News & Analysis as of

De Novo Standard of Review

Banking: Year in Review and What to Expect

2017 was a great year for banks across a wide spectrum, and we believe 2018 holds tremendous promise, so long as the credit condition of borrowers does not deteriorate and banks continue to lend prudently. Below we count down...more

FERC Enforcement Litigation Update: Defendants Cannot Take Discovery of FERC’s Decision Not to Pursue Enforcement Cases Against...

One of the big Federal Energy Regulatory Commission (FERC) Enforcement litigation developments of the past two years has been the federal judiciary’s rejection of the agency’s “de novo review” position in electricity market...more

FDA 2017 Year in Review: Refining Medical Device Pathways and Introducing Pilot Programs to Promote Quality

This is the third installment of our year-in-review series covering major developments at FDA.  While the previous two installments, pertain to FDA actions on drugs and biologics, this post will address developments related...more

Win or Lose, Trademark Applicants Must Pay USPTO’s Attorney Fees in District Court Appeals, Says Eastern District of Virginia

On October 26, 2017, the Eastern District of Virginia became the latest court to weigh in on the USPTO’s position regarding whether trademark applicants who appeal adverse TTAB decisions directly to a district court for de...more

FDA Finalizes De Novo Evaluation Guidance and Issues Associated Refuse to Accept Checklist

by Hogan Lovells on

On October 30, 2017, the Food and Drug Administration (FDA or the Agency) released its final De Novo request guidance document entitled, De Novo Classification Process (Evaluation of Automatic Class III Designation) (Final...more

The Perils of De Novo Review

Florida’s Third District Court of Appeal issued an opinion yesterday that highlights the perils of de novo review. De novo review is the broadest standard of review for an appellate court, reserved for construing pure...more

ERISA: Discovery of Claims Procedures to Assess Compliance with DOL Regulations? Not So Fast.

You know that failing to follow Department of Labor (DOL) claims regulations can result in the court using the de novo review standard, rather than the abuse of discretion standard in reviewing claim decisions....more

Seventh Circuit Upholds Exclusion of Expert Testimony that “Cumulative Exposure” Equals Causation in Asbestos Cases

by Reminger Co., LPA on

An essential element in an asbestos case is proof that an exposure to a particular defendant’s product is a substantial factor in causing the injury. To satisfy their burden, plaintiffs rely upon testimony from experts. ...more

Second Circuit Scraps District Court’s Denial of Uber’s Motion to Compel Arbitration

On August 17, 2017, the Second Circuit Court of Appeals vacated a district court’s denial of Uber’s and Mr. Travis Kalanick’s motions to compel arbitration in a case involving price-fixing accusations. In Meyer v. Kalanick,...more

Un-Vacated: Nevada Supreme Court Confirms $6.7M Franchise Arbitration Award

In a decision that is very skinny on the facts, a unanimous Nevada Supreme Court recently un-vacated a significant arbitration award in a dispute over dental franchises. In Half Dental Franchise, LLC v. Houchin, 2017 WL...more

Midyear Banking Review

by Bryan Cave on

Topics covered include: • stock market performance (banks down for the six months, but still way up over the last 12 months); • merger and acquisition activity (same number but larger than last year, plus a more in depth look...more

Federal Lawmakers Consider Drop in De Novo Applications

What are the reasons behind the decline in new bank and credit union charter applications? What happened - Members of the House Financial Services Financial Institutions and Consumer Credit Subcommittee considered this...more

Federal Circuit Upholds Claim Construction – No Due Process Violations

by Jones Day on

On May 8, 2017, in Intellectual Ventures II LLC v. Ericsson Inc., 15-1739, the Federal Circuit affirmed the Patent Trial and Appeal Board’s (PTAB) inter partes review (IPR) claim constructions in a non-precedential decision....more

Fifth Circuit’s Pierre Deference In ERISA Cases Trumps Texas’s Anti-Discretionary Language Statute

by DeWitt Law, LLC on

In Ariana M. v. Humana Health Plan of Texas, Inc., No. 16-20174, 2017 U.S. App. LEXIS 7072(5th Cir. Apr. 21, 2017), which involved a claim for benefits under an ERISA-governed health policy, the Fifth Circuit held that...more

Ninth Circuit: EEOC Has Broad Subpoena Powers

On remand from the United States Supreme Court, the Ninth Circuit again vacated a District Court’s Order denying enforcement of an administrative subpoena issued to an employer by the Equal Employment Opportunity Commission...more

Back to Basics – Costly Consequences of Ignoring Process in Benefits Administration

The stories of an employer and a long-term disability insurer and claims fiduciary for an ERISA plan, defendants in two recent cases, ring so true. In the first case, the insurer was designated as claims fiduciary for an...more

Grounding Deferential Review in California – No Preemption for Discretionary Clause Ban

by Seyfarth Shaw LLP on

Seyfarth Synopsis: In a decision with wide ranging implications, the Ninth Circuit has ruled that a discretionary clause in an employer drafted plan document is subject to, and invalidated by, California’s insurance...more

Supreme Court of California Ruling Elevates Responsible Agency Role Under CEQA - City's EIR Erred by Failing to Fully Disclose and...

by Holland & Knight LLP on

In Banning Ranch Conservancy v. City of Newport Beach, et al., the Supreme Court of California held that lead agencies need to expressly disclose and consider the jurisdictional claims and regulatory opinions of responsible...more

Employment Law - April 2017 #2

NLRB Affirms New Standard on Employee Email Use - Why it matters - A divided National Labor Relations Board (NLRB) affirmed that if an employer provides employees with access to the email system, then employee use of email...more

Fifth Circuit: Discretionary Ban Does Not Mandate De Novo Review

by Seyfarth Shaw LLP on

In Ariana M. v. Humana Health Plan of Texas, Inc., No. 16-20174 (5th Cir. Apr. 21, 2017), the Firth Circuit concluded that Texas’ ban on discretionary clauses in certain insurance policies did not require a de novo review of...more

Supreme Court Grants Cert on, of all Things, the Standard of Review for Determining Non-Statutory Insider Status

by Bryan Cave on

Last December, we updated you that the Supreme Court was considering whether to grant review of In re The Village at Lakeridge, LLC, 814 F.3d 993 (9th Cir. 2016). Our original post is here. On March 27, 2017, the Supreme...more

Supreme Court Confirms Deferential Standard of Review for EEOC Subpoenas

Earlier this month, the Supreme Court confirmed that federal appeals courts should apply a deferential standard of review to federal district court determinations regarding the legal sufficiency of EEOC subpoenas....more

Supreme Court: District Court EEOC Subpoena Enforcement Decisions Subject to Abuse of Discretion

by Holland & Knight LLP on

The Supreme Court of the United States issued its decision on April 3, 2017, in McLane Co., Inc. v. Equal Employment Opportunity Commission, a case which presented the question of what the appropriate standard of appellate...more

I’ll Defer To You: Supreme Court Rules Appellate Courts Should Apply Abuse Of Discretion Standard When Reviewing EEOC Subpoena...

Recently, in McLane Co., Inc. v. EEOC, case number 15-1248 , the United States Supreme Court clarified the standard for when an appellate court reviews a trial court’s order to enforce or quash a subpoena from the EEOC....more

FDA authorizes first direct-to-consumer genetic test panel for predisposition to Alzheimer's disease and other serious disorders

by DLA Piper on

The FDA has announced its decision to grant a de novo application submitted by 23andMe for the company's direct-to-consumer (DTC) Personal Genome Service Genetic Health Risk ("GHR") tests. The GHR test panel currently...more

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