News & Analysis as of

Waivers Appeals

Chris Lazarini Examines Dismissal of Claims Applying Res Judicata Standard

by Bass, Berry & Sims PLC on

Bass, Berry & Sims attorney Chris Lazarini examined a case filed by Morgan Stanley against Defendant in a FINRA arbitration over an un-paid promissory note. The Defendant answered without asserting counterclaims, but later...more

Making the Sausage: Lower Courts Grapple With the Supreme Court’s TC Heartland Venue Decision

The United States Supreme Court decided earlier this year that a 1957 opinion is still valid and still limits venue choices for patent infringement actions under 28 U.S.C. § 1400. See TC Heartland LLC v. Kraft Foods Group...more

Second Circuit Court of Appeals Reaffirms Strong Federal Preference for Enforcing Arbitration Agreements in the Evolving Era of...

by Foley & Lardner LLP on

In a big win for the tech industry and app developers, and for other companies seeking to enforce arbitration agreements through web-based interactions, last week the Second Circuit Court of Appeals held that the plaintiff in...more

California Defendants Beware: Failing to Compel Arbitration Against Named Plaintiff Could Have Far-Reaching Consequences

California defendants in class actions should be wary of seeking a strategic advantage by litigating before seeking to compel arbitration. The Court of Appeal held recently in Sprunk v. Prisma LLC that a defendant in class...more

Federal Appeals Court Limits U.S. EPA’s General Waiver Authority under the Renewable Fuel Standards Program

by Miles & Stockbridge P.C. on

In a recent decision, the U.S. Court of Appeals for the District of Columbia Circuit determined that the U.S. Environmental Protection Agency (U.S. EPA) wrongly invoked its general waiver authority and set the volumes for...more

Employee Must Pay Union Dues If the Employee Fails to Timely Revoke Dues Checkoff Agreement

by Clark Hill PLC on

On August 10, 2017, the Michigan Court of Appeals finally delivered an opinion on the lawfulness of so called "window periods" for revoking union dues obligations (as opposed to union membership) for Michigan public sector...more

Does Disclosure Of Results Of Internal Investigation Constitute Subject Matter Waiver?

by Allen Matkins on

Last Friday, I wrote about one of the docketed appeals in Wynn Resorts, Limited v. Eight Jud. Dist. Ct., 41 Nev. Adv. Op. 52 (2017). Today’s post concerns the other docketed appeal in that case. This appeal addressed...more

Chris Lazarini Discusses Burden-Shifting Analysis in Discrimination Case

by Bass, Berry & Sims PLC on

Bass, Berry & Sims attorney Chris Lazarini discussed a case in which the plaintiff, a former stockbroker, sued his employer after he was terminated claiming discrimination under the ADA and ADEA. Under these statutes and...more

Chris Lazarini Comments on When Appellate Courts May Consider Arguments Not Raised Below

by Bass, Berry & Sims PLC on

Bass, Berry & Sims attorney Chris Lazarini commented on a case in which a former commodities broker appealed a decision ordering him to pay restitution to his former firm which had made its customers whole after the broker's...more

Lewis v. Clarke And The Failed Expedition To Secure Tribal Rights: SCOTUS Rules Against Tribal Employee Immunity

by Fisher Phillips on

The U.S. Supreme Court unanimously ruled yesterday that tribal sovereign immunity does not apply to employees who are sued in their individual capacities, even if the alleged wrongdoing occurs while the employee is acting...more

What is the Effect of an Untimely Challenge to the Timeliness of a Trustee’s Sale?

by Snell & Wilmer on

Ever wonder what happens if a person challenges the timeliness of a trustee’s sale after the sale already occurred? Waiver of the argument of course! And, in the case of Wells Fargo Bank, N.A. v. Waltner, the affirmance of...more

Vague Claim Construction Arguments Before The PTAB May Trigger A Waiver On Appeal

by Brinks Gilson & Lione on

The Patent Trial and Appeal Board (PTAB) upheld the patentability of U.S. Patent No. 8,601,154 (“the ‘154 patent”), owned by SimpleAir, Inc. (“SimpleAir”) in an inter partes review petition filed by Google. Google Inc. v....more

