Civil Procedure

Read Conflict of Laws updates, alerts, news, and analysis from leading lawyers and law firms:

News & Analysis as of May 18, 2013

Will New Marijuana Laws Go Up In Smoke?
Bill on Bankruptcy: Who's to Blame for the Hostess Liquidation?
Weekly Brief: Google Antitrust Suit?; Legal Weed; Law Firm Mega-Merger Mania
Appeal Trial Court - What To Do When a Party Loses or is Unhappy with a Decision Made by the Trial Court - Kathi Sandweiss discuss
The Apellate Process Explained - Kathi Sandweiss discusses the appeals process and what it can and can't do for your situation.
Northern Mariana Islands Retirement Fund Files For Bankruptcy

Ninth Circuit Holds that Federal Securities Laws Preempt California Labor Code's Ban on Forced Patronage at Brokerage Firms

by Bram Hanono, Jennifer Redmond, John Stigi | Sheppard Mullin Richter & Hampton LLP on 5/10/2013

In McDaniel v. Wells Fargo Investments, LLC, Nos. 11-17017, 11-55859, 11-55943, 11-55958, 2013 WL 1405949 (9th Cir. Apr. 9, 2013), the United States Court of Appeals for the Ninth Circuit affirmed the dismissal of four class...more

EEOC Makes Protecting Rights Of LGBT Workers A Top Priority

by Albert Llosas Barrueco | Pepper Hamilton LLP on 5/7/2013

As the debate over gay marriage continues to intensify throughout the country, so does the issue of workplace rights for the lesbian, gay, bisexual and transgender (LGBT) community. LGBT workers currently face substantial...more

Genesis Healthcare v. Symczyk: Nearly as Many Questions as Answers

by Kirk Jenkins | Sedgwick LLP on 4/24/2013

When the petition for certiorari in Genesis Healthcare Corp. v. Symczyk was granted, it appeared that the Supreme Court was poised to resolve a clear split in the Circuits about the permissibility of “pick off” moves, at...more

Appellate Court: Tenured Teachers May be Terminated for “Disability” Without Violating CFEPA

by Daniel A. Schwartz | Pullman & Comley, LLC on 4/24/2013

The Connecticut Appellate Court yesterday released two notable employment law decisions. They won’t become “official” until April 30, 2013, so you have some time to digest them. I’ll cover one today and leave the other for a...more

Supreme Court Rules on Equitable Defenses to Reimbursement Claim by Employee Health Plan

by Katherine Lange | Womble Carlyle Sandridge & Rice, PLLC on 4/22/2013

Executive Summary: Reimbursement claim brought under ERISA sec. 502(a)(3) was akin to “equitable lien by agreement,” and therefore could not be defeated by equitable defenses that contradicted plan terms. ...more

U.S. Government Remains Firm on “Deferred Action” Despite Suit to Shut It Down

by Ronald Shapiro on 4/19/2013

On Monday of this week, U.S. District Court Judge Reed O’Connor held a hearing on a Complaint filed by U.S. Customs and Immigration Enforcement (“ICE”) agents who are challenging the federal “deferred action” program...more

Creditors Can Reach Benefits under "Top Hat" Plan, United States District Court of Maryland Rules

by Katherine Lange | Womble Carlyle Sandridge & Rice, PLLC on 4/17/2013

Executive Summary: ERISA “top hat” plan’s anti-alienation provision does not trump state garnishment laws. A familiar feature of ERISA is its protection of a participant’s retirement savings from creditors; ERISA...more

Buyer Beware: Seventh Circuit Upholds Application of the Federal Common Law Standard of Successor Liability in an Asset Sale

by Bill Berger, Adam Duerr, Gino Maurelli, Matthew Nyberg | Brownstein Hyatt Farber Schreck on 4/15/2013

One of the benefits to structuring an acquisition as an asset deal is that the buyer has the ability to choose the liabilities that it will assume and the liabilities that will remain with the seller, including contingent...more

7th Circuit Holds Successor Liable for FLSA Claims, Despite Buyer’s Disclaimer

by Leo Crowley, Thomas N. Makris, Alexander Parachini, Paula Weber | Pillsbury Winthrop Shaw Pittman LLP on 4/12/2013

In Teed v. Thomas & Betts Power Solutions, LLC, the 7th Circuit in an opinion written by Judge Posner held that, absent a good reason to withhold liability, a purchaser of assets was subject to successor liability for Fair...more

Successor Liability Under The FLSA: Seventh Circuit Holds Purchaser Of Assets From Receiver Of Company Which Had Violated FLSA...

by M. Reid Estes, Jr., Daniel Gosch | Dickinson Wright on 4/11/2013

In a case which is sure to complicate the sale of companies (or discrete divisions thereof) and have widespread influence in other Circuits, the Seventh Circuit recently held that a company which acquired the assets (not...more

Tyco Seeks En Banc Review of Controversial Third Circuit Wiest v. Lynch Decision

by Connie Bertram, Lloyd B. Chinn, Harris M. Mufson, Steven J. Pearlman | Proskauer - Whistleblowing & Retaliation on 4/4/2013

Tyco Electronics Corporation filed a Petition for Rehearing En Banc with the Third Circuit on April 2, 2013 asking the court to reconsider its March 19 decision in Wiest v. Lynch, No. 11-cv-4257, 2013 U.S. App. LEXIS 5345 (3d...more

