News & Analysis as of

Appointments Clause

Manatt, Phelps & Phillips, LLP

Government Will Seek Supreme Court Review of Preventive Services Decision

On August 27, the government filed a motion indicating that it intends to seek Supreme Court review of the U.S. Court of Appeals for the Fifth Circuit’s decision in Braidwood Management v. Becerra. In June, the Fifth Circuit...more

King & Spalding

Fifth Circuit Reverses District Court’s Nationwide Injunction on ACA’s Preventive Care Coverage Mandates

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On June 21, 2024, a three-judge panel of the United States Court of Appeals for the Fifth Circuit issued an opinion in Braidwood Management Inc. et al. v. Xavier Becerra et al. reversing an injunction entered by the lower...more

Mintz - Health Care Viewpoints

Challenge to False Claims Act Qui Tam Provisions Fails in an Initial Attempt to Revive Long-Dormant Arguments as to...

This July, we detailed the Supreme Court’s surprising revival in United States ex rel. Polansky v. Exec. Health Resources, No. 21-1052 (S. Ct. June 16, 2023) of the question of whether the qui tam provisions of the False...more

Jones Day

DOJ's Immigration-Employment Program Faces Headwinds Amidst Milestone Settlement

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Two recent developments involving the U.S. Department of Justice's Civil Rights Division ("DOJ") highlight potential risks and opportunities for companies facing immigration-related employment matters....more

Burr & Forman

The Assault on the SEC’s Administrative Citadel Continues

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A panel of the D.C. Circuit recently relied on Lucia and Cochran to enjoin a FINRA regulatory enforcement action pending appeal of an Appointments Clause challenge....more

Mintz - Health Care Viewpoints

Blowing the Whistle on the False Claims Act Qui Tam Provisions: Dissent and Concurrence in Polansky Invite Constitutional...

Do the qui tam provisions of the False Claims Act (FCA), see 31 U.S.C. § 3730(b)(1), violate the Executive Branch’s exclusive grant of authority under Article II of the United States Constitution? This long-dormant question...more

Burr & Forman

Jarkesy Gets His Day: SCOTUS to Review SEC ALJs

Burr & Forman on

On June 20, 2023, the Supreme Court granted certiorari to review three questions about the Securities and Exchange Commission’s (SEC’s) administrative courts...more

Zuckerman Spaeder LLP

Whither Insurance Coverage for Preventive Health Services? District Court Decision Striking Down Affordable Care Act’s Preventive...

Zuckerman Spaeder LLP on

On May 15, 2023, the Fifth Circuit temporarily stayed a district-court ruling that struck down a key part of the Affordable Care Act (ACA). As a result of the stay, the ACA’s health insurance coverage requirements for...more

Woodruff Sawyer

Compliance Alert: DOL Issues Guidance on Preventive Care Court Order

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On March 30, 2023, the United States District Court for the Northern District of Texas issued an order in Braidwood Management Inc. v. Becerra (“Braidwood”), vacating any and all actions taken by the DOL and other federal...more

Venable LLP

U.S. Supreme Court Justices Thomas and Gorsuch Skeptical of ALJ Proceedings in Axon Enterprise v. Federal Trade Commission...

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The U.S. Supreme Court’s landmark decision unanimously reversing the Ninth Circuit in Axon Enterprise v. Federal Trade Commission is likely to represent a monumental shift in pre-enforcement challenges to administrative...more

Ogletree, Deakins, Nash, Smoak & Stewart,...

Federal District Court’s Ruling on Affordable Care Act Preventive Care Eases Employer Burden—at Least for Now

Employers, at least for now, may have some relief from some of the Affordable Care Act (ACA) requirements to cover preventive care services without cost sharing under a nationwide injunction issued March 30, 2023, by a...more

Orrick, Herrington & Sutcliffe LLP

Online lender asks Supreme Court to review ALJ ruling

A Delaware-based online payday lender and its founder and CEO (collectively, “petitioners”) recently submitted a petition for a writ of certiorari challenging the U.S. Court of Appeals for the Tenth Circuit’s affirmation of a...more

Sterne, Kessler, Goldstein & Fox P.L.L.C.

Federal Circuit Appeals from the PTAB and ITC: Summaries of Key 2022 Decisions: Polaris Innovations Ltd. v. Brent, 48 F.4th 1365...

