Due Process

News & Analysis as of

Pre-enforcement Review? Not Enough. How About Pre-issuance Review?

In Sackett, the Supreme Court ruled that EPA could not issue enforcement orders under the Clean Water Act without allowing the subjects of the order the right to bring a pre-enforcement challenge to such orders under the...more

Down The Arbitration Rabbit Hole: Ninth Circuit Refuses To Enforce Employee’s Waiver Of PAGA Claims

On September 28, 2015, the Ninth Circuit held in Shukri Sakkab v. Luxottica Retail North America, Inc. that the FAA does not preempt the rule that the California Supreme Court enunciated in Iskanian v. CLS Transportation that...more

Operation Choke Point: Lawsuit Against Federal Bank Regulators Survives Motion to Dismiss, Proceeds to Discovery

A federal court in Washington DC has ruled that a lawsuit against federal bank regulators challenging “Operation Choke Point” may proceed. Operation Choke Point is a program begun by the United States Department of Justice...more

Deflategate: Four Games and Four Lessons for Unionized Employers

This week would have marked the return of Tom Brady, had his four game suspension not been reversed by the United States District Court for the Southern District of New York. Much ink has been spilled over Brady’s suspension...more

In re Steed (Fed. Cir. 2015) - Swearing Behind Reference Still Requires Proof of (Timely Filed) Evidence

Thomas Steed, Sourav Bhattacharya, and Sandeep Seshadrijois (collectively "Steed") filed a patent application entitled "Web-Integrated On-Line Financial Database System and Method for Debt Recovery," on April 6, 2004, with...more

DC Circuit: No Jurisdiction For Suits Re SEC Forum Selection Choice

Suits challenging the SEC’s forum selection decisions continue to proliferate. As the trend has unfolded the Commission posted a memo on its website discussing the issue of forum selection and has proposed modifications to...more

Illinois Appellate Court Holds City of Chicago Tax on Cars Rented Outside of but Used Within the City Valid

An Illinois Appellate Court, in Hertz Corp. v. City of Chicago, 2015 IL App (1st) 123210 (Sept. 22, 2015), gave the City of Chicago (City) permission to require rental car companies to collect tax on vehicle rentals from...more

D.C. Circuit Repulses Assault on the SEC’s Administrative Citadel

The citadel of the SEC’s administrative forum has been under assault from several vectors over the past year or so, as a chorus of dissenting Respondents have mounted increasing challenges to its constitutional legitimacy, as...more

Business Law: The Distinction of Six of One, Half a Dozen of the Other. Second Circuit Upholds New York’s Prohibition on...

After nearly two years in limbo, the Second Circuit Court of Appeals has decided that the New York law that prohibits merchants from imposing a surcharge on customers who use credit cards is constitutional and, therefore,...more

Constitutional Clarification for Nevada HOA Super-Priority Foreclosures

Since the Nevada Supreme Court’s infamous decision in SFR Investments Pool 1, LLC v. U.S. Bank, N.A. in September 2014, the mortgage community has continued to fight to save senior deeds of trust from extinguishment due to an...more

US: Courts' Deference to an Arbitration Award is not Without Limits

As a matter of public policy, United States courts strongly favor alternative dispute resolution and show great deference to awards made by arbitration tribunals. However, a recent ruling by the US District Court for the...more

Return to Sender: The Boomerang of Garnishment Checks Back to Georgia Employers

Across Georgia, employers are opening their mailboxes to discover that courts have returned checks that employers previously submitted to satisfy garnishment actions. This is the result of decisions by many courts across...more

FTC v. Wyndham: The Third Circuit Recognizes FTC Authority to Regulate Commercial Cyber Security Practices

In 2014, the United States Court of Appeals for the Third Circuit ruling in FTC v. Wyndham Worldwide Corporation agreed to hear an immediate appeal on two issues: “whether the FTC has authority to regulate cybersecurity under...more

D.C. Circuit Joins Seventh Circuit in Rejecting Court Challenges to Pending SEC Administrative Enforcement Proceedings

The U.S. Court of Appeals for the District of Columbia Circuit held today that federal District Courts do not have subject-matter jurisdiction to entertain challenges to ongoing SEC administrative enforcement proceedings. A...more

Seventh Circuit Finds School District Not Liable in Bullying Case

The Seventh Circuit Court of Appeals, which is the federal appellate court with jurisdiction over Illinois, recently rejected an Indiana student’s claims against two school districts for allegedly improperly responding to...more

Be Aware of Public Employees Disciplinary Proceedings Protections: Loudermill, Wiengarten and Garrity

This post is primarily for public sector employers such as state agencies, municipalities and districts. By virtue of being employed by the government and quite likely represented by a labor union, public sector employees in...more

Tweaking the “Home Court” Rules for SEC Administrative Proceedings

SEC proposes modest amendments to AP process to enhance efficiency and address concerns regarding fairness. In an effort to enhance the efficiency of its processes in administrative proceedings (APs) and bolster its...more

Ten Things Class Action Practitioners Need To Know About Potential Amendments To Federal Rule Of Civil Procedure 23

Rule 23 may be in for some major changes. The Advisory Committee has commissioned a Rule 23 subcommittee to investigate possible revisions to the class action rules. That subcommittee issued a report (pdf) discussing its...more

It’s Déjà Vu All Over Again: FDA Sued Again in Off-Label Promotion Case

To quote the late Yogi Berra, it must feel like déjà vu all over again for the Food and Drug Administration (FDA) (or, if you prefer, Crosby, Stills, Nash & Young’s song, “Déjà Vu” (“We have all been here before”)). Fresh off...more

The Class Action Chronicle - Fall 2015

This is the ninth edition of The Class Action Chronicle, a quarterly publication that provides an analysis of recent class action trends, along with a summary of class certification and Class Action Fairness Act rulings...more

ICSID Claim Against Austria Puts Bilateral Investment Treaties Under Spotlight

On 30 July 2015, the secretary general of the International Centre for Settlement of Investment Disputes (ICSID) registered a request to begin arbitration proceedings against the Republic of Austria. . The request was...more

SEC ALJ Dismisses Case: Inside-Info Trades, But No Tipper Benefit

An SEC administrative law judge (“ALJ”) found that former Wells Fargo trader Joseph Ruggieri traded on material nonpublic information tipped him by former analyst Greg Bolan, but dismissed the insider-trading charges against...more

Parents Are Entitled to Due Process

IS IT TIME TO REIGN IN THE HEAVY HAND OF THE CHILD PROTECTION AND PERMANENCY AGENCY? (DCPP Formerly Known as DYFS) Society’s interest in the protection of children is a significant and legitimate interest of the State....more

Federal Court Declares Georgia’s Statutory Garnishment Process Unconstitutional

On September 8, 2015, United States District Judge Marvin H. Shoob declared Georgia’s statutory garnishment process unconstitutional in Strickland v. Alexander, No. 1:12-CV-02735-MHS (N.D. Ga. Sept. 8, 2015) (granting summary...more

The World in US Courts - Orrick's Quarterly Review of Decisions Applying US Law to Global Business and Cross-Border Activities:...

We are pleased to announce the Summer 2015 issue of The World in US Courts: Orrick's Quarterly Review of Decisions Applying US Law To Global Business and Cross-Border Activities. This issue discusses 13 new decisions that...more

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