Split of Authority

News & Analysis as of

Courts Send Mixed Messages on Standing for Plaintiffs in Data Breach Litigation

New decisions from two federal courts may allow defendants in data breach class action litigation to breathe somewhat easier, following a run of adverse decisions last year. These decisions illustrate an emerging trend of...more

HHS Psychiatric Hospital Reimbursement Methodology Upheld

On December 29, 2015 the U.S. Court of Appeals for the District of Columbia rejected a challenge to a psychiatric hospital's pre-PPS Medicare reimbursement. Washington Regional Medicorp v. Burwell, No. 1:13-cv-00622 (D.C....more

Florida 5th DCA Says Referral Relationships Not Protectable

A recent case out of Florida’s Fifth District Court of Appeals raises important raises important issues related to physician non-compete agreements. Let’s take a look: Before addressing the specifics of this case, some...more

Supreme Court to Review Insider-Trading Decision on Personal Benefit

On January 19, 2016, the Supreme Court agreed to review the Court of Appeals for the Ninth Circuit's decision concerning the "personal benefit" required to establish a claim for insider trading. The grant of certiorari in...more

USPTO Implementation of AIA Does Not Violate Due Process: Federal Circuit Affirms the PTAB Panel Determining Institution of an IPR...

In Ethicon Endo-Surgery, Inc. v. Covidien LP, a 2-1 panel split of the Federal Circuit held that neither the American Invents Act (“AIA”) nor the Constitution precludes the same panel of the Patent Trial & Appeal Board...more

‘Cannibal Cop’ Decision Restrains Employers

Second Circuit ruling on data theft creates more inconsistency regarding federal law’s reach. In December, a divided panel of the U.S. Court of Appeals for the Second Circuit in U.S. v. Valle interpreted the Computer...more

Measuring Medical Expense Damages and the Role of the Collateral Source Rule

Two recent rulings illustrate the widely varying responses courts have taken in confronting an emerging national issue: how to measure damages for past medical expenses when the hospital’s treatment charges, before discounts...more

Health Update - December 2015

Lessons from Hawaii's Trailblazing ACA 1332 Waiver Proposal - Editor's Note: On September 9, Hawaii became the first state to post a draft 1332 waiver proposal for public comment. While Hawaii's proposal focuses on the...more

False Claims Act: 2015 Year in Review

This year continued the trend of aggressive False Claims Act (FCA) enforcement by the Department of Justice (DOJ) and high volumes of qui tam lawsuits brought by whistleblowers. In fiscal year 2015, the DOJ marked the fourth...more

Cybersecurity and Data Privacy and E-Discovery and Information Management: Second Circuit Draws Line Between Employees and Hackers...

Employers in New York face a heightened hurdle to holding employees legally accountable for theft and other misuse of company data after the Second Circuit’s recent decision in United States v. Valle. The Court has held that...more

California Appellate Court Holds Groundwater Pumping Fees are Property-Related Fees Subject to Prop. 218

Decision Conflicts with a Separate Appellate Court Decision to be Considered by the California Supreme Court - In Great Oaks Water Company v. Santa Clara Valley Water District, originally issued March 26, the Sixth...more

ERISA Trumps State Law Claims in Anthem Data Breach

The U.S. District Court for the Northern District of California ruled that the Employee Retirement Income Security Act (ERISA) preempts state-law claims arising out of Anthem’s data breach in Smilow, et al. v. Anthem Life &...more

Class Action Issues at the Supreme Court (and Elsewhere)

In addition to being on the warpath about cy pres class action settlements, we try to keep an eye on various other issues related to the much-abused Fed. R. Civ. P. 23. First, we’re pleased as punch to let you know that all...more

US Supreme Court to Decide Fate of FCA’s Implied Certification Theory

Supreme Court grants certiorari in qui tam case to consider viability and scope of the “implied certification” theory of liability under the False Claims Act. On December 4, the US Supreme Court granted certiorari in...more

Pennsylvania Supreme Court Rejects Continued Employment as Sufficient Consideration for Non-Compete

The Pennsylvania Supreme Court recently held in Socko v. Mid-Atlantic Systems of CPA, Inc. that a non-compete is enforceable only if a current employee receives new consideration beyond continued employment. The Court held...more

California Law and Background Screening

Happy post-Thanksgiving! News flash for the background screening industry as well as users of background checks in California. The California Supreme Court has agreed to consider whether the Investigative Consumer Reporting...more

ELL SCOTUS SERIES: # 2 – Spokeo, Inc. v. Robins

In the second periodic installment of the Employment Law Lookout Blog Team’s analysis of employment law (and related) case being heard by the United States Supreme Court this term, read on for our take on Spokeo Inv. v....more

Employees and “Authorized Access”: A Threat from Within?

Workplace privacy has become an increasingly challenging issue for employees and employers alike. With technological advancements, employers have enhanced visibility into employee behavior including their use of company...more

Corporate Investigations & White Collar Defense - October 2015

"Wherefore Art Thou Due Process?" Part III - Why it matters: It is time for another installment in our continuing "Wherefore Art Thou Due Process?" coverage into the ongoing constitutional challenges to the SEC's...more

IREG Update - October 2015 #2

Hot Topic - The FIO's criticism of state regulators regarding captive reinsurance framework - The Federal Insurance Office in its September 2015 "Annual Report on the Insurance Industry" criticizes state insurance...more

Supreme Court Asked To Clarify Application of Rule 9(b) in FCA Cases

On September 21, 2015, counsel for AT&T, Inc., and other telecommunications providers asked the U.S. Supreme Court to resolve a circuit split over what relators asserting FCA claims must do to meet Federal Rule of Civil...more

Post-Newman Reality: Investigations Involving Unwitting “Tips” to Close Friends and Relatives Will Continue

Earlier this week, the United States Supreme Court declined to hear the federal government’s appeal of the ruling by the Court of Appeals for the Second Circuit in U.S. v. Newman. This leaves intact the Second Circuit’s quid...more

September 2015: Product Liability Litigation Update

Ninth Circuit Restricts Scope of CAFA’s “Local Single Event” Exception. In Allen v. Boeing Co., 784 F.3d 625 (9th Cir. 2015), the Ninth Circuit recently held that a case did not fall within the Class Action Fairness Act’s...more

Employment Law - October 2015

FTC Offers Employers Lesson in FCRA Compliance—And Limited Exceptions - Why it matters: A California employer recently received a lesson in Fair Credit Reporting Act (FCRA) compliance from the Federal Trade...more

Ninth Circuit Blesses Iskanian

On September 28, 2015, the Ninth Circuit Court of Appeals issued a 2-1 decision in the long-awaited case of Sakkab v. Luxottica Retail North America, Inc. (No. 13-55184, D.C. No. 3:12-cv-00436-GPC-KSC) (“Sakkab”). The Court...more

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