News & Analysis as of

Third Circuit Challenges Supreme Court to Reconsider Whether an LLC’s Citizenship Should Be Based on Its Members

Action Item: An LLC’s state of organization and principal place of business are legally irrelevant for purposes of determining diversity jurisdiction in the Third Circuit. Despite the practical difficulties this law imposes...more

O’Bannon v. NCAA – A Split Decision by the Ninth Circuit

The United States Court of Appeals for the Ninth Circuit issued its highly anticipated decision in the O’Bannon case on September 30, 2015. This case was an appeal of the United States District Court for the Northern District...more

Pensions Alert: Survivors' Benefits: Court of Appeal Judgment

The Court of Appeal issued a judgment this week in a case concerning the provision of survivors' benefits to civil partners and same sex spouses by occupational pension schemes. In this Pensions Alert we report on the Court's...more

SEC’s Conflict Minerals Rule Still Unconstitutional, Says D.C. Circuit

On August 18, 2015, the United States Court of Appeals for the District of Columbia Circuit reaffirmed that both Section 1502 of the Dodd-Frank Act and its implementing Conflict Minerals Rule issued by the SEC violate the...more

NC Court of Appeals Finds $100 Adequate Consideration to Support Non-Compete

In North Carolina, an initial offer of employment serves as adequate legal consideration to support non-competition and non-solicitation restrictive covenants. However, once a person is already employed, the employer must pay...more

Bikram Yoga in the Hot Seat As Ninth Circuit Affirms Yoga Sequence Not Copyrightable

No matter how graceful the flow or beautiful the poses may be, the Federal Appeals Court for the Ninth Circuit held that Bikram Choudhury’s sequence known as Bikram Yoga – 26 poses performed in the same order over 90 minutes...more

Second Circuit Finds EEOC Investigation Not Subject to Review

Recently, the United States Court of Appeals for the Second Circuit held in the matter of Equal Employment Opportunity Commission (“EEOC”) v. Sterling Jewelers Inc. (“Sterling Jewelers”), that the District Court erred by...more

Motion to Quash Service Is Not a Collateral Order and Therefore Not Appealable - United States v. Sinovel Wind Grp. Co.

The U.S. Court of Appeals for the Seventh Circuit concluded that the district court’s denial of defendant Sinovel’s motion to quash service of process is not an appealable order under the collateral order doctrine. The Court...more

Eighth Circuit Upholds FERC Rule on Co-op Avoided Cost Rates

The U.S. Court of Appeals for the Eighth Circuit has upheld the long-standing determination by the Federal Energy Regulatory Commission (FERC) that the avoided cost rate paid by a distribution cooperative for energy purchased...more

Omitted Inventors May Have Standing To Seek Patent Correction Based On “Reputational” Injury

The U.S. Court of Appeals for the Federal Circuit recently ruled that a plaintiff not named as a joint inventor on several patents and pending patent applications has standing to maintain an action to correct inventorship...more

Taking Down the Flagg: Fifth Circuit Remands Med Mal & Device Case for Lack of Diversity Despite Uncompleted Administrative Review...

A divided panel (2-1) of the U.S. Circuit Court of Appeals for the Fifth Circuit recently held that failure to exhaust a state law pre-suit medical panel review process did not subject the plaintiff’s claims against the...more

Phishing for Cybersecurity Coverage: When is a Fraud a “Computer Fraud”?

In late June, the New York Court of Appeals affirmed a trial court ruling that there was no coverage for a health insurance company policyholder, under a “Computer Systems Fraud” rider issued by its insurer, for an underlying...more

The Alabama Supreme Court Allows a Second Bite at the Arbitration Apple

Could a failure to participate in a court-ordered arbitration be enough to waive a party’s right to arbitration? A recent decision of the Alabama Supreme Court suggests it is not. In 2010, Yan Chen entered into a lease...more

Ninth Circuit Addresses When Commuting Time May Be Compensable Under California Labor Code and What Must be Included in a PAGA...

The U.S. Court of Appeals for the Ninth Circuit recently addressed the compensability of commute time under the California Labor Code and the content required in a Private Attorneys General Act of 2004 (PAGA) letter. The...more

Don’t Throw the Class Waiver Baby Out with the Arbitration Agreement Bathwater

Sound advice that the world has lived with since 1512…until recently flushed by the Ninth Circuit. Not so quick to discard 500 years of wisdom, however, the Supreme Court has agreed to consider whether this idiom will rest in...more

Supreme Judicial Court Hears Case Involving Access to Sweat Lodges in Prisons

On October 5, 2015, the Supreme Judicial Court of Massachusetts heard argument in Trapp v. Commissioner of the Department of Corrections, SJC-11863. At issue is whether RLUIPA (and the Massachusetts Constitution) recognize...more

BRING-YOUR-GUN-TO-WORK-DAY? . . . . MAYBE! Swindol v. Aurora Flight Sciences Corporation

Robert Swindol brought his gun to work . . . kind of. He parked his car in the Aurora Flight Services parking lot with his firearm locked inside. Aurora’s mangers learned about the firearm and fired Swindol that day for...more

Rhode Island Supreme Court Addresses Deposition Conduct And Instructions Not To Answer

Rhode Island has long honored the late Professor Robert B. Kent’s teachings on civil procedure, including his opinions concerning depositions. In keeping with Professor Kent’s teachings, Rhode Island courts take the position...more

A Criminal Waste Of Space Foments Securities Law Problem

California Court of Appeal Justice William W. Bedsworth writes the popular syndicated column “A Criminal Waste of Space”.  In this month’s column, Justice Bedsworth expounds on the highly improbable case of a man who...more

U.S. Supreme Court Denies Stay of the DOL Wage Rule for Home Care Workers

The Department of Labor (DOL) promulgated a rule that brings home care workers, employed by third parties, within the protection of the Fair Labor Standards Act (FLSA). As a result, those home care workers employed by an...more

Corwin v. KKR Financial Holdings LLC, No. 629, 2014 (Del. Oct. 2, 2015) (Strine, C.J.)

In this opinion affirming the Court of Chancery’s dismissal of a stockholder challenge to a merger, the Delaware Supreme Court held that the approval of the merger by a fully informed, disinterested stockholder majority...more

Global Private Equity Newsletter - Fall 2015 Edition: Buyer Beware – Court Lowers Hurdle to Make Claim for Withdrawal Liability...

In Tsareff v. ManWeb Services, Inc., the U.S. Court of Appeals for the Seventh Circuit held that an asset purchaser’s pre-closing knowledge of a seller’s potential multiemployer plan withdrawal liability could be sufficient...more

Making a Good Thing Better? NAD’s Plans to Modify Its Procedures

The National Advertising Division (NAD) has for more than 40 years been the premier avenue for self-regulation in the advertising industry. Born in the ’70s at a time when there was pressure from government and consumer...more

Massachusetts Highest Court Issues Important Decision On Insurers’ Duty to Defend and Liability for Multiple Damages

In Boyle v. Zurich American Insurance Company, 472 Mass. 649 (2015), decided on September 14, 2015, the Massachusetts Supreme Judicial Court (the “SJC”) indicated, to the dismay of the insurance defense bar, that the right to...more

Pennsylvania Court Refuses to Enforce “No Damages for Delay” Clause

A Pennsylvania appellate court recently refused to enforce a “no damages for delay” clause and upheld an award of delay damages against a school district where the district actively interfered with a general contractor’s...more

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