News & Analysis as of

En Banc Review

Fifth Circuit Raises New Questions by Ruling that the Fiduciary Rule Is Invalid

by Ropes & Gray LLP on

On March 15, 2018, the Court of Appeals for the Fifth Circuit vacated the DOL’s conflict of interest rule and related exemptions (the “fiduciary rule”). The decision exacerbates what was already significant uncertainty about...more

Ninth Circuit Creates More Uncertainty in 80/20 Rule for Tipped Workers

by FordHarrison on

On February 16, 2018, the United States Court of Appeals for the Ninth Circuit granted en banc review of Marsh v. J. Alexander’s LLC, 869 F.3d 1108, creating a new layer of uncertainty for hospitality employers....more

USPTO Adopts Amgen v. Sanofi, Excises “Newly Characterized Antigen” Test from its Written Description Guidance for Antibody Claims

Last month, the USPTO issued a memorandum to its patent examining corps clarifying its guidance concerning the written description requirement for claims drawn to antibodies. In the memorandum, the USPTO adopts the Federal...more

PTAB Designates § 315(b) Opinions as Informative IPR Precedent

by McDermott Will & Emery on

On the heels of the US Court of Appeals for the Federal Circuit’s en banc opinion in Wi-Fi One, LLC v. Broadcom Corp. holding that § 315(b) time-bar determinations are appealable (IP Update, current issue), the Patent Trial...more

Ninth Circuit Agrees to Reconsider Tip Credit Case

For employers in the hospitality industry, tipping policies continue to pose significant litigation risks. A number of restaurant groups have faced recent class and collective action claims based on allegations that the...more

Court Rules on Sexual Orientation Discrimination

by Harris Beach PLLC on

On February 26, 2018, the Federal appellate court covering New York State ruled that Title VII of the Civil Rights Act of 1964 protects employees from discrimination based on their sexual orientation. The case is Zarda v....more

Support for FTC Jurisdiction Over Broadband: Ninth Circuit En Banc Rules Common Carrier Exemption is “Activity,” and not...

by Kelley Drye & Warren LLP on

The Republican-led FCC’s effort to get out of the business of regulating broadband providers’ consumer practices took a step forward on Monday. In an appeal that has been proceeding in parallel with the FCC’s “Restoring...more

Fourth Circuit Denies BMG request for Panel and En Banc Rehearing

The Fourth Circuit Tuesday denied BMG’s Petition for Rehearing by the panel and the full court. The panel’s opinion, issued February 1, reversed BMG’s $25 million contributory infringement verdict. ...more

UPDATE: The Second Circuit Finds Title VII Protects Against Sexual Orientation Discrimination

by BakerHostetler on

As we discussed in our May 22, 2017 blog post, the Second Circuit agreed to hold an en banc hearing to determine whether an estate for a gay man, who alleged he was terminated as a result of a customer complaint related to...more

Second Circuit Rules Sexual Orientation Discrimination Is Prohibited Under Title VII

In an en banc decision in Zarda v. Altitude Express, Inc., the Second Circuit has become the latest federal appeals court to hold that discrimination on the basis of sexual orientation is prohibited sex discrimination under...more

Title VII Evolution Continues: Another Appeals Court Finds Sexual Orientation Discrimination