Split of Authority

News & Analysis as of

Ninth Circuit Invalidates Arbitration Agreement with Class Action Waiver

On August 22, 2016, the Ninth Circuit joined the Seventh Circuit in the split amongst U.S. Circuit Courts of Appeal on the issue of enforceability of employment arbitration agreements precluding class actions. The Ninth...more

Ninth Circuit Holds Class Action Waivers Are Unenforceable

In a strong blow to employers, the Ninth Circuit Court of Appeals recently released its opinion in Stephen Morris, et al. v. Ernst & Young, et al., No. 13-16599, D.C. No. 5:12-cv-04964-RMW (August 22, 2016), holding that...more

Ninth Circuit Invalidates Class Action Waivers Contained in Employment Arbitration Policies

Beginning in approximately 2012, the National Labor Relations Board (“NLRB”) adopted the position that any class action waiver contained in an employment arbitration policy or agreement violates the right of employees to...more

Texas District Court Enjoins Federal Gender Identity Protection Of Students

Seyfarth Synopsis: In State of Texas v. United States, a District Court issued a nationwide injunction to enjoin the Department of Education and Department of Justice from enforcing their guidelines on accommodations for...more

Divide Deepens Over Enforceability of Class Arbitration Waivers

The U.S. Court of Appeals for the Ninth Circuit (covering California and eight other western states) on Monday joined the Seventh Circuit, and disagreed with the Fifth Circuit, in rejecting a mandatory employment arbitration...more

And Now There Are Two: The Ninth Circuit Strikes Class Arbitration Waivers Joining the Seventh Circuit on Finding that these...

Seyfarth Synopsis: The Ninth Circuit joined the Seventh Circuit and the NLRB in finding that mandatory arbitration agreements that require all claims to be brought by employees on an individual basis violate the NLRA. On...more

Wisconsin District Court Follows 5th Circuit: Internal Tipsters Are Not Considered “Whistleblowers” Under Dodd-Frank

On August 12, 2016, the U.S. District Court for the Eastern District of Wisconsin in Lamb v. Rockwell Automation Inc., No. 15-CV-1415-JPS (E.D. Wis. Aug. 12, 2016) held that the Dodd-Frank whistleblower protection provision...more

Seventh Circuit Holds Title VII Does Not Prohibit Sexual Orientation Discrimination, But Acknowledges Inherent Flaws in Precedent...

In a carefully reasoned but ultimately restrained opinion the Seventh Circuit held that Title VII does not prohibit discrimination in employment on the basis of sexual orientation. While declining to become the first circuit...more

Seventh Circuit Holds That Title VII Does Not Cover Sexual Orientation

Seyfarth Synopsis: The Seventh Circuit has ruled that Title VII does not provide protection from discrimination on the basis of sexual orientation. However, the reasoning behind the Court’s ruling seems calculated to bring...more

The Writing is on the Wall, Yet Seventh Circuit Holds Sexual Orientation Is Not a Protected Class Under Title VII

Earlier this week, the Seventh Circuit Court of Appeals held in Hively v. Ivy Tech Community College that Title VII does not protect employees or offer redress for discrimination based on sexual orientation. As a result,...more

Troubled Waters: The Raging Storm Over Safe Harbors

Two United States courts recently issued decisions involving the scope of the Bankruptcy Code’s safe-harbor provision in section 546(e) related to avoidance actions. In one, in the Second Circuit, the court took a broad...more

Seventh Circuit: Section 546(e) Safe Harbor Does Not Shield From Avoidance Transfers Made Through Financial Institution Conduits

In FTI Consulting, Inc. v. Merit Management Group, LP, the Seventh Circuit recently held that transfers are not protected under the safe harbor of section 546(e) of the U.S. Bankruptcy Code from fraudulent transfer and other...more

In Conflict With Other Circuits, Seventh Circuit Rules That Certain Transfers Involving Financial Institution Intermediaries Not...

Section 546(e) of the bankruptcy code prohibits a bankruptcy trustee from avoiding “settlement payment[s]”, or payments “made in connection with a securities contract,” that are “made by or to (or for the benefit of)”...more

The VPPA and PII: Is Geolocation Another Anonymous Identifier?

Video Privacy Protection Act - This article explores how personally identifiable information has been defined in leading Video Privacy Protection Act actions and looks at how concerns over the potential sensitivity of...more

Are Those Taxes Owing On Your Late-Filed Tax Return Dischargeable? Maybe, But You Better Be In The Right Circuit

Individual debtors with old tax debts relating to late-filed tax returns may be surprised to find that those tax debts may not be dischargeable under section 523(a) of the Bankruptcy Code due to the lateness of the tax...more

Justices Receive Another Petition on Surcharge Laws

Could the U.S. Supreme Court take up the issue of state surcharge laws? The plaintiffs challenging the Texas law banning surcharges on credit card purchases certainly hope so, having filed a certiorari petition in Rowell v....more

First Circuit Issues Potentially Significant Ruling on Federal Video Privacy Statute’s Application to Mobile Apps

The First Circuit Court of Appeals’ recent decision in Yershov v. Gannett Satellite Information Network, Inc., — F.3d —-, Case No. 15-1719, 2016 WL 1719825 (1st Cir. Apr. 29, 2016), may carry important implications for mobile...more

Attack on waivers of class action claims

Some companies ask their employees to sign arbitration agreements requiring them to arbitrate any disputes about their employment, rather than filing a lawsuit against the employer in a state or federal court. A few years...more

Is Music Sampling Back En Vogue?

The mere mention of Madonna conjures many images and associations: feminism, reinvention, Kabbala, the cone bra, and her many memorable performances. But today we have yet another thing to associate with the Material Girl: an...more

A Look at an Insured's Post-Loss Duty to Cooperate: Exactly How Much Cooperation is Necessary?

The Eleventh Circuit Court of Appeals reaffirmed that an insurer is entitled to summary judgment when its insured fails to abide with the policy’s cooperation clause, a condition precedent to filing suit.  See Wu v. Safeco...more

The Enforceability of Anti-Oral Variation Clauses

A recent ruling sets a precedent that no longer allows a contractual clause that purports to preclude variation other than in writing to be regarded as uniformly enforceable. In a recent case concerning the breach of an...more

Seventh Circuit Finds Class Action Waiver Unenforceable in Arbitration Agreements, Creates Split among Circuits

The Seventh Circuit Court of Appeals recently dealt a blow to employers when it held in Jacob Lewis v. Epic Systems Corporation that arbitration agreements that prohibit employees from seeking class, collective or...more

Federal Circuit Recognizes New, but Limited, Privilege for Patent Agent Communications

Introduction - Patent agents are licensed to practice before the United States Patent and Trademark Office (“USPTO”), and perform the same duties as patent attorneys in proceedings before the USPTO, including preparing...more

Music Sampling Back in “Vogue”

With its decision in VMG Salsoul v. Ciccone, the Ninth Circuit Court of Appeals created a circuit split that could greatly impact copyright infringement claims based on unlicensed music sampling. For the advertising...more

Things Are Not Always What They Appear in UK Commercial Contracts

Anti-oral variation clauses do not prohibit oral variation. The Court of Appeal in Globe Motors Inc v TRW Lucas Variety Electric Steering Ltd (“Globe Motors”) recently provided much overdue clarification on the...more

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