrift Hotel Resort in litigation brought by a woman whose leg was amputated after she contracted sepsis and a bacterial skin infection from raw clams, saying there wasn’t enough evidence that the Jersey Shore establishment was to blame for the allegedly defective food. Read more »

FOURTH CIRCUIT

4th Circ. Resurrects Medical Device Co. Investor Suit

A split Fourth Circuit panel on Thursday revived a stock fraud suit stemming from accusations that the maker of a spinal surgery system encouraged surgeons using its system to seek fraudulent reimbursement from insurers, finding in part that the company’s alleged failure to disclose the purported scheme counted as an actionable omission. Read more »

SIXTH CIRCUIT

6th Circ. Won't Revive Spinal Patients' Bone Growth Suit

The Sixth Circuit upheld the permanent toss of spinal patients' claims that an unsafe biologic caused excess bone growth and constant, incurable pain, saying Thursday it is too late for the patients to challenge the argument that only the federal government can bring such claims. Read more »

Insurers Fire Back At Bank's Bid For 6th Circ. Revival

Eight insurers have told the Sixth Circuit that not only did they rightfully refuse to pay $75 million toward a $212 million settlement First Horizon National Corp. reached with regulators, but that the appeals court should revive their bad faith and breach of settlement claims against the bank. Read more »

Insurer Balks At Covering Warehouse Damaged By Pot Op

Westfield Insurance Co. on Wednesday told the Sixth Circuit it shouldn’t have to pay for warehouses that were damaged when they were surreptitiously converted into marijuana growing operations, calling the property owner’s argument that the damages resulted from “vandalism” and therefore are covered “a legal and factual red herring.” Read more »

SEVENTH CIRCUIT

7th Circ. Wants US Input On Ill. Nuke Subsidies

The Seventh Circuit on Wednesday asked the U.S. government to weigh in on whether Illinois' plan to subsidize nuclear power plants usurps federal authority over wholesale electricity markets, a sign that the appeals court is still struggling to decide the issue. Read more »

7th Circ. May Call On Indiana In Fantasy NCAA Athlete Row

Two Seventh Circuit judges considering whether to revive a proposed class action against DraftKings and FanDuel over their use of college athletes’ likenesses said Thursday they likely need the state of Indiana to weigh in on whether exemptions in its right of publicity law cover fantasy sports sites. Read more »

GSK Has Duty To Warn About Generics, Widow Tells 7th Circ.

The widow of a Reed Smith LLP partner who committed suicide after taking a generic version of GlaxoSmithKline LLC’s antidepressant Paxil urged the Seventh Circuit to preserve a verdict finding the company liable Wednesday, arguing GSK hasn’t shown it would have been barred from warning about the risks. Read more »

NINTH CIRCUIT

9th Circ. Won't Reopen 'Ballers' Copyright Suit

A Ninth Circuit panel Thursday affirmed a district court decision that tossed a copyright infringement suit against HBO, Mark Wahlberg and Dwayne “The Rock” Johnson over their “Ballers” series, agreeing with a federal judge's finding that the show had only vague similarities to a television project that had not been produced. Read more »

Drivers Slam Fee Bids By 'Ghost Lawyers' In $10B VW Deal

Hundreds of “ghost lawyers” who showed up at the $10 billion resolution of multidistrict litigation over Volkswagen AG’s diesel-emissions scandal shouldn’t get a cut of the awarded fees and costs since their work didn’t benefit the whole class, the vehicle owners told the Ninth Circuit on Thursday. Read more »

Converse Workers Ask 9th Circ. To Revive Bag Check Suit

A group of Converse Inc. employees urged the Ninth Circuit on Wednesday to revive a class action alleging they were owed money for time spent going through mandatory security inspections, saying a trial court judge wrongly concluded that the amount of uncompensated time was too nominal to keep the case alive. Read more »

9th Circ. Won't Alter $1.5M Atty Fees In Ford Defect Suit

The Ninth Circuit on Thursday upheld $1.5 million in attorneys’ fees awarded to a woman who accused Ford Motor Co. of neglecting to disclose acceleration defects in 150,000 vehicles, rejecting challenges from each of the parties. Read more »

Montana Forest Wildfire Project Gets 9th Circ.'s Blessing

The Ninth Circuit on Thursday gave the go-ahead to the U.S. Forest Service’s plan to reduce the wildfire threat in Montana’s Gallatin National Forest, overruling environmentalists’ arguments that the project would imperil the threatened Canada lynx. Read more »

