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Appellate
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January 28, 2025
4th Circ. Raises Questions Over Health Data Access Order
A Fourth Circuit panel focused Tuesday on whether an exception to federal law barring electronic health record companies from blocking the exchange of patient data applies to a request from Real Time Medical Systems to access nursing home data from PointClickCare.
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January 28, 2025
Texas Judge OKs $40M Settlement In Six Flags Expansion Suit
A Texas federal judge indicated Tuesday that he would approve a $40 million class settlement between Six Flags Entertainment Corp. and investors accusing the amusement park operator of bungling expansion plans in China — after having previously dismissed the case twice.
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January 28, 2025
4th Circ. Wary Of Discrimination Claims In Pot License Row
The Fourth Circuit on Tuesday expressed skepticism about claims that Maryland's cannabis regulator discriminated against out-of-state entrepreneurs when it implemented a social equity program that gave consideration to applicants who attended one of six in-state colleges.
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January 28, 2025
Pharma Co. Gets Final Shot To Ax NC Contract Breach Suit
A pharmaceutical company can make another attempt to escape a software developer's suit alleging he was duped into selling his technology to the company, the North Carolina Business Court has said, months after the state's top court revived the software maker's breach of contract claims.
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January 28, 2025
Wash. Judge Asks If Dr.'s Ivermectin Discipline Was Political
A Washington appellate judge asked Tuesday if a doctor who was disciplined by a medical board for prescribing the controversial drug ivermectin to COVID-19 patients was targeted for his political views, while another judge asked if "all lies" about medical information are protected speech.
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January 28, 2025
7th Circ. Considers Faith Of 2-Step Collective Certification
A Seventh Circuit panel considered Tuesday whether to keep or ditch the two-step certification process for collectives, with one judge calling Eli Lilly & Co.'s decertification argument in an age discrimination suit "spectacularly wrong" and another asking how tolling could change.
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January 28, 2025
5th Circ. Revives Arb. Bid In Saudi Arabia Oil Project Row
A Louisiana federal judge wrongly nixed a bid to send a dispute stemming from a Saudi Arabian oil and gas project to arbitration after the administering institution named in an underlying subcontract was dissolved, the Fifth Circuit ruled in a published opinion.
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January 28, 2025
Amid Big Bets, Tom Goldstein Argued 'Poker Is Not Gambling'
A federal indictment's jarring portrayal of pioneering U.S. Supreme Court advocate Tom Goldstein as an "ultrahigh-stakes" gambler who dodged taxes has left the legal community virtually speechless. But Goldstein's status as a serious poker player was not a secret, and in past court cases, he proclaimed the card game "fundamentally dissimilar" from conventional gambling, even while preparing to wager millions on matches.
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January 28, 2025
Prison Phone Providers Urge 1st Circ. To Back FCC Rate Suit
Prison telephone companies are asking the First Circuit to either move their challenge to new Federal Communications Commission prison payphone rate caps to the conservative Fifth Circuit or toss the limits themselves, saying the caps violate a congressional provision that the companies be "fairly compensated" for service in detention facilities.
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January 28, 2025
Nestle Plant Can Switch Power Providers, Ga. Justices Rule
The Supreme Court of Georgia ruled Tuesday that Nestle should have been allowed to switch electricity providers from Georgia Power to Walton EMC after renovating a former warehouse facility in Hartwell, Georgia.
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January 28, 2025
'Right To Hug' Case In Michigan Draws ACLU Support
The American Civil Liberties Union and 15 other organizations urged a Michigan appeals court to hold that children have a right to in-person visits with their incarcerated parents, describing in a friend-of-the-court brief the long-lasting psychological effects of isolating child from parent.
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January 28, 2025
Calif. Panel Says Workers Can Be Added To $935K Wage Deal
A California state appeals court declined to upend an order allowing the reopening of a $935,000 settlement that resolved workers' wage and hour lawsuit against an aerospace company, saying the employer failed to show that unionized employees were correctly exempted from the deal.
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January 28, 2025
'Godfather' Of AG Defense Retiring From Cozen O'Connor
Bernard "Bernie" Nash, an attorney who pioneered the practice of defending companies against investigations by state attorneys general, is retiring from Cozen O'Connor and handing over the reins to his handpicked successors after nearly 50 years in private practice.
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January 28, 2025
Connecticut High Court Chief Justice Pick Gets Confirmed
State lawmakers on Tuesday confirmed Connecticut Supreme Court interim Chief Justice Raheem L. Mullins to sit in the top seat for a full eight-year term, defeating concerns from some Republicans about his stance on gunmaker liability.
