News & Analysis as of

Judicial Discretion

Judicial Estoppel Defense in Bankruptcy Claims Likely to Get More Difficult

A recent decision from the Court of Appeals for the Eleventh Circuit has impaired a valuable defense for early dismissal or settlement with bankrupt plaintiffs. This decision will affect strategy for mortgage originators,...more

Second Circuit Upholds Prosecutorial Discretion in Deferred Prosecution Agreements

On July 12, 2017, the U.S. Court of Appeals for the Second Circuit ruled in United States v. HSBC Bank USA, N.A. that a federal district court does not have the authority to supervise the implementation of a deferred...more

Will This Term of Wisconsin’s Supreme Court Be the Last for Agency Deference in Wisconsin?

by Foley & Lardner LLP on

Justice Neil Gorsuch’s confirmation process earlier this year brought attention to the issue of agency deference, given a concurring opinion that he had written in Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1149 (10th Cir....more

Australian Appeal Court Endorses Class Action Closure Process but with Warnings

by Jones Day on

Recently, in Jones v Treasury Wine Estates Limited (No 2) [2017] FCA 296, the Federal Court deviated from past class action practice. Registration was required to facilitate a mediation and group members could only...more

Interlocutory Remand Can Be Used to Supplement Agency Findings Prior to Judgment - California Court of Appeal Upholds Trial...

by Holland & Knight LLP on

• In Highway 68 Coalition v. County of Monterey, et al., California's Sixth District Court of Appeal endorses the trial court's use of interlocutory remand as a prejudgment tool to allow a lead agency to supplement deficient...more

Judge Donato Rejects Corporate Pleas in Capacitor Cases

U.S. District Court Judge James Donato, of the Northern District of California, caught the attention of criminal antitrust litigators over the last several months with his refusal to accept the guilty pleas of three...more

Key California Employment Law Cases: June 2017

by Payne & Fears on

This month’s key California employment law cases involve civil procedure (class and representative actions) and wage and hour (retaliation) issues....more

The Supreme Court Says “Game Over” to Crafty Gamers’ Attempt to Circumvent Class Certification Appeals

The Xbox 360 is designed for gaming. Appellate litigation, gamers learned, is not. On behalf of a putative class of purchasers of the Xbox 360, a group of gamers brought suit alleging a defect with the consoles. After the...more

A District Court’s Discretion to Sanction Is Broad, “But For” a Causal Limitation

Recently, the U.S. Supreme Court clarified in Goodyear Tire & Rubber Co. v. Haeger that even a district court’s exercise of broad discretion to impose a civil sanction for a litigant’s bad faith conduct has to be limited by a...more

The Halo Effect – Making Angels Out of Infringers?

Historically, patent owners have pled willful infringement in an effort to support the collection of enhanced damages from an infringer. Typically, if there was willful infringement the damages were enhanced and often...more

“Say it Ain’t So Barry:” A Brief Commentary on United States v. Barry Lamar Bonds and the Elusive Definition of Obstruction of...

Politics can be a contact sport as is evident from the recent appointment of a Special Prosecutor to investigate alleged misdeeds by the Trump Administration including obstruction of justice. Ironically, the decision of an...more

Enhanced Patent Damages in the Wake of Halo May Not Be So Easy to Come By

Background - Last year, in Halo Electronics, Inc. v. Pulse Electronics, Inc., 136 S. Ct. 1923 (2016), the Supreme Court weighed in on the question of enhanced damages in patent cases and rejected the then-existing...more

Lawsuit Abuse Reduction Act Would Mandate Sanctions for Frivolous Claims

by Jones Day on

On March 10, 2017, the U.S. House of Representatives passed the Lawsuit Abuse Reduction Act of 2017 ("LARA") by a vote of 230–180. 163 Cong. Rec. H2025-03, H2025. The bill seeks to undo the 1993 amendments to Rule 11 of the...more

Delaware Supreme Court Affirms $7 Million Sanction for Discovery Misconduct: eDiscovery Case Law

by CloudNine on

In Shawe v. Elting, Case No. 487, 2016 (Supreme Court of Delaware, Feb. 13, 2017), the Delaware Supreme Court found that the Court of Chancery followed the correct legal standards and made no errors of law in its sanctions...more

California to Consider Significant Change to Eminent Domain Law Regarding a Condemnee's Right to Recover Litigation Expenses

by Nossaman LLP on

On February 9, 2017, California Assembly Member Phillip Chen (a Republican from the 55th district) introduced Assembly Bill 408 (AB 408). AB 408 is styled as an “act to amend Section 1250.410 of the Code of Civil Procedure...more

HHS Publishes Final Rule Overhauling the Medicare Appeals Process

by Baker Ober Health Law on

The Department of Health and Human Services (HHS) published its final rule revamping the Medicare appeals process at the Administrative Law Judge (ALJ) level on January 17, 2017. The final rule extensively revises federal...more

Tactics For Managing Marital Finances

by McManis Faulkner on

During a dissolution of marriage, financial management is essential to avoiding court imposed sanctions. Parties to a dissolution are required to preserve assets until the court has determined respective interests. At times...more

Appellate Court Notes

by Pullman & Comley, LLC on

AC37979 - Meadowbrook Center, Inc. v. Buchman - Nursing home sued son/guarantor of patient and obtained a judgment for $45,000. The guarantee agreement allowed the nursing home to seek attorney fees. The son appealed...more

Second Circuit Parses Distinction Between “Based on” and “Applicable to” in Context of Sentence Reductions for Retroactive...

In United States v. Leonard, No. 15-22-32-cr (December 14, 2016) (Raggi, Chin, Droney), the Second Circuit vacated and remanded an order finding a defendant ineligible for a sentence reduction based on a retroactive amendment...more

Supreme Court Rejects Mandatory Dismissal for an FCA Seal Breach

by Bass, Berry & Sims PLC on

The Supreme Court held that a relator’s breach of the seal in a qui tam case does not require mandatory dismissal of the complaint, but the Court declined to articulate what factors are appropriate to consider in determining...more

Supreme Court Holds That Violations of the False Claims Act’s Seal Requirements Do Not Require Automatic Dismissal

On December 6, 2016, the Supreme Court of the United States ruled unanimously in State Farm Fire and Casualty Co. v. United States ex rel. Rigsby that violations of the False Claims Act’s (FCA) seal requirement do not require...more

Stop the Music: $25 Million Verdict Intact Despite Party’s Intentional Spoliation of Evidence

by Zapproved LLC on

The court entered final judgment, upholding the jury’s findings and denying the defendant’s motion for a new trial, finding that harsher sanctions for the plaintiff’s intentional spoliation of material evidence were not...more

Ninth Circuit Retires Fee-Award Standard, Imports Octane Fitness to Trademark Cases

This week, the U.S. Court of Appeals for the Ninth Circuit joined a majority of appellate courts that have rejected rigid tests for attorneys’-fees awards in favor of flexible discretion at the district court level. The...more

Moore v. Mercer – What Defendants in Personal Injury Cases Need to Know

by Selman Breitman LLP on

Although the amount a medical finance company pays for a lien might be relevant evidence of the value of services provided to an injured plaintiff, courts have discretion to exclude such evidence if it is minimally probative...more

Intellectual Property Law - October 2016

Federal Circuit After Stryker/Halo - Why it matters: On June 13, 2016, the U.S. Supreme Court decided the consolidated cases of Stryker Corp. v. Zimmer, Inc. and Halo Electronics, Inc. v. Pulse Electronics, Inc. and, as...more

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