News & Analysis as of

Supreme Court Denies Further Stay of Department of Labor's Home Care Rule; Effective Date is Imminent

On August 21, 2015, the U.S. Court of Appeals for the D.C. Circuit upheld the U.S. Department of Labor’s (DOL) Home Care Rule and reversed the lower court’s decisions vacating the new rule. On October 6, 2015, the U.S....more

Texas Court: No Prejudice Required to Deny for Late Reporting Under a Claims-Made Policy

This summer in Nicholas Petroleum, Inc. v. Mid-Continent Cas. Co., 2015 WL 4456185, 2015 Tex. App. LEXIS 7489 (Tex.App., Jul. 21, 2015), a Dallas panel of Texas’ intermediate level appellate court rejected policyholder...more

Financial Services Quarterly Report - Third Quarter 2015: Recent Developments in U.S. “Excessive Fee” Litigation

The U.S. mutual fund industry is poised to see significant developments in the ongoing wave of Section 36(b) “excessive fee” litigation. Days apart in August, the Seventh Circuit Court of Appeals affirmed the grant of summary...more

D.C. Circuit Upholds Bank’s Standing to Challenge Constitutionality of CFPB

The D.C. Circuit Court of Appeals reversed a district court decision dismissing a bank’s challenge to the constitutionality of the CFPB based on lack of standing. The district court had previously concluded that compliance...more

Massachusetts Court Refuses to Apply Discovery Rule to Commencement of the Suit Limitations Period

Monday, in Nurse v. Omega U.S.  Insurance., Inc., 2015 Mass. App. LEXIS 158, 2015 WL 5774390 (Mass.App., Oct. 5, 2015), a unanimous panel of Massachusetts’ intermediate level appellate court held that the two-year suit...more

Enablement: Multiple Measurement Methods Can Lead to the Same Result - Ethicon Endo-Surgery, Inc. v. Covidien, Inc.

Addressing the issues of indefiniteness and non-infringement for both utility and design patents, the U.S. Court of Appeals for the Federal Circuit reversed and vacated in part the district court’s grant of summary judgment...more

Should I Stay or Should I Go? The Third Circuit Explains How Courts Should Balance Clashing Stay Factors

The United States Court of Appeals for the Third Circuit recently issued a rare opinion addressing the analysis courts should undertake when considering a request to stay a trial court judgment or order pending appeal. The...more

You’ve Got Mail! But Can You Get It Into Evidence?

With the advent of electronic discovery, emails and web pages are now common and fertile areas of discovery. However, until its 2014-2015 term, the Rhode Island Supreme Court had not addressed the means by which emails and...more

Sixth Circuit Takes the Bait: Worm Farm Employees Fit Under FLSA Agricultural Exemption for Overtime

Providing legal scholars nationwide a unique opportunity to opine on worm-farming, the Sixth Circuit Court of Appeals held on Friday, October 2, that farm workers involved in the growing of bait worms are exempt overtime...more

Florida Court Confirms Substantial Compliance Standard Concerning Foreclosures

The Florida Second District Court of Appeal recently issued a long-awaited opinion in Green Tree Servicing v. Milam. Until this decision, the district courts in Florida had not spoken directly on the issue of whether strict...more

When is a Vehicle Not a “Vehicle”?

Two police officers were riding in a police car that was struck by an intoxicated underinsured driver. The officer in the passenger seat suffered serious injuries that were inadequately compensated by the tortfeasor’s...more

Kentucky Supreme Court Sets Forth Helpful Principles On Liability For Punitive Damages

Cases in which an appellate court holds that a state’s standard for punitive liability was not satisfied even though there was sufficient evidence to support liability for the underlying causes of action are regrettably rare....more

Discovery Rules Continue to Evolve for Cases Involving Social Media

Your social media content is not only susceptible to hacking; it’s also susceptible to disclosure requests from civil litigants (see our Sept. 14 blog post for more details) and even prosecutors without your consent if they...more

Ninth Circuit Steals a PAGe from California Courts’ Playbook

Since the California Supreme Court’s 2014 ruling in Iskanian v. CLS Transportation that claims under the Private Attorneys General Act (“PAGA”) are not subject to arbitration, California federal district courts have rejected...more

Hudson Energy Denied Administrative Priority for Electricity Sold Pre-Bankruptcy

In a September 18, 2015 order, the U.S. District Court for the Southern District of New York affirmed a bankruptcy court order denying administrative claim treatment to Hudson Energy Services, LLC (“Hudson”) for its retail...more

Patent Owner’s Licensing Program Was Fatal to Its Patent Infringement Theory - JVC Kenwood Corporation v. Nero, Inc.

Addressing whether an accused defendant infringed patents through the distribution of its software, the U.S. Court of Appeals for the Federal Circuit upheld the district court’s summary judgment that the defendant did not...more

Employee's Change in Racial Self-Identification Cannot Support Discrimination Claim if Employer Unaware of Change

In recent years, more Americans have begun identifying themselves as biracial or of mixed racial heritage. This shift has resulted in changes to census and other forms where people are asked to self-identify by race. In...more

Design Immunity of Public Entities: Sometimes Designs, Like Recipes, are Better Left Alone

April 23, 1985 will live in infamy. It was the day the Coca-Cola Company announced it was changing its “secret” recipe and introducing a new kind of Coke, referred to by the public as simply, “new Coke.”...more

Construction Defect – Pre-Litigation Procedures of the “Right to Repair Act”

McMillin Albany LLC, et al. v. The Superior Court of Kern County - California Court of Appeal, Fifth Appellate District (August 26, 2015) - Civil Code section 896 (§ 896) is part of a statutory scheme commonly...more

CLIENT ALERT: Delaware Supreme Court Finds That Fully Informed Stockholder Vote Approving Merger Invoked Business Judgment Rule

Corwin v. KKR Financial Holdings LLC, No. 629, 2014 (Del. Oct. 2, 2015). In this opinion affirming the Court of Chancery’s dismissal of a purported class action challenging an acquisition transaction, the Delaware...more

Can an insurer be liable for bad faith failure to settle without a settlement demand?

The Tenth Circuit, applying Oklahoma law, recently became the latest court to rule on this frequently-disputed issue. The court ruled that, while a primary insurer has an affirmative duty to initiate settlement negotiations...more

Eleventh Circuit adopts and clarifies "primary beneficiary" test for unpaid interns under the FLSA

On September 11, 2015, the US Court of Appeals for the Eleventh Circuit handed down a landmark decision clarifying the circumstances under which unpaid interns are entitled to receive compensation under the Fair Labor...more

Arbitration of Nursing Home Suits: Take Two

Quasi Tort Reform in Nursing Home Litigation Is on the Way! Last fall, I posted a blog about the national trend of including arbitration provisions in nursing home admission agreements. This trend peaked following the...more

South Carolina Supreme Court Finds Employee Cannot Sue for Breach of Contract and Wrongful Discharge

As with most states, South Carolina recognizes an exception to its general employment at-will doctrine. Employers may terminate employees with or without cause, but not for any reason that violates the state’s public policy....more

Settlement – Recovering Costs Under CCP § 998 – Multiple Defendants’ Settlement Offer

Brian Kahn v. The Dewey Group, et al. - California Court of Appeal, Second Appellate District (September 8, 2015) - Code of Civil Procedure section 998 (§ 998) is a tool that allows litigants to further settlement...more

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