News & Analysis as of

Standard of Review

First District Upholds CEQA Categorical Exemption for Approval of Planned Parenthood Clinic in City of South San Francisco,...

by Miller Starr Regalia on

When a lead agency finds a project approval to be categorically exempt from CEQA, this determination at the initial step of CEQA’s multi-tiered process necessarily includes an implied finding that no exceptions to the...more

Am I Being Clear Enough? – PTAB Reaffirms Lower Pre-Issuance Threshold for Indefiniteness in Ex Parte McAward

On August 25, 2017, the Patent Trial and Appeal Board issued a precedential opinion in Ex Parte McAward, reaffirming the Patent Office’s use of a lower pre-issuance threshold for indefiniteness distinct from the Supreme...more

Does California Side With Delaware Or New York On Special Litigation Committee Reviews?

by Allen Matkins on

As discussed in the two preceding posts, Nevada’s Supreme Court last week decided to adopt New York’s standard of review of special litigation committee recommendations to dismiss stockholder derivative suits. In re Dish...more

Supreme Court Declines to Resolve Circuit Split on Debt Recharacterization

On August 10, 2017, the U.S. Supreme Court rescinded the grant of certiorari in PEM Entities LLC v. Levin on the grounds that review had been “improvidently granted.” The case seemingly provided a perfect vehicle to resolve...more

Fresh From the Bench: Precedential Patent Cases From the Federal Circuit

In Allied v. OSMI, the Circuit affirms dismissal of a declaratory judgment action even though Allied’s Mexican distributors had been sued in Mexico on a corresponding Mexican patent. In a first Waymo v. Uber case, the panel...more

Federal Circuit Review - August 2017

by Knobbe Martens on

District Court Abused Discretion in Ignoring Federal Circuit Mandate to Reconsider Attorneys’ Fees Under Octane Fitness - In Adjustacam, LLC v. Newegg, Inc., Appeal No. 2016-1882, the Federal Circuit held that a district...more

Well, Isn't That a Special Use? Navigating the Special Use Permit Process in North Carolina

by Ward and Smith, P.A. on

North Carolina statutes provide that cities and counties may issue special use permits in accordance with the principles, conditions, safeguards, and procedures specified in their zoning regulations. A special use permit...more

In re Martha Stewart Living Omnimedia, Inc. Stockholder Litigation: MFW Provides Recipe for Protecting One-Sided Controller...

by Perkins Coie on

In its opinion in In re Martha Stewart Living Omnimedia, Inc. Stockholder Litigation,[1] issued in August 2017, the Delaware Chancery Court addressed a question left open under Kahn v. M&F Worldwide Corp.[2] (MFW)—namely,...more

Antitrust Alert: European Court Of Justice Publishes Long-Awaited Judgment In The Intel Case

by Jones Day on

September 2017 What happened? Last week the European Court of Justice ("ECJ") set aside a General Court ruling that had upheld a €1.06 billion fine imposed by the European Commission on Intel for abusing its dominant position...more

Intel Ruling: General Court Failed to Examine All of Intel’s Arguments, Court of Justice Says

On September 6, 2017, the Court of Justice of the European Union (CJEU) quashed the 2014 judgment of the General Court (GC) that upheld a fine of €1.06 billion ($1.5 billion) on Intel Corporation Inc. (Intel) for abusing a...more

EU Court Orders New Assessment of Intel's Rebates

by Dechert LLP on

The Court of Justice of the European Union (CJEU) has quashed a ruling by the EU’s General Court which had upheld the European Commission’s (EC) 2009 finding of abuse of dominance by Intel Corporation Inc. Intel was fined...more

New era dawning in EU competition law? CJEU endorses an effects-based assessment of rebates and sets aside lower court’s judgment...

by White & Case LLP on

Intel and the effects-based approach in EU competition law - On 6 September 2017, the Court of Justice of the European Union ("CJEU" or "Court") essentially held in Intel1 that the European Commission ("Commission") cannot...more

“A Reasonable Adjudicator Would have Wanted to Review this Evidence.”