NVIDIA petitioned for IPR of two patents owned by Polaris. The Board found the challenged claims unpatentable. Polaris appealed. While on appeal, the final written decisions in those IPRs were vacated and the proceedings were...more

McDermott Will & Emery

Review Delayed Is Not Review Denied

McDermott Will & Emery on

Considering whether the US Patent & Trademark Office (PTO) Director must complete review of the Patent Trial & Appeal Board’s (Board) inter partes review (IPR) decision within the statutory deadline for a final written...more

Sterne, Kessler, Goldstein & Fox P.L.L.C.

Federal Circuit Appeals from the PTAB and ITC: Summaries of Key 2022 Decisions: Arthrex, Inc. v. Smith & Nephew, Inc., 35 F.4th...

Smith & Nephew petitioned for IPR of Arthrex’s ’907 patent, which claims a surgical device with an “eyelet” through which a suture is threaded. Smith & Nephew argued in relevant part that certain claims were anticipated by a...more

Schwabe, Williamson & Wyatt PC

Latest Federal Court Cases - February 2023 #2

CyWee Grp. Ltd. v. Google LLC, Appeal No. 20-1565 (Fed. Cir. Feb. 8, 2023) In its only precedential patent case this week, the Federal Circuit addressed last gasp efforts by CyWee to salvage its IPR losses to Google. The...more

Sterne, Kessler, Goldstein & Fox P.L.L.C.

Federal Circuit Appeals from the PTAB and ITC: Summaries of Key 2022 Decisions

As part of the recovery from the global COVID-19 pandemic, the U.S. Court of Appeals for the Federal Circuit took steps to return to normal operations. It began requiring live oral arguments in August 2022 and, by November,...more

Kilpatrick

5 Key Takeaways | Petitions for Expungement or Reexamination of the Trademark Modernization Act

Kilpatrick on

Kilpatrick Townsend's Ted Davis recently spoke at the Federal Bar Association's IP Law Fall Conference 2022 on the topic of "Petitions for Expungement or Reexamination and Other Aspects of the Trademark Modernization Act."...more

Woodruff Sawyer

The SEC’s Administrative Law Judges Under Fire

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In addition to creating rules that govern both private and public companies, the Securities and Exchange Commission (SEC) uses an in-house, government legal system—Administrative Law Judges (ALJs)—to prosecute securities...more

McDermott Will & Emery

The Board Is Back in Town: Arthrex Can’t Save Untimely Motions to Terminate

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The US Court of Appeals for the Federal Circuit affirmed a Patent Trial & Appeal Board (Board) unpatentability finding and denial of a motion to terminate, finding that the Board had already issued final written decisions...more

Carlton Fields

Attacks on the SEC Administrative Citadel

Carlton Fields on

For decades, the SEC Enforcement Division has opted to use the SEC’s in-house administrative law judges (ALJs) when the case involved a registered entity, which was the jurisdictional base for in-house administrative...more

Goodwin

Federal District Court Ruling May Jeopardize Insurance Coverage of More Than 50 Recommended Procedures, Screenings, and Treatments

Goodwin on

Under the Affordable Care Act, group health plans and health insurance issuers are required to provide health insurance coverage based on recommendations made by healthcare coverage professionals. The covered categories...more

McDermott Will & Emery

Not “Use It or Lose It”: Even if Unexercised, Director’s Authority over Institution Decisions Remains

McDermott Will & Emery on

The US Court of Appeals for the Federal Circuit denied mandamus relief, finding that a party is not entitled to petition the director for review of a Patent Trial & Appeal Board (Board) decision denying institution of an...more

Knobbe Martens

The Patent Office Need Not Consider Requests for Director Review of IPR Institution Decisions

Knobbe Martens on

Summary: The USPTO policy of refusing to consider Requests for Director Rehearing of decisions denying institution of IPR and PGR does not violate the Appointments Clause of the Constitution....more

Jones Day

Federal Circuit Approves Interim-Director Director Reviews

Jones Day on

The Federal Circuit’s decision on May 27, 2022 in Arthrex Inc. v. Smith & Nephew Inc. et al., set forth that Patent Commissioner, Drew Hirshfeld, was within the bounds of the U.S. Supreme Court’s United States v. Arthrex...more

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