Administrative Agency Constitutional Law

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Federal Circuit Rules That Not All Petitioners Have Standing to Appeal Adverse IPR ResultsFederal Circuit Rules That Not All...

The Federal Circuit recently dismissed an appeal from an inter partes review proceeding where the appellant/petitioner failed to establish that it had constitutional standing to maintain an appeal. Phigenix, Inc. v....more

This Year’s Top Ten IP Cases

#10 Design Patent Damages § 289 - Samsung Elecs. Co., v. Apple Inc., 580 U.S. _ (Dec. 6, 2016) - In the case of a multicomponent product, the relevant article of manufacture for arriving at a damages award under...more

Court reported to reject request of plaintiffs in another case challenging CFPB’s constitutionality for consolidation with PHH

According to a Law360 report, the D.C. federal district court has denied the request of the plaintiffs in State National Bank of Big Spring, Texas, et al. v. Lew, et al. to consolidate their case with PHH on appeal to the...more

Federal Circuit Requires Standing to Appeal PTAB’s Final Decisions

Although arguably foreshadowed, some may be surprised to learn that a party with the right to challenge the validity of a patent at the United States Patent and Trademark Office (“USPTO”) may not have the right to appeal an...more

The U.S. Supreme Court And Workplace Class Actions

Seyfarth Synopsis: As profiled in our recent publication of the 13th Annual Workplace Class Action Litigation Report, the U.S. Supreme Court’s rulings have a profound impact on employers and the tools they may utilize to...more

Federal Circuit Requires Standing To Appeal An IPR Decision

In the case of Phygenix, Inc. v. ImmunoGen, Inc., the Court of Appeals for the Federal Circuit (CAFC) held that the petitioner (Phygenix) that had unsuccessfully challenged certain claims of ImmunoGen’s U.S. Patent No....more

OSHA’s New Electronic Reporting and Anti-Retaliation Rule Challenged By Industry Groups in Oklahoma

Seyfarth Synopsis: Business organizations have once again brought suit against OSHA’s new electronic reporting and retaliation rule, arguing that the proposed online database violates employers’ First and Fifth Amendment...more

Another view on Presidential authority to remove Director Cordray

As rumors swirl that President-elect Trump is planning to remove Director Cordray immediately after January 20th, conflicting views have emerged about his authority to do so before the appeal in PHH is resolved. We...more

D.C. Circuit grants PHH’s motion for leave to file supplemental response

Last Friday, the D.C. Circuit entered an order granting PHH’s motion for leave to file a supplemental response to the CFPB’s petition for rehearing en banc.  On December 22, PHH and the United States filed responses to the...more

An IPR Does Not Necessarily Have Standing to Appeal if it Loses

In Phigenix, Inc. v. ImmunoGen, Inc., [2016-1544] (January 9, 2017), the Federal Circuit held that Phigenix, the losing petitioner in an IPR, lacked standing to appeal the PTAB’s decision that claims 1–8 of U.S. Patent No....more

To Be or Not To Be: The SEC Administrative Court — Are They Constitutional or Not

Seyfarth Synopsis: What, if any, steps the government will take to appeal the Tenth Circuit’s Bandimer’s decision remains to be seen. The government may elect to petition the entire Tenth Circuit to hear the case en banc. Or...more

Federal Circuit Dismisses IPR Appeal for Lack of Standing

In Phigenix v. ImmunoGen, Appeal No. 16-1544 (Fed. Cir. Jan. 9, 2017), a precedential decision, the Federal Circuit found that the petitioner lacked standing to appeal the Patent Trial and Appeal Board’s (PTAB) final written...more

Tenth Circuit Creates Circuit Split on the Constitutionality of SEC Administrative Law Judges

On December 27, 2016, a divided panel of the Tenth Circuit Court of Appeals found the SEC’s use of administrative law judges (“ALJs”) unconstitutional, setting aside an ALJ’s administrative order finding David F. Bandimere...more

Tenth Circuit Decision in Bandimere v. SEC Creates Circuit Split on Question Whether the SEC’s Procedure for Appointing...

On December 27, 2016, in Bandimere v. SEC, the Tenth Circuit held that SEC administrative law judges (ALJs), who preside over the agency’s civil administrative proceedings, are “inferior officers” within the meaning of the...more

The Tenth Circuit Rules SEC Administrative Judges Are Unconstitutional, Setting Up Potential Supreme Court Review

The constitutionality of the SEC’s in-house administrative proceedings is in doubt following the 10th Circuit Court of Appeals’ ruling in Bandimere v. SEC. In Bandimere, a three-judge panel held, by a 2-1 decision, that SEC...more

Not So Fast: The Tenth Circuit Creates a Split by Denying the Constitutionality of the SEC’s Administrative Law Judges

Just before the clock struck 2017, the United States Court of Appeals for the Tenth Circuit weighed in on the constitutionality of the United States Securities and Exchange Commission’s (“SEC” or “Commission”) administrative...more

Tenth Circuit Decision Finds Against the SEC and Creates a Circuit Split on the Constitutionality of the Commission’s ALJs

In the final days of 2016, the U.S. Court of Appeals for the Tenth Circuit denounced the constitutional authority of the five administrative law judges (“ALJs”) who preside over contested administrative proceedings brought by...more

Tenth Circuit Court of Appeals Finds SEC’s Process for Designating Administrative Law Judges to be Defective, Causing Split with...

The U.S. Court of Appeals for the Tenth Circuit on December 27, 2016, in Bandimere v. SEC, found the Administrative Law Judges (ALJs) used by the U.S. Securities and Exchange Commission (SEC) to hear its administrative...more

Tenth Circuit ruling on constitutionality of SEC administrative judges: implications for CFPB

Just before year-end, the U.S. Court of Appeals for the Tenth Circuit, in Bandimere v. United States Securities and Exchange Commission, set aside an SEC decision finding the petitioner liable for violating various securities...more

Appellate Court Decision Casts New Doubts Regarding SEC Administrative Actions

A recent federal appellate decision casts new doubt on the SEC’s practice of using its own administrative law judges (ALJs) to hear actions brought by the SEC Enforcement Division. In a decision late last month, the U.S....more

Circuits Split - Tenth Holds SEC ALJs Unconstitutional

The Tenth Circuit recently held that the SEC’s in-house judges are “inferior officers” hired in violation of Article II’s Appointment Clauses, creating a split with the D.C. Circuit over the issue. The Tenth Circuit held...more

PHH replies to CFPB’s opposition to PHH’s motion for leave to file supplemental response

PHH has filed a reply to the CFPB’s opposition to PHH’s motion for leave to file a supplemental response to the CFPB’s petition for rehearing en banc. On December 22, PHH and the United States filed responses to the CFPB’s...more

10th Circuit Finds SEC Administrative Proceedings are Unconstitutional

The Appointments Clause of the US Constitution requires that “inferior officers” be appointed by the President, department heads or courts of law. SEC administrative law judges, or ALJs, are not appointed by the SEC – they...more

PHH and United States respond to CFPB’s petition for rehearing en banc; PHH seeks leave to file supplemental response

PHH and the United States have filed responses with the D.C. Circuit to the CFPB’s petition for rehearing en banc.  The D.C. Circuit invited the Solicitor General to file a response expressing the views of the United States...more

Federal Circuit PTAB Appeal Statistics – December 2016

Through December 1, 2016, the Federal Circuit decided 141 PTAB appeals from IPRs and CBMs. The Federal Circuit affirmed the PTAB on every issue in 109 (77.30%) of the cases, and reversed or vacated the PTAB on every issue in...more

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