Federal Circuit is No Place to Make New Claim Construction Arguments

The Federal Circuit has consistently made clear that arguments not first made to the PTAB will not be considered on appeal. Google fell victim to this well-worn concept in Google Inc. v. SimpleAir, Inc., 2016-1901 (CAFC March...more

Uber Steers for Mandatory Arbitration

by Robins Kaplan LLP on

After its bid to compel arbitration stalled in the district court, Uber is gearing up to argue before the Second Circuit that its users waive their right to a jury trial when they sign up for its app. The defendants in...more

Under Construction - March 2017

by Snell & Wilmer on

Letter from the Editor - Welcome to the spring 2017 edition of our Under Construction newsletter. We hope 2017 is off to a good start for you and your company. An issue that seems to commonly come up in cost-plus...more

California Court of Appeal Affirms Validity of Hospital Meal Period Waivers

The ability of hospitals to use meal period waivers was called into question by a 2015 Court of Appeal decision in Gerard v. Orange Coast Memorial Medical Center (Gerard I), which held that the provision in Wage Order 5...more

California Court Confirms Healthcare Meal Waivers Have Always Been Valid

by Fisher Phillips on

In a somewhat unusual ruling last week, a California Court of Appeal announced that its previous February 2015 decision in the case of Gerard v. Orange Coast Memorial Medical Center, which partially invalidated healthcare...more

Supreme Court of Pennsylvania Holds That Failure to File Brief in Support of Properly Filed Post-Trial Motion Does Not Waive...

In a recent decision, Board of Supervisors of Willistown Township v. Main Line Gardens, Inc., the Supreme Court of Pennsylvania unanimously held that a party does not waive all issues on appeal when it fails to file a...more

West Coast Real Estate Update: February 2017 #2

by Holland & Knight LLP on

Jury Trial Waiver Undone by a Fundamental California Policy - It is common for commercial contracts to contain a choice of law provision. Some commercial contracts may even contain a clause that waives the right to seek...more

Court Of Appeal Voids Jury Trial Waiver Notwithstanding New York Choice of Law

by Allen Matkins on

A New York state of mind, but California dreaming - A sophisticated lender and borrower negotiate a loan agreement in New York, the lender disburses the loan proceeds in New York, and both parties agree that New York law...more

In 2016 the Texas Supreme Court Continues to Favor Arbitration

by Strasburger & Price, LLP on

In 2016, the Texas Supreme Court issued three important opinions affecting arbitration agreements. The most significant was Hoskins v. Hoskins, 497 S.W.3d 490 (Tex. 2016). The issue in that case was whether a party seeking to...more

Alternative Duties for Alternative Entities: High Court Allows LLC and LLP Managers to Limit or Waive Fiduciary Duties

by Pierce Atwood LLP on

The nation’s leading forum for business and shareholder disputes recently confirmed that alternative entities such as limited liability companies (LLCs), limited partnerships (LPs) and master limited partnerships (MLPs) can...more

Wisconsin Court of Appeals Enforces Parties’ Stipulation to Remedies and Waiver of Judicial Review in Administrative Proceeding

by Foley & Lardner LLP on

While many of us spent this past Halloween gorging on a variety of candies and sweets, Wisconsin’s court of appeals was busy rendering an opinion that likely left Travis Technology High School (“Travis Tech”) with a decidedly...more

Sometimes It’s Hard to Waive Subrogation: Pacific Indemnity v. Deming

by Cozen O'Connor on

According to the recent decision of the U.S. Court of Appeals for the First Circuit in Pacific Indemnity Company v. Deming, 2016 WL 3607028, 2016 U.S. App. LEXIS 12374 (July 5, 2016) common contractual provisions that...more

Divided Third Circuit Panel Holds That Waiver Of Arbitration Clause Does Not Apply To Futile Arguments

by Carlton Fields on

On July 13, 2016, a U.S. Court of Appeals for the Third Circuit panel held that an arbitration clause is not waived simply because a party failed to raise a futile argument. The case arose out of a putative class action...more

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