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Appellate
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May 29, 2024
2nd. Circ. Casts Off 'Now-Casting' Trademark Claims
The Second Circuit has prevented Economic Alchemy LLC from reviving its trademark claims against the Federal Reserve and others over the use of the term "Now-Casting."
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May 29, 2024
6th Circ. Won't Consider Appeal Over Fatal Walmart Shooting
The Sixth Circuit on Wednesday rejected a challenge to the dismissal of a wrongful death claim against Walmart by the family of a man killed by police, ruling the lower court shouldn't have certified dismissal for immediate review because the same set of facts underlie unresolved claims remaining for trial.
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May 29, 2024
5th Circ. Sends Hain Toxic Baby Food Suit To State Court
Grocery store chain Whole Foods Market Inc. and international food company Hain Celestial Group Inc. can't escape a lawsuit seeking to hold them liable for the mental and physical decline of a toddler, allegedly caused by tainted baby food they sold, the Fifth Circuit ruled, saying the case was improperly removed to federal court.
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May 29, 2024
PBMs Urge Ohio Suit Stay For Supreme Court Ruling
Two pharmacy benefits managers want the Sixth Circuit to put its appeal on hold in an Ohio-led case accusing them of working together to drive up the cost of medications while the U.S. Supreme Court decides another case that also has to do with federal versus state jurisdiction.
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May 29, 2024
2nd Circ. Unsure If Error Kept Murder Exonerees' Case Alive
A Second Circuit judge expressed doubt Wednesday that a lower court erred in declining to grant qualified immunity to two Connecticut police officers whose actions allegedly contributed to the wrongful convictions of two men for a 1985 murder, noting that a key piece of evidence challenging prosecutors' theory remains shrouded in mystery.
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May 29, 2024
11th Circ. Backs SEC Win In Trader's Challenge To 'Dealer' Tag
An Eleventh Circuit panel on Wednesday affirmed the U.S. Securities and Exchange Commission's win in a suit accusing a microcap stock trader of earning $21.5 million while operating as an unregistered dealer, further solidifying the regulator's argument that so-called toxic lenders are considered unregistered dealers.
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May 29, 2024
9th Circ. Revives Bulk Of Walmart Worker's Disability Bias Suit
The Ninth Circuit on Wednesday reversed most of a district court's ruling in favor of Walmart on claims by a vision-impaired employee that the retail giant didn't let him return to work after a medical leave of absence, saying the employee presented evidence suggesting Walmart lied about the reasons why he couldn't return.
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May 29, 2024
Split 3rd Circ. Affirms Court's Revision To $10M SEC Deal
A split Third Circuit panel has affirmed a district court's decision to revise a nearly $10 million consent judgment between the U.S. Securities and Exchange Commission and a man it accused of misappropriating millions from a private equity fund after he was found in contempt of the judgment.
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May 29, 2024
ND Lawmakers Oppose High Court Review In Subpoena Row
Two North Dakota tribes' effort to toss an Eighth Circuit ruling voiding subpoenas on state lawmakers as part of Voting Rights Act litigation isn't worthy of U.S. Supreme Court review, the North Dakota State Legislative Assembly said Wednesday in urging the high court not to take up the case.
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May 29, 2024
NC State Is Blocking Probe Of PCBs In Building, Court Told
North Carolina State University is trying to exploit the judicial process in order to destroy evidence of building contamination, a cancer-stricken professor told a state appeals court Tuesday in a bid to advance plans for a carcinogen inspection.
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May 29, 2024
Microsoft's Post-Merger Layoffs Cited In I-Told-You-So Appeal
A private group of gamers is pointing to Microsoft's recent layoffs of 1,900 Activision and XBox employees as evidence of market harms stemming from Microsoft Corp.'s acquisition of Activision Blizzard Inc., as the group seeks to revive a private antitrust suit challenging the merger in the Ninth Circuit.
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May 29, 2024
MGM Gambler's Missing $3M Heads To Mich. Supreme Court
The Michigan Supreme Court said Wednesday it will consider whether a state law governing online gambling preempts a woman's lawsuit claiming MGM's online betting arm refused to pay her $3.2 million in winnings from online roulette, after the casino said the payout was a mistake.
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May 29, 2024
Feds, Dreamers Tell 5th Circ. That Fight For DACA Isn't Over
The Biden administration and recipients of the Deferred Action for Childhood Arrivals program urged the Fifth Circuit to reverse an order that held the program unlawful, saying the program has a chance of surviving in light of recent U.S. Supreme Court rulings.
