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Appellate
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November 22, 2024
Split DC Circ. Punts On FINRA's Constitutionality
A partially divided D.C. Circuit panel on Friday blocked the Financial Industry Regulatory Authority from removing Alpine Securities Corp. from its membership rolls while the corporation sues in federal court to challenge the agency's constitutionality, which the appeals court declined to remark on.
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November 22, 2024
Pam Bondi's 'Greatest Hits' As Florida Attorney General
In her eight years as attorney general of Florida, Pam Bondi — who has been tapped by President-elect Donald Trump as attorney general — took on pill mills and telemarketing scams targeting the state's large elderly population, while also leading GOP state efforts to battle the Obama administration.
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November 22, 2024
Retirement Contributions Found Not Disposable In Ch. 13
A split Ninth Circuit on Friday held that voluntary contributions to employer-managed retirement plans are not disposable income under Chapter 13 bankruptcy, reversing a lower court's decision that required a debtor to include $484 in monthly retirement contributions in her disposable income.
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November 22, 2024
Taco Bell's 'Inconsistent' Stance Revives Fla. Fall Suit
A Florida state appellate court on Friday reversed a ruling that tossed a slip-and-fall injury lawsuit against Taco Bell, citing the restaurant's "logically inconsistent" position admitting that a customer ignored a freshly mopped restroom floor but proceeded to dispute that the floor was actually wet.
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November 22, 2024
Texas Justices Say Court Bungled Ruling In Abortion Case
The Texas Supreme Court said Friday a lower appellate court tried to "prematurely drag the judiciary into highly contentious and politicized debates" around abortion without analyzing a key standing issue, jeopardizing Planned Parenthood's and other abortion rights groups' bid to invalidate the controversial Texas Heartbeat Act.
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November 22, 2024
11th Circ. Panel Weighs Remanding Florida Trans Health Fight
The Eleventh Circuit on Friday appeared unlikely to affirm a lower court's ruling to invalidate a Florida state law banning Medicaid payments for gender-affirming medical care, with two judges on the panel asking attorneys for specifics about additional analysis of discriminatory factors on a potential remand.
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November 22, 2024
High Court Bar's Future: Sullivan & Cromwell's Morgan Ratner
Morgan L. Ratner has emerged as a leader of the U.S. Supreme Court bar's next generation, and she attributes her ascent to brilliant mentors, a laid-back argument style, an aversion to overconfidence and a firm commitment to clear principles in every case — even if that means reluctantly telling the chief justice, as she once did, that a hypothetical cat stuck in a tree shouldn't be saved.
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November 22, 2024
Texas Supreme Court Sends 130-Car Pileup Suit To Trial
The Texas Supreme Court on Friday denied a petition from several defendants involved in a fatal 130-car ice storm pileup in Fort Worth to temporarily stay an upcoming trial date, teeing up the trial to begin in January, almost four years after the tragedy.
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November 22, 2024
Service Fees Not 'Incidental' To Debt Collection, 11th Circ. Told
Ocwen Loan Servicing LLC urged the Eleventh Circuit on Friday to reverse two Florida lower court judgments finding it violated debt collection practices with a fee to process phone or internet payments, saying it's not an illegal "incidental" charge because the borrower is paying for an optional service.
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November 22, 2024
Calif. Panel Affirms Six Flags' Trial Win In Coaster Injury Case
Six Flags isn't liable for a woman's injury after her hand was crushed by a railing while waiting to get on the Twisted Colossus roller coaster, California appellate justices said Thursday, finding the park didn't have a heightened duty of care since she was injured before she got on the ride.
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November 22, 2024
Texas Panel Says Gender-Affirming Surgery Suit Too Late
A Texas appellate court has backed a counselor's win in a lawsuit from a former client who came to regret undergoing a double mastectomy following the counselor's recommendation for gender-affirming surgery, finding the claims were time-barred.
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November 22, 2024
Nissan Automatic Brake Classes Dismantled By 6th Circ.
A Sixth Circuit panel vacated class certification Friday for Nissan drivers who say their cars' automatic braking system activates unnecessarily, finding the trial judge failed to grapple with software upgrades that may have fixed the alleged flaw for some of the class vehicles.
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November 22, 2024
Feds Slam Utah High Court Case Over Fed. Land Ownership
The federal government called on the Supreme Court to reject Utah's attempt to file a complaint accusing it of unconstitutionally hoarding and profiting from public lands in the state, saying the justices should decline to exercise original jurisdiction over the matter.
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November 22, 2024
EEOC Backs Rehab Worker's Retaliation Case At 10th Circ.
The U.S. Equal Employment Opportunity Commission on Friday urged the Tenth Circuit to revive an occupational therapist's lawsuit claiming a colleague inappropriately touched her and that she was fired after she reported the co-worker's harassment, arguing the trial court used the wrong standard when it tossed her retaliation claim.
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November 22, 2024
Senior Dem Asks Schumer For Votes On Circuit Court Picks
Sen. Mazie Hirono, D-Hawaii, a senior member of the Senate Judiciary Committee, on Friday pushed back against a deal Democrats and Republicans cut earlier this week that obligates Democrats to forgo votes on four appellate picks.
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November 22, 2024
Mich. Justices Want To Know If 3M Water Challenge Is Moot
The Michigan Supreme Court ordered additional briefing Friday in 3M Co.'s challenge to regulations on PFAS in drinking water to address whether subsequent regulatory changes made 3M's lawsuit moot, echoing a focal point of last week's oral arguments in the case.
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November 22, 2024
Federal Circuit Backs Philip Morris' Electronic Pipe IP Win
The Federal Circuit on Friday refused to revive claims in an electronic pipe patent that was challenged by Philip Morris, backing a Patent Trial and Appeal Board finding that language in the patent could be found in older patent paperwork.
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November 22, 2024
Bondi Vowed Trump Payback. Ex-Colleagues Aren't Worried.
U.S. attorney general nominee Pam Bondi is an outspoken ally of President-elect Donald Trump and vowed during the campaign that his "prosecutors will be prosecuted," but people who've worked with her say she's well qualified to serve as the nation's top cop and downplayed concerns that she would politicize the U.S. Department of Justice.
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November 22, 2024
Texas Justices Say Paxton Can Duck Whistleblower Suit Depo
The Texas Supreme Court said Friday that Texas Attorney General Ken Paxton doesn't have to sit for a deposition in the long-running employment retaliation suit brought by his former top deputies, partially agreeing with his contention there are no longer any factual disputes in the case.
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November 22, 2024
Newsom Names Appellate Judges In SF And Orange County
California Gov. Gavin Newsom has tapped two long-tenured trial court judges for positions on the state's appellate benches, one in San Francisco, the other in Orange County.
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November 22, 2024
1st Circ. Affirms Volvo Win In Dealers' Maintenance Pay Suit
The First Circuit affirmed a pretrial win granted to Volvo in a suit brought by two dealerships claiming the carmaker was underpaying them for maintenance they perform under prepaid service plans.
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November 22, 2024
Fed. Circ. Won't Rethink Toppling Tire Verdict
The Federal Circuit has declined to rethink a ruling last month that upended what was once a multimillion-dollar jury verdict in a decadelong tire design dispute, rejecting the argument that the judges "overlooked and misapprehended Illinois law" on the matter of "litigation privilege."
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November 22, 2024
High Court To Review Legality Of FCC's Subsidy Fees
The U.S. Supreme Court agreed Friday to review whether fees collected to support the Federal Communications Commission's array of telecom subsidy programs for low-income consumers, schools and rural healthcare run afoul of constitutional limits on taxing authority.
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November 22, 2024
Lender Can't Arbitrate Fired Worker's Suit Over Cancer Leave
A California appeals court upheld a trial court's order that a mortgage lender cannot arbitrate a worker's suit alleging she was wrongfully fired after a cancer diagnosis, ruling the former employee cast enough doubt about the signature on the deal to keep her case in court.
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November 22, 2024
1st Circ. Backs Auction For Bankrupt Farmer's Milk Quota
The First Circuit has affirmed a Puerto Rico regulator's ability to order the sale of a dairy farmer's milk quota despite his pending bankruptcy, ruling the action wasn't blocked by a stay blocking actions that can affect a bankruptcy estate.
Expert Analysis
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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.
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Series
Playing Diplomacy Makes Us Better Lawyers
Similar to the practice of law, the rules of Diplomacy — a strategic board game set in pre-World War I Europe — are neither concise nor without ambiguity, and weekly gameplay with our colleagues has revealed the game's practical applications to our work as attorneys, say Jason Osborn and Ben Bevilacqua at Winston & Strawn.
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5th Circ. Shows Admin Rules Can Survive Court Post-Chevron
The Fifth Circuit's textual analysis of the Fair Labor Standards Act, contributing to its recent affirming of the U.S. Department of Labor’s authority to set an overtime exemption salary threshold, suggests administrative laws can survive post-Chevron challenges, say Jessi Thaller-Moran and Erin Barker at Brooks Pierce.
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Open Questions In Unsettled Geofence Warrant Landscape
The Fourth and Fifth Circuits recently reached radically divergent conclusions about the constitutionality of geofence warrants, creating an uncertain landscape in which defendants should assert and preserve the full range of conventional Fourth Amendment challenges, says Charles Fowler at McKool Smith.
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Applying High Court's Domestic Corruption Rulings To FCPA
After the U.S. Supreme Court narrowed the domestic corruption statutes in three decisions over the past year and a half, it’s worth evaluating whether these rulings may have an impact on Foreign Corrupt Practices Act enforcement, and if attorneys can use the court’s reasoning in international bribery cases, says James Koukios at MoFo.
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Bid Protest Spotlight: Debriefings, Timeliness, Documentation
James Tucker at MoFo examines three recent decisions from the Federal Circuit, the U.S. Government Accountability Office and the U.S. Court of Federal Claims concerning an agency's decision not to hold post-award discussions, a timeliness trap in certain Federal Supply Schedule procurements and the importance of providing contemporaneous documentation in price-evaluation protests.
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Conn. Court Split May Lead To Vertical Forum Shopping
As shown by a recent ruling in State v. Exxon Mobil, Connecticut state and federal courts are split on personal jurisdiction, and until the Connecticut Supreme Court steps in, parties may be incentivized to forum shop, causing foreign entities to endure costly litigation and uncertain liability, says Matthew Gibbons at Shipman & Goodwin.
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Mental Health First Aid: A Brief Primer For Attorneys
Amid a growing body of research finding that attorneys face higher rates of mental illness than the general population, firms should consider setting up mental health first aid training programs to help lawyers assess mental health challenges in their colleagues and intervene with compassion, say psychologists Shawn Healy and Tracey Meyers.
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Fla. Insurer-Breach Cases Split On Unrepaired Property Issue
A Florida appellate court's recent decision in Universal v. Qureshi is directly at odds with a 2020 decision from another Florida appellate court, and raises important questions for policyholders and insurers about the proper measure of damages in breach claims involving unrepaired property, say Andrea DeField and Yaniel Abreu at Hunton.
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Revisiting The Crime-Fraud Exception After Key Trump Cases
Evidence issues in the Jan. 6 Capitol riot and classified documents cases involving former President Donald Trump offer an opportunity to restudy elements and implications of the crime-fraud exception to attorney-client privilege and the work product doctrine, noting the courts' careful scrutiny of these matters, say Robert Hoff and Paul Tuchmann at Wiggin and Dana.
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Enviro Policy Trends That Will Continue Beyond The Election
Come October in a presidential election year, the policy world feels like a winner-take-all scenario, with the outcome of the vote determining how or even whether we are regulated — but there are several key ongoing trends that will continue to drive environmental regulation regardless of the election results, say J. Michael Showalter and Samuel Rasche at ArentFox Schiff.