Civil Procedure Constitutional Law

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Unmasking the anonymous online critic – first, there is the matter of jurisdiction

On Friday, the Supreme Court of Texas issued a 5-4 decision holding a plaintiff needs to establish jurisdiction over an anonymous blogger before a court will allow pre-suit discovery that would likely unmask the blogger’s...more

Mind the Statutory Gap (aka A Jurisdictional Mess)

As we all know, on June 9 of this year, the Supreme Court issued its long awaited decision in Executive Benefits Ins. Agency vs. Arkison, 134 S. Ct. 2165, 189 L. Ed. 2d 83 (2014), which we had hoped would resolve the open...more

Court Denies Extraterritorial Application of the Dodd-Frank Act's Whistleblowing Provisions

On August 14, 2014, in Liu Meng-Lin v. Siemens AG, a three-judge panel of the United States Court of Appeals for the Second Circuit unanimously held that the whistleblowing provision of the 2010 Dodd-Frank Wall Street Reform...more

District Court Refuses to Certify Class of “Non-Liturgical” Protestant Navy Chaplains

Given the rich diversity and array of religions, and the First Amendment prohibitions both on the establishment of religion and impeding the free exercise of religion, the appointment and promotion of chaplains in the...more

Second Circuit Limits CEA Private Actions Based On Morrison

In Morrison v. National Australia Bank Ltd., 561 U.S. 247 (2010) the Supreme Court delimited the reach of Exchange Act Section 10(b), concluding that the Section has no extraterritorial reach. Rather, the Section is confined...more

Second Circuit Affirms No Extraterritorial Application For Dodd-Frank Anti-Retaliation Provision

In Liu v. Siemens A.G., No. 13-cv-4385, 2014 WL 3953672 (2d Cir. Aug. 14, 2014), the Second Circuit affirmed that the anti-retaliation provision in Section 922 of Dodd-Frank does not apply extraterritorially. This post...more

Debunking Bunk: Fourth Circuit Leaves Unresolved “Excessive” Penalties Under the False Claims Act

On December 19, 2013, in a highly anticipated decision, the Court of Appeals for the Fourth Circuit awarded $24 million in civil penalties under the False Claims Act (FCA), despite the fact that the whistleblower prosecuting...more

Federal Circuit Sidesteps Constitutionality of AIA First-to-File Provision

MadStad Eng’g, Inc. v. USPTO - The U.S. Court of Appeals for the Federal Circuit faced an issue of first impression when a named inventor on three patents challenged the first-inventor-to-file provision of the America...more

Midwest Gaming Win Reinforces Division Between Police and Taxing Powers

In United States v. Doremus, 249 U.S. 86 (1919) the Supreme Court held that a tax law “may not be declared unconstitutional, because its effect may be to accomplish another purpose as well as the raising of revenue.” That...more

Delaware Court Denies Attorneys’ Fees for Stockholders in Appraisal Proceedings

The Delaware Court of Chancery recently held that certain stockholders who launched appraisal proceedings challenging a merger lacked standing to obtain reimbursement of attorneys’ fees from a $10.7 million settlement in a...more

Medicare Beneficiaries Sue HHS Over 489-Day Backlog in ALJ Appeals

The Center for Medicare Advocacy (CMA) filed a complaint last week on behalf of five Medicare beneficiaries in federal district Court in Connecticut requesting a court order requiring the Secretary of HHS to clear a massive...more

The effect of the American Meat Institute Decision on the Conflict Minerals Rule

As we have discussed over the last few months, the fate of the conflict minerals rule has been uncertain. In April 2014, in the National Association of Manufacturers (“NAM”) case, the Court of Appeals for the D.C. Circuit...more

Appellate Court Orders California Tax Agency to Pay Attorney Fees Based on Significant Public Benefit Obtained by Reed Smith

The California Court of Appeal held in a published decision Sept. 2 that Reed Smith secured a significant benefit for the public by bringing a case that resulted in the Court striking down portions of an unconstitutional and...more

Fifth Circuit Applies Punitive Damages Limitations to Statutory Civil Penalties

It’s not uncommon for state and federal regulatory schemes to provide for an award of statutory civil penalties to deter and punish certain conduct that it is difficult to monetize in a suit for damages. ...more

Real Property, Financial Services & Title Insurance Update: August 2014 #2

former marital home entitled to homestead exemption under article X, section 4 of Florida Constitution because (1) decedent and former wife still owned home as tenants in common at time of his death; (2) decedent’s sons, whom...more

What is More Defamatory? A False Accusation of Homophobia or of Homosexuality?

In July 2014, Judge Barbara Jaffe of the New York Supreme Court dismissed the defamation claims in Kramer v. Skyhorse Publications. Kenny Kramer, the real life inspiration for the beloved eponymous Seinfeld character, had...more

Texas Supreme Court Opinions and Orders (8/29/14)

As expected, the last order list of the Supreme Court's fiscal year was a busy one. The Court issued opinions in 12 argued cases, so I apologize in advance for the length of this post. There were no grants and no mandamus...more

People v. The McGraw-Hill Companies, Inc. et al

One thing common to all appellate lawyers— they love to appeal. But, as all appellate lawyers know, the right to appeal is fixed by statute. (Trede v. Superior Court (1943) 21 Cal.2d 630.) Thus, our ability to practice our...more

The Supreme Court of Texas Rules Injunctions for Defamation Not Proper and Requires Proof of Damages

On Friday, the Supreme Court of Texas issued two important defamation rulings. The first, Kinney v. Barnes, held that injunctions to prohibit defamatory speech do not pass constitutional muster. ...more

City May be Liable for Damage to Residence from Falling Tree Under Inverse Condemnation

When is a tree a “public improvement” for purposes of inverse condemnation? According to one court, when the tree was planted by a city as part of a forestry program and maintained over a period of time. City of Pasadena v....more

Ferring B.V. v. Watson Laboratories, Inc. (I) (Fed. Cir. 2014)

In the first of a pair of decisions issued last Friday, Ferring B.V. v. Watson Laboratories, Inc., the Federal Circuit affirmed a finding by the District Court that a generic company could moot ANDA litigation by amending its...more

Texas Web Publishers Earn Novel Protection Against Stale Lawsuits

In a case of first impression for a state appellate court, a Texas broadcaster was protected against a stale libel suit arising from a news report posted to the Internet. ...more

Washington Redskins Challenge the Constitutionality of Section 2(a) of the Lanham Act

The Washington Redskins trademark controversy is far from over. Despite the fact that certain news and sports commentators and mainstream newspapers and organizations have announced that they will no longer use the term...more

Texas Supreme Court to Hear Defamation Case Involving Fracking Claims

On August 21, 2014, the Texas Supreme Court agreed to hear oral arguments in an ongoing dispute between a homeowner and Texas-based oil driller Range Resources Corp. The case is not a typical homeowner vs. oil driller...more

The Police Have The Right To Remain Silent Too: The Supreme Court Rules On The Disclosure Of Police Reports Under The FOIA

The Connecticut Supreme Court has resolved an intense debate about what law enforcement agencies are required to release with regard to arrest records and associated reports. This decision could affect the ability of school...more

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