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January 28, 2025
Guns Owners Urge Justices To Throw Out NY Carry Law
Members of the Gun Owners of America Inc. have petitioned the U.S. Supreme Court to overturn a New York carry law that the Second Circuit largely upheld last year, arguing that the lower appellate court's ruling "doubled down" on erroneous conclusions already vacated the last time the justices heard the case.
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January 28, 2025
Texas Panel Wipes Baylor's $12M COVID Insurance Verdict
An appellate panel wiped a $12 million jury verdict in favor of Baylor College of Medicine on Tuesday, writing that it was joining "the vast majority of courts" in ruling that the university's insurance policy didn't cover COVID-19 losses.
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January 28, 2025
Pa. Bank Regulator Claims Co. Hid Affiliation, Misused Privilege
A Texas debt-settlement company should be sanctioned for failing to disclose its alleged affiliation with another debt consolidator and for invoking attorney-client privilege when pressed about how its general counsel complied with a subpoena, Pennsylvania's banking regulator told a state court Tuesday.
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January 28, 2025
'Transformative' System Coming To Ga. Courts, Justice Says
A new statewide case management system for Georgia's superior and state courts should be functional by the end of the year, the state's chief justice told legislators during his third State of the Judiciary address in Atlanta on Tuesday, amid warnings of judicial threats and court reporter shortages.
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January 28, 2025
Vivint 'Kicking Dead Horse' In $190M TM Suit, 4th Circ. Hints
Smart home software company Vivint faced an uphill battle Tuesday trying to convince the Fourth Circuit to dismantle a nearly $190 million verdict for allegedly tricking its rival's customers into switching providers, with one judge saying Vivint's claims that the lower court misapplied state consumer protection law are fruitless.
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January 28, 2025
Menendez Says Any Prison Time Should Wait For Appeal
Former U.S. Sen. Robert Menendez told a Manhattan federal judge ahead of his sentencing hearing Wednesday that any prison term should be delayed until after his appeal of his bribery conviction plays out, saying the Second Circuit could well rule in his favor.
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January 28, 2025
6th Circ. Seems Cold To Dairy Queen Franchisee's Sale Appeal
A Sixth Circuit panel appeared skeptical Tuesday that Dairy Queen violated the terms of a franchise agreement with the owners of a dozen restaurant locations in Michigan by blocking the proposed sale of two stores.
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January 28, 2025
Pa. Justices Won't Hear 3rd Circ. Pot Deportation Question
In a split decision, the Pennsylvania Supreme Court has opted not to take up a question from the Third Circuit on whether a man from the Dominican Republic can be automatically deported for a possession with intent to deliver charge without specific proof of the drug he had in his possession.
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January 28, 2025
Wynn Fraud Trial Still On As Appeals Court Declines To Step In
A Wynn Resorts subsidiary cannot challenge a decision allowing a trial on accusations that it misled the former owner of the site of its Encore Boston Harbor casino into cutting the property's sale price by $40 million, the state's intermediate-level appeals court has ruled.
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January 27, 2025
5th Circ. Wipes Out FTC Rule Targeting Auto Industry Scams
A split Fifth Circuit panel on Monday vacated the Federal Trade Commission's Combating Auto Retail Scams, or CARS, rule prohibiting bait-and-switch tactics and hidden charges in the car buying and leasing process, siding with car dealers and finding that the FTC didn't give adequate notice of the proposed rulemaking.
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January 27, 2025
'It's Complicated': 4th Circ. Baffled Over NC Ballot Fight
The Fourth Circuit on Monday sought to wade through a procedural quagmire over whether a legal challenge involving North Carolina's contested associate justice race belongs in state or federal court, questioning how to proceed after the Tar Heel State's top court last week all but dismissed the matter.
Expert Analysis
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Can SEC's Consolidated Audit Trail Survive Post-Chevron?
The U.S. Securities and Exchange Commission is currently in a showdown at the Eleventh Circuit over its authority to maintain a national market system and require that the industry spend billions to maintain its consolidated audit trail, a case that is further complicated by the Loper Bright decision, says Daniel Hawke at Arnold & Porter.
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'Minimum Contacts' Issues At Stake In High Court FSIA Case
In CC/Devas v. Antrix, the U.S. Supreme Court must decide whether a "minimum contacts" requirement should be implied in the Foreign Sovereign Immunities Act, with the potential to dramatically change the legislative landscape through the establishment of a new and significant barrier to U.S. suits against foreign states, say attorneys at WilmerHale.