In Ultratec, Inc. v. Captioncall, LLC., [2016-1706, 2016-1707, 2016-1708, 2016-1709, 2016-1710, 2016-1712, 2016-1713, 2016-1715, 2016-2366] (August 28, 2017), the Federal Circuit vacated and remanded Board decisions...more

Department Of Labor Challenges ALJ’s Decision On Google’s Obligation To Respond To OFCCP Data Requests

In July, we reported that an Administrative Law Judge (“ALJ”) had ruled on OFCCP’s dispute with Google over the tech giant’s refusal to turn over certain documents in connection with a routine audit of Google’s headquarters....more

Blog: Martha Stewart Decision Draws Roadmap for Controller Sales to Third Parties

by Cooley LLP on

A transaction involving a controlling stockholder on both sides of the deal presents a clear conflict of interest that will result in heightened scrutiny under the “entire fairness” standard of review if later challenged....more

In Precedential Decision, Board Says Packard, Not Nautilus, Governs Indefiniteness During Pre-Issuance Examination

by Jones Day on

...In a recent (and rare) precedential decision, the Board reaffirmed that the Supreme Court’s decision in Nautilus does not change “the USPTO’s long-standing approach to indefiniteness” in the context of pre-issuance...more

Stronger Patents Act: 5 Significant Proposed Changes to Inter Partes Reviews

by Revision Legal on

Recently, Senator Christopher Coons (D-Del) introduced the STRONGER Patents Act of 2017. So far, this is the only legislation introduced in this Congress addressing any sort of patent reform. The proposal would significantly...more

FERC Failed to Adequately Consider Environmental Impacts of Downstream GHG Emissions Under NEPA Says D.C. Circuit

by Perkins Coie on

The U.S. Court of Appeals for the District of Columbia last week vacated and remanded a 2016 Order by the Federal Energy Regulatory Commission that had authorized construction and operation of the Southeast Market Pipelines...more

Superior Court Explains Bootstrapping Doctrine

by Morris James LLP on

In Re Bracket Holding Corp. Litigation, C.A. N15C-02-233 WCC CCLD (July 31, 2017) - This decision is an excellent explanation of the “bootstrapping doctrine” that seems to often befuddle litigants....more

9th Circuit Clarifies Standard For Article III Standing Based On Statutory Violations

On August 15, 2017, the 9th Circuit, in Thomas Robins v. Spokeo, Inc., reversed the district court’s dismissal of an action alleging willful violations of the Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681 et seq. The 9th...more

From the Top In Brief - July/August 2017

by Jones Day on

In Midland Funding, LLC v. Johnson, No. 16-348, 2017 BL 161314 (U.S. May 15, 2017), the U.S. Supreme Court ruled that a credit collection agency does not violate the Fair Debt Collection Practices Act ("FDCPA") when it files...more

District Court Finds Hospital’s Joint Venture Not “Per Se” Unlawful

On the eve of trial, and after years of litigation (including an appeal to the Sixth Circuit), all claims by Dayton, Ohio hospital The Medical Center at Elizabeth Place (“MCEP”) against Premier Health Partners (“Premier”)...more

Why The Federal Circuit Revisited Written Description

by Foley & Lardner LLP on

In Stanford University v. The Chinese University of Hong Kong (Fed Cir. No 2015-2011, June 27, 2017), the Federal Circuit vacated and remanded interference decisions on the ground the Patent Trial and Appeal Board (“Board”)...more

BRI-Proof Your Claims

By Bryan K. Wheelock, Principal There are many benefits to employing means + function claiming under 35 USC §112(f).  The Federal Circuit recently pointed out a new one: protecting your claims from the application by the...more

The Supreme Court of Canada Clarifies the Personal Liability of Directors in Oppression Cases

by Bennett Jones LLP on

In Wilson v. Alharayeri, 2017 SCC 39 [Alharayeri], the Supreme Court of Canada in a unanimous decision provides significant guidance as to when directors ought to be held personally liable for oppressive conduct under the...more

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Cybersecurity

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