Due Process

News & Analysis as of

California Cities To Tax Streaming Video?

Many cities in California are considering the expansion of their Utility User Tax (UUT) to streaming video services. Such an expansion may be inconsistent with the cities’ existing ordinances, be invalid under Proposition 218...more

The ERISA Litigation Newsletter - November 2016

This month we review a recent Second Circuit decision addressing ERISA plan status as a class member in a securities shareholder class action. As discussed in the article, the decision exposes a potential conflict among the...more

Breaking: Court Rules Positively For CPSC In Federal Civil Penalty Case Against Spectrum Brands

We do not get many court decisions in the CPSC world, but yesterday we received one. Last evening, a Wisconsin federal district court essentially held in the Government’s case against Spectrum Brands, Inc. (Spectrum) that...more

Top Eight Guidelines to Litigate Employment Claims under Puerto Rico’s Unique Summary Proceeding

A litigation trap that can ensnare unwary employers who may be sued in the Commonwealth of Puerto Rico is a piece of employment legislation that allows expedited proceedings: Law No. 2 of October 17, 1961 (“Law No. 2”), as...more

DOL Prevails In First Challenge to the Conflict of Interest Rule and Related Exemptions

On November 4, 2016, Judge Moss in the U.S. District Court for the District of Columbia granted the U.S. Department of Labor’s motion for summary judgment and dismissed claims brought by the National Association for Fixed...more

Texas Judge Blocks DOL Persuader Rule with Nationwide Permanent Injunction

On November 16, 2016, a Texas federal judge permanently blocked the U.S. Department of Labor (“DOL”) from enforcing its persuader rule in National Federation of Independent Business, et al. v. Thomas E. Perez, et al., Case...more

Court Rules that California Coastal Commission Staff Members who Participate in Enforcement Proceedings Before the Agency May Also...

California’s courts have frequently addressed a party’s due process rights to a fair and impartial decision maker in quasi-judicial proceedings, holding that during such proceedings there must be separation of prosecutorial...more

Federal Circuit to PTAB: “Play Fair.”

In In re Nuvasive, Inc., [2015-1672, 2015-1673] (November 9, 2016), the Federal Circuit reversed one of two PTAB decisions because the patent owner was not given adequate notice of the grounds of invalidity asserted against...more

CFTC Proposes New Rule Allowing it to Obtain Trading Firm’s Trade Secrets Without Due Process

As the Obama administration winds down, its regulators are showing no signs of letting up. Last week the Commodities Futures Trading Commission (CFTC) decided that it should no longer be constrained by its subpoena power...more

Bourne Valley Redux

The dispute between lenders and the purchasers at homeowners’ association foreclosure sale regarding superiority of title has embroiled the State of Nevada since at least as early as 2012. Since the issue rose in volume and...more

When Classes Collide: Court Rejects $7.25 Billion Visa/MasterCard Settlement, Competition News Volume 2016, Issue 1

The Second Circuit’s decision highlights that, whenever there are groups of plaintiffs that will obtain different categories of relief as a part of a settlement, both plaintiffs and defense counsel should seriously consider...more

District Court Preliminarily Enjoins Majority of Department of Labor “Fair Pay and Safe Workplaces” Final Rule

On October 24, 2016, the U.S. District Court, Eastern District of Texas preliminarily enjoined the majority of the Department of Labor’s Final Rule implementing President Barack Obama’s Executive Order 13673 that imposed...more

UPDATE: Ninth Circuit Denies Rehearing of Bourne Valley Decision Holding Nevada HOA Super-Priority Lien Statute Unconstitutional

The Ninth Circuit denied the plaintiff’s request to rehear Bourne Valley Court Trust v. Wells Fargo Bank, N.A., in which the Ninth Circuit found NRS 116 to be unconstitutional on its face because the statute violates a first...more

U.S. Department of Education Finds Students Accused of Sexual Misconduct Had Title IX Rights Violated by Wesley College

The U.S. Department of Education recently announced that Wesley College, a private, liberal arts university in Dover, Delaware, violated Title IX of the Education Amendments of 1972 (“Title IX”) by allegedly disregarding the...more

Title IX and due process: ED tells Wesley that accused student not treated fairly

In a rare move, the Department of Education announced on October 12, 2016, its determination that Wesley College in Delaware had violated Title IX by failing to provide appropriate procedural protections to a student accused...more

Due Process Arguments and State Court Class Actions

Many class-action commentators (including this blog) spend much of their time focusing on class action in federal courts: what caselaw controls, what arguments tend to work. They spend far less time on what happens to those...more

Independent Medical Staff Denied Title VII Protection

It has not been unusual for employed physicians to seek the protection provided to independent medical staff members through the due process procedures provided by medical staff by-laws. The case of Levitin and Chicago...more

Weekly Update Newsletter - October 2016 #4

OTHER GOVERNMENT CONTRACTING NEWS - “Texas court places temporary halt on Fair Pay rule.” Federal News Radio. October 26, 2016. The Eastern District Court of Texas placed a preliminary injunction on Fair Pay and...more

Structure Of CFPB Found To Be Unconstitutional But Agency Survives With Cut To Director’s Power

The DC Circuit Court of Appeals recently held that the single-director structure of the Consumer Financial Protection Bureau (“CFPB”) was unconstitutional, and gave the President the authority to fire the director at will in...more

Controversial Fair Pay and Safe Workplaces Rule Partially Blocked

On October 24, 2016, a federal judge enjoined the U.S. government from enforcing certain provisions of the controversial Fair Pay and Safe Workplaces rule. The decision was handed down from Judge Marcia Crone in the U.S....more

Preliminary Injunction Halts Enforcement of Fair Pay and Safe Workplaces Rule

Federal contractors recently scored a significant victory when a preliminary injunction blocked much of the Fair Pay and Safe Workplaces rule from taking effect. The rule, based on a 2014 executive order, was issued in August...more

US Court of Appeals for the DC Circuit Declares Structure of the US Consumer Financial Protection Bureau Unconstitutional

The US Court of Appeals for the DC Circuit declared the structure of the US Consumer Financial Protection Bureau unconstitutional, stating that the “massive, unchecked power” exercised by its director, Richard Cordray, lacks...more

Blacklist Regs Get a “Preliminary” Black Eye from the District Court in Texas

On October 24, 2016, U.S. District Court Judge Marcia Crone of the Eastern District of Texas granted a nationwide preliminary injunction enjoining implementation of the Fair Pay and Safe Workplaces regulations. In addition...more

Ninth Circuit Denies Motion to Dismiss and Motion to Stay Publication of Decision Holding Nevada HOA Super-Priority Lien Statute...

As we have previously covered in a series of blog posts, the Nevada Supreme Court held in September 2014 that Nevada Revised Statute chapter 116 allows homeowners’ associations (HOAs) to non-judicially foreclose on homeowners...more

Financing Increased Demand On Pre-Existing Services Constitutes “Additional Services”

California Court Decision Rules on Mello-Roos Community Facilities Act of 1982 - Community Facilities Districts formed by a landowner vote may be used to finance increased demand on pre-existing services, a California...more

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