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2nd Circ. American Girl Ruling Alters Test Purchase Norms
The Second Circuit's recent ruling in American Girl v. Zembrka overturns years of precedent that required completed test purchase shipments to establish jurisdiction in infringement cases, but litigators shouldn't abandon the strategy entirely, say Robert Wasnofski and Sara Gates at Dentons.
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State Of The States' AI Legal Ethics Landscape
Over the past year, several state bar associations, as well as the American Bar Association, have released guidance on the ethical use of artificial intelligence in legal practice, all of which share overarching themes and some nuanced differences, say Eric Pacifici and Kevin Henderson at SMB Law Group.
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Cos. Face Increasing Risk From Environmental Citizen Suits
Environmental citizen suits stepping in to fill the regulatory vacuum concerning consumer goods waste may soon become more common, and the evolving procedural landscape and changes to environmental law may contribute to companies' increased exposure, say J. Michael Showalter and Bradley Rochlen at ArentFox Schiff.
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11th Circ. Kickback Ruling May Widen Hearsay Exception
In a $400 million fraud case, U.S. v. Holland, the Eleventh Circuit recently held that a conspiracy need not have an unlawful object to introduce co-conspirator statements under federal evidence rules, potentially broadening the application of the so-called co-conspirator hearsay exception, say attorneys at ArentFox Schiff.
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8 Childhood Lessons That Can Help You Be A Better Attorney
A new school year is underway, marking a fitting time for attorneys to reflect on some fundamental life lessons from early childhood that offer a framework for problems that no legal textbook can solve, say Chris Gismondi and Chris Campbell at DLA Piper.
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2 Rulings Show How Courts Assess Health Benefit Denials
Two recent decisions from federal appeals courts offer important insights into how courts are assessing denials of health benefit claims brought under the Employee Retirement Income Security Act, including guidance on how plan administrators should evaluate claims and what documents must be disclosed, says Mark DeBofsky at DeBofsky Law.
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2nd Circ. Provides NY Pathway For Fighting Foreign Infringers
A recent decision from the U.S. Court of Appeals for the Second Circuit provides a road map for expeditiously obtaining personal jurisdiction in New York against foreign trademark infringers based on a single purchase of counterfeit goods, meaning the Second Circuit could now be the preferred venue for combating foreign infringement, says Jeffrey Ratinoff at Spencer Fane.
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Recent Securities Cases Highlight Risks In AI Disclosures
Increasing public disclosure about the use and risks of artificial intelligence, and related litigation asserting that such disclosures are false or misleading, suggest that issuers need to exercise great care with respect to how they describe the benefits of AI, say Richard Zelichov and Danny Tobey at DLA Piper.
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Sublimit And Policy Interpretation Lessons From Amtrak Case
The recently settled dispute between Amtrak and its insurers over sublimit coverage illustrates that parties with unclear manuscript policies may wish to avoid litigation in favor of settlement — as the New York federal court declined to decide the case by applying prior term interpretations, says Laura Maletta at Chartwell Law.
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3rd Circ. Hertz Ruling Highlights Flawed Bankruptcy Theory
The Third Circuit, in its recent Hertz bankruptcy decision, became the latest appeals court to hold that noteholders were entitled to interest before shareholders under the absolute priority rule, but risked going astray by invoking the flawed theory of code impairment, say Matthew McGill and David Casazza at Gibson Dunn.
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Opinion
Barrett Is Right: Immunity Is Wrong Framework In Trump Case
Justice Amy Coney Barrett’s concurrence in Trump v. U.S., where the majority opinion immunized former presidents almost entirely from criminal prosecution for official actions, rests on a firmer constitutional foundation than the majority’s immunity framework, says Matthew Brogdon at Utah Valley University.
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Opinion
This Election, We Need To Talk About Court Process
In recent decades, the U.S. Supreme Court has markedly transformed judicial processes — from summary judgment standards to notice pleadings — which has, in turn, affected individuals’ substantive rights, and we need to consider how the upcoming presidential election may continue this pattern, says Reuben Guttman at Guttman Buschner.
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A Look At The PTAB's Assessment Of Prior Art Exceptions
The Patent Trial and Appeal Board's approach over the last 10 years to assessing Section 102(b) prior art exceptions reveals a few trends, including that evidence of common ownership may have a higher likelihood of successfully disqualifying prior art under Section 102(b)(2)(C) at the institution stage, say Louis Panzica and David Holman at Sterne Kessler.