Supreme Court Poised To Consider Additional Basis For Age Discrimination Claims

by Beth P. Zoller | XpertHR - Partnered with LexisNexis on 4/1/2013

The Supreme Court may soon resolve a split among the appeals courts as to whether filing a charge under the Age Discrimination in Employment Act (ADEA) with the Equal Employment Opportunity Commission (EEOC) is the sole...more

Third Circuit Adopts New Broader Standard for Defining Protected Activity for Whistleblowers

by Edward Ellis, Gregory Keating, Jill Weimer | Littler on 3/26/2013

The roller coaster continues for how to define protected activity under the Sarbanes Oxley Act (SOX). In a recent decision that signifies a major setback for employers, the United States Court of Appeals for the Third Circuit...more

Third Circuit Lowers Bar For Determining Whether Internal Complaint Is SOX Protected Activity

by Lloyd B. Chinn, Harris M. Mufson, Steven J. Pearlman, Michael Spencer | Proskauer - Whistleblowing & Retaliation on 3/26/2013

In Wiest v. Lynch, No. 11-cv-4257, 2013 U.S. App. LEXIS 5345 (3d Cir. March 19, 2013), the Third Circuit gave Chevron deference to U.S. Department of Labor Administrative Review Board’s (ARB) interpretation of “protected...more

Punitive Damages Exception Recognized to General Rule Precluding Direct Liability Against Employers who Admit Vicarious Liability...

by Williams Venker & Sanders on 3/26/2013

The Court of Appeals for the Western District of Missouri has answered in the affirmative a question left open by the Missouri Supreme Court almost two decades ago: whether a claim for punitive damages can in fact serve as an...more

The Federal Enclave Doctrine: A Potentially Powerful Defense to State Employment Laws

by Richard Black, Steven E. Kaplan, Joshua Waxman | Littler on 3/8/2013

The U.S. Constitution provides that the federal government has exclusive legislative rights over certain federal territories – such as military bases, courthouses, and other official properties – if a state consents to the...more

New York Appeals Court Applies Liberal Standard in Reinstating a Sex Bias Claim Under the City Human Rights Law

by Jonathan Sokolowsii | Sheppard Mullin Richter & Hampton LLP on 2/14/2013

In a recent decision from the Appellate Division, First Department, a unanimous panel reinstated claims asserted by three plaintiffs under the New York City Human Rights Law (“NYCHRL”). The plaintiffs in Hernandez, et al. v....more

California Courts Differ On FAAAA Preemption And Flexibility Provided By Brinker

by Ogletree, Deakins, Nash, Smoak & Stewart,... on 2/1/2013

Federal preemption of California’s meal and rest break laws as applicable to truck drivers under the Federal Aviation Administration Authorization Act (FAAAA) continues to zigzag through California’s federal courts. When...more

California Appellate Court Orders Arbitration and Rules that Claims May Not Proceed On Behalf of a Class Plaintiff in Macy's OT...

by Dawn Kennedy, Greg Mersol | BakerHostetler on 1/31/2013

A recent decision from a California court of appeals reflects a growing, if at times reluctant, acceptance by California courts of employment arbitration. In Outland v. Macy’s Department Stores, Inc., Case No. A133589 (Ct....more

Courts Continue to Wrestle With Arbitration Issues

by Greg Mersol | BakerHostetler on 12/17/2012

Decades ago, Congress passed the Federal Arbitration Act to combat the hostility courts showed towards arbitration agreements. Since that time, the Supreme Court has repeatedly pronounced the public policy in favor of the...more

SCOTUS Reigns Supreme On Issue Of Arbitration Of Non-Compete Agreements

by Peter C. Vilmos | Burr & Forman on 12/13/2012

Some states specifically allow non-compete agreements. Of those states, some have legislation that provides guidelines to parties to a non-compete agreement regarding enforceability. Other states take the approach that...more

Defining supervisor by Dara Wanzer

by Dara K. Wanzer | McAfee & Taft on 12/10/2012

Originally published in the Journal Record on December 6, 2012. So what exactly does it mean to be a supervisor? Must you have the power to hire, fire, demote, promote, transfer or discipline an employee? Or do...more

Court holds that federal standards of care pre-empt state law standards

by Morrison & Foerster LLP on 12/3/2012

Originally published in International Law Office on November 27 2012. A New York state trial court recently added another voice to the chorus of cases finding that federal law pre-empts state law standards of care in the...more

Supreme Court: Arbitration Agreements May Trump Conflicting State Law

by Michael C. Jacobson | XpertHR - Partnered with LexisNexis on 12/3/2012

Employers that utilize arbitration agreements just received a major vote of confidence from the Supreme Court of the United States (SCOTUS). In Nitro-Lift Technologies, LLC v. Eddie Lee Howard, et al., +2012 U.S. LEXIS...more

Appellate Panel Tries to Draft a Roadmap for the California Supreme Court to Save California's Prohibition of Class Action Waivers...

by Sheppard Mullin Richter & Hampton LLP on 12/1/2012

The battle for how the landmark arbitration decision Concepcion v. AT&T Mobility (“Concepcion”) should be construed in California continues with Monday’s issuance of Franco v. Arekelian Enterprises, Inc. (“Franco II”)....more

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