Mexican Real Estate Co. Wants $15M Factory Suit Back In US

A Mexican industrial real estate buyer urged the Ninth Circuit on Wednesday to revive its suit accusing a Los Angeles private equity firm of concealing certain circumstances surrounding the sale of a $15 million manufacturing facility, saying an order sending the dispute to arbitration in Mexico has left it without a remedy. Read more »

TENTH CIRCUIT

Au Pair Co.'s Arbitration Clause Is 'One-Sided,' 10th Circ. Told

An au pair company shouldn’t be allowed to arbitrate individual class members’ claims, au pairs told the Tenth Circuit, saying that the district court judge was right to find arbitration clauses in their contracts unenforceable. Read more »

NEW YORK

NY Tells 2nd Circ. To Toss Couple's $5M Income Tax Appeal

The New York State Department of Taxation and Finance and other state agencies told the Second Circuit on Wednesday to reject a couple's suit alleging the agencies violated their constitutional right to live in separate states by requiring the couple to pay New York taxes on $5 million in capital gains from selling property in Florida. Read more »

CALIFORNIA

Calif. Panel Says Ex-Perkins Coie Atty Must Arbitrate Claims

A former Perkins Coie partner must arbitrate claims the law firm dipped into his wages without permission, a California appellate court said Wednesday, reversing a lower court's ruling that his work contract was unconscionable and its arbitration provision wasn't binding. Read more »

Calif. Justices Take Up Actavis' Opioid Suit Coverage Bid

California's highest court has agreed to review Actavis' challenge of a lower court's ruling that it isn't covered under a Travelers policy for lawsuits alleging its misleading marketing of painkillers has fueled the nation's opioid addiction problem and caused a spike in heroin use, according to a Wednesday docket entry. Read more »

TEXAS

Tex. Appeals Court Says Mining Co. Can Redo Atty DQ Bid

A Texas appellate court ruled Wednesday that Chilean mining company Inppamet deserved reconsideration on its bid to disqualify a Dallas law firm in a $60 million contract dispute with RSR Corp. after the state Supreme Court cleared the firm, finding that disqualification could be appropriate under a different standard. Read more »

Ford, Bridgestone Escape Fatal Crash Suit In Texas

Ford Motor Company, Bridgestone Americas Inc. and Bridgestone Americas Tire Operations LLC won their bid to duck a lawsuit brought by a family following a fatal car crash in Mexico, with a Texas appellate court holding on Thursday that Texas courts don't have jurisdiction over the case. Read more »

Doc Asks Texas Justices To Review Med Board Subpoenas

A Texas doctor who is facing an investigation into his care of three patients has asked the state Supreme Court to hear his constitutional challenge to billing record subpoenas issued by the state medical board. Read more »

Texas Panel Says Expert Testimony Dooms Med Mal Claim

Southwest Surgical Associates and one of its doctors escaped a malpractice suit brought by the family of a woman who died after treatment for a gangrenous left foot, with Texas' First Court of Appeals on Thursday holding that the expert's testimony meant to support the family's claims was insufficient. Read more »

FLORIDA

Pattern Of Disruptive Behavior Gets Fla. Lawyer Disbarred

From loudly kicking counsel's table, to muttering “lie, lie, lie” while opposing counsel examined a witness, to calling a female attorney a dominatrix, a Florida attorney's repeated disruptive and obnoxious behavior pushed the state's Supreme Court to order his disbarment Thursday. Read more »

PENNSYLVANIA

Analysis

Pa. Ruling May Spur More Class Suits Against In-State Cos.

In the wake of a recent Pennsylvania Supreme Court finding that nonresidents can sue Pennsylvania businesses over out-of-state transactions under the state’s consumer protection statute, experts expect a rise in the number of national class actions targeting Keystone State companies, which will test the court’s expectation that other legal principles will ward off unjustified claims. Read more »

Judge OKs $9.3M Settlement In Ambit Rate-Hike Suit

A Pennsylvania federal judge on Thursday greenlit a $9.3 million settlement of a proposed class action claiming an Ambit Energy Holdings LLC unit jacked up customers' rates after luring them into switching energy providers with promises of lower prices, a suit the Third Circuit revived after it was originally dismissed. Read more »

Pa. Appeals Court Won't Revive USA Tech Derivative Suit

A Pennsylvania appeals court said Thursday it would not revive a derivative lawsuit over inflated income reports by payment processor USA Technology Inc. as a result of the company’s failure to properly account for uncollectible debts from customers. Read more »

US Airways Owes Worker For Bus Injury, Pa. Court Says

A Pennsylvania appeals court issued a published decision Thursday allowing a US Airways flight attendant to receive workers' compensation benefits after she slipped while on a shuttle bus transporting her between a Philadelphia International Airport terminal and a city-owned employee parking lot. Read more »

NEW JERSEY

NJ Trampoline Park Loses Bid To Arbitrate Injury Claims

The New Jersey Appellate Division on Thursday denied a trampoline park's bid to force arbitration of claims that a boy was severely injured at the facility, finding that neither an agreement signed by his friend's mother nor a prior agreement signed by his mother were enforceable in the matter. Read more »

NJ Sens. Move Bill To Raise $300M In Nuke Plant Subsidies

A New Jersey legislative committee on Thursday released a bill that would establish a $300 million nuclear plant subsidy from ratepayers in what advocates say will ensure the viability of two Public Service Enterprise Group Inc. power plants and advance the state’s clean energy goals. Read more »

Sam's Club Can't Escape $1M Verdict Over Woman's Injury

Sam's Club again lost its challenge to a $1 million verdict for a customer left scarred and limping after injuring her leg at a New Jersey store, with a state appeals court saying Thursday that the business failed to show the award constitutes a miscarriage of justice. Read more »

DELAWARE

Del. Gov. Skirting Ruling On Court Party Makeup, Suit Says

The man who won a federal court decision in December against Delaware’s requirement for political party balance on its judicial bench appointments accused Gov. John Carney on Wednesday of ignoring the ruling with a recent notice about a vacancy. Read more »

GEORGIA

Ga. Court Says Doc’s Murder Trial Needn’t Halt Civil Suit

A Georgia appeals court ruled Wednesday that a criminal homicide case against a doctor is not reason enough to delay a parallel civil case that accuses the doctor of causing a woman's death by overprescribing medications. Read more »

VIRGINIA

Va. Supreme Court Overturns Patient’s $652K Med Mal Verdict

The Virginia Supreme Court on Thursday overturned a jury verdict which found a doctor liable for injuries suffered by a woman due to an alleged botched hysterectomy, saying the patient failed to present any evidence at trial that the doctor proximately caused her injury. Read more »

WASHINGTON

Wash. Landowners Say Tribe Can't Escape Property Suit

A Washington state couple urged the U.S. Supreme Court on Wednesday not to overturn a state court decision that the Upper Skagit Indian Tribe must face the couple's land ownership suit, saying that doing so would improperly expand the tribe's sovereign immunity at the expense of Washington's own sovereignty. Read more »

EXPERT ANALYSIS

A Recurring Problem In Patentability Of Computer Software

In its discussion of the "abstract ideas" exception, Alice relied on Bilski. But the historical precedent cited by Bilski does not support the current patent regime. Courts should return to a clear delineation between patent-ineligible laws of nature and mathematical expressions thereof, and patent-eligible novel and useful inventions made by man, say Benjamin Hattenbach and Rosalyn Kautz of Irell & Manella LLP. Read more »

LEGAL INDUSTRY

Ex-Foley & Lardner Partner Gets Prison For Insider Trading

Former Foley & Lardner LLP real estate partner Walter “Chet” Little was sentenced on Thursday to over two years in prison for insider trading, following his admission that he cashed in on confidential merger information about the law firm’s clients. Read more »

Feature

How Cannabis GCs Are Leading The Way In A Legal Gray Area

As a once black-market industry continues to grow in both legitimacy and size, and with it, a corresponding surge in legal needs, the first generation of general counsel at state-legal U.S. marijuana companies are on the front lines of the new and volatile field of cannabis law. Read more »

Law360's Weekly Verdict: Legal Lions & Lambs

Williams & Connolly earned a spot on this week's legal lions list after the law firm secured a U.S. Supreme Court opinion in favor of its client narrowing the definition of the term "whistleblower," while Jones Day ended up on the legal lambs list after a federal judge dismantled its client's $2.5 billion jury verdict in an infringement suit over a hepatitis C drug patent. Read more »

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COMPANIES

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Pfizer Inc.

Pixar Inc.

Public Service Enterprise Group Inc.

Sam's Club

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Starbucks Corporation

Talen Energy Corp.

The Coca-Cola Company

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Thermo Fisher Scientific Inc.

TranS1 Inc.

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United Food & Commercial Workers Int'l Union

Verizon Communications

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Whiting Petroleum Corp.

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