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May 29, 2024
News Orgs. Say State 'Eclipsing' Honesty In Uvalde Doc Row
A coalition of news outlets led by the Texas Tribune told an appeals court Tuesday that the state's request to seal its appellate brief in a long-running dispute over records related to the 2022 mass shooting at Robb Elementary School in Uvalde is an attempt by law enforcement to "eclipse" transparency into the tragedy.
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May 29, 2024
NY Attys Back Bid For Justices To Hear Double-Patenting Row
A petition looking to persuade the U.S. Supreme Court to wade into a double-patenting dispute has received support from a trade group of New York patent lawyers.
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May 29, 2024
TikTok Ban Gets Expedited Sept. Hearing Date At DC Circ.
The D.C. Circuit on Tuesday agreed to expedite the briefing schedule for a constitutional challenge against a federal law banning TikTok from the United States unless it severs its ties with its Chinese parent company, ByteDance Ltd., with oral arguments set to be heard this fall.
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May 29, 2024
PJM Watchdog Challenges FERC's Meeting Roadblock
Monitoring Analytics, the independent market monitor for regional transmission organization PJM Interconnection, is asking the D.C. Circuit to review a Federal Energy Regulatory Commission order from March allowing PJM to keep the monitor out of its liaison committee meetings.
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May 29, 2024
Teacher's Contract Renewal Claim Spiked By Ga. Justices
The Supreme Court of Georgia ruled Wednesday that a teacher can't sue his former district for denying him a contract renewal after he missed its due date, finding that the lack of a definitive salary figure in the offer doesn't conflict with state law.
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May 29, 2024
Fed. Circ. Backs Claim Invalidity In Express Mobile Web Patent
The Federal Circuit has backed a Patent Trial and Appeal Board decision that a single claim of an Express Mobile website generation patent was invalid as obvious based on earlier inventions.
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May 29, 2024
Wash. Panel Ends Quest Diagnostics' COVID Coverage Quest
Quest Diagnostics' insurers don't owe the medical testing lab COVID-19-related business loss coverage, a Washington appeals court said, ruling the company failed to show that the presence of the virus resulted in physical loss or damage to its property.
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May 29, 2024
9th Circ. Rejects Objections To $23M Monsanto Roundup Deal
The Ninth Circuit on Wednesday affirmed a district court's approval of a $23 million MDL settlement to resolve claims that Monsanto failed to warn buyers of the carcinogens in its Roundup weed killer, finding there was no indication of collusion as argued by Missouri-based objectors.
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May 29, 2024
Google Rips Sonos Bid To Revive $32M Patent Verdict
Google is urging the Federal Circuit to reject Sonos' claim that a California federal court endangered thousands of patents when it threw out a jury's $32.5 million infringement verdict in the smart speaker maker's favor, with the tech giant arguing that Sonos is not entitled to patent protection for audio features that the company waited years to disclose.
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May 29, 2024
4th Circ. Rejects Atty Fee Bid In Fight Over Ted Nugent Photo
The Fourth Circuit has denied a photographer's application for attorney fees after Bricker Graydon LLP helped him secure a favorable ruling in his legal battle over a news website's allegedly unauthorized use of a Ted Nugent photo he took in an article titled, "15 Signs Your Daddy Was A Conservative."
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May 29, 2024
Non-Atty Advice To Debtors Is Unprotected, 2nd Circ. Told
New York urged the Second Circuit on Wednesday to find that stopping a nonprofit focused on bankruptcy education and the South Bronx pastor it's working with from advising low-income debtors represents a content-neutral regulation on who can practice law that does not violate the First Amendment.
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May 29, 2024
8th Circ. Backs Ark. Landowners' Jury Win In Flooding Suit
The Eighth Circuit has upheld a group of Arkansas landowners' nearly $350,000 jury win in their lawsuit accusing Lawrence County of building a bridge that caused flooding that damaged their crops.
Expert Analysis
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Ill. Justices' Ruling Answers Corporate Defamation Questions
The Illinois Supreme Court's recent unanimous decision in Project44 v. FourKites provides needed certainty and direction for lower courts considering defamation cases involving communications to corporate officers from third parties outside the corporation, which could result in fewer unwarranted motions to dismiss in trial courts and nonmeritorious appeals, says Phillip Zisook at Schoenberg Finkel.
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As Arbitrator Bias Claims Rise, Disclosure Standards Evolve
The growth in post-award challenges based on arbitrators' alleged conflicts of interest has led to the release of new guidance and new case law on the topic — both supporting the view that professional familiarity alone does not translate to a lack of impartiality, say attorneys at Skadden.
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6th Circ. Bias Ruling Shows Job Evaluations Are Key Defense
In Wehrly v. Allstate, the Sixth Circuit recently declined to revive a terminated employee’s federal and state religious discrimination and retaliation claims, illustrating that an employer’s strongest defense in such cases is a documented employment evaluation history that justifies an adverse action, says Michael Luchsinger at Segal Mccambridge.
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Social Media Free Speech Issues Are Trending At High Court
The U.S. Supreme Court's recent decision examining what constitutes state action on social media can be viewed in conjunction with oral arguments in two other cases to indicate that the court sees a need for more clarity regarding how social media usage implicates the First Amendment, say attorneys at Kean Miller.
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The Fed. Circ. In April: Hurdles Remain For Generics
The Federal Circuit’s recent Salix v. Norwich ruling — where Salix's brand-name drug's patents were invalidated — is a reminder to patent practitioners that invalidating a competitor's patents may not guarantee abbreviated new drug application approval, say Sean Murray and Jeremiah Helm at Knobbe Martens.
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Bankruptcy Ruling Shifts Lease Rejection Claim Calculation
A New York federal court’s recent ruling in In re: Cortlandt provides guidance on how to calculate a landlord's damages claim when a bankruptcy debtor rejects a lease, changing from an approach that considers the remaining rent due under the lease to one that considers the remaining time, say Bethany Simmons and Noah Weingarten at Loeb & Loeb.
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Don't Use The Same Template For Every Client Alert
As the old marketing adage goes, consistency is key, but law firm style guides need consistency that contemplates variety when it comes to client alert formats, allowing attorneys to tailor alerts to best fit the audience and subject matter, says Jessica Kaplan at Legally Penned.
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10b-5 Litigation Questions Follow Justices' Macquarie Ruling
Last month, the U.S. Supreme Court held in Macquarie v. Moab that pure omissions are not actionable under U.S. Securities and Exchange Commission Rule 10b–5(b), creating a slightly higher bar for plaintiffs and setting the stage for further litigation over several issues, say Steve Quinlivan and Sean Colligan at Stinson.
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Series
Walking With My Dog Makes Me A Better Lawyer
Thanks to my dog Birdie, I've learned that carving out an activity different from the practice of law — like daily outdoor walks that allow you to interact with new people — can contribute to professional success by boosting creativity and mental acuity, as well as expanding your social network, says Sarah Petrie at the Massachusetts Attorney General’s Office.
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What Calif. Eviction Ruling Means For Defaulting Borrowers
A California appellate court's recent decision in Homeward Opportunities v. Taptelis found that a defaulting borrower could not delay foreclosure with an improperly served notice of pendency of action, but leaves open a possibility for borrowers to delay eviction proceedings merely by filing lawsuits, say Anne Beehler and Krystal Anderson at Holland & Knight.
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Think Like A Lawyer: Follow The Iron Rule Of Trial Logic
Many diligent and eager attorneys include every good fact, point and rule in their trial narratives — spurred by the gnawing fear they’ll be second-guessed for leaving something out — but this approach ignores a fundamental principle of successful trial lawyering, says Luke Andrews at Poole Huffman.
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Court Clerk Error Is No Excuse For A Missed Deadline
Two recent Virginia Court of Appeals decisions in which clerical errors led to untimely filings illustrate that court clerks can be wrong about filing deadlines or the date an order was entered, underscoring the importance of doing one's own research on filing requirements, says Juli Porto at Blankingship & Keith.
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Circuit Split Brews Over Who's A Securities Seller Under Act
A Securities Act section that creates private liability for the sale of an unregistered security is rapidly becoming a favored statute for plaintiffs to wield against participants in both the digital asset and traditional securities markets, but the circuit courts have diverged on who may be held liable for these violations, say Jeffrey L. Steinfeld and Daniel Aronsohn at Winston & Strawn.
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Fed. Circ. Ruling Shows Difficulty Of Proving Deceptive Intent
The Federal Circuit’s recent Freshub v. Amazon decision demonstrates how proving the deceptive intent requirement for inequitable conduct can be challenging, even when there is a five-year delay after abandonment before revival, say attorneys at BCLP.
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Banks Have Won Syndicated Loan Battle, But Not The War
Though the U.S. Supreme Court's recent denial of certiorari in Kirschner v. JPMorgan preserves the status quo that syndicated loans are not securities, the U.S. Securities and Exchange Commission's discomfort suggests that the underlying issues have not been fully resolved, say attorneys at Crowell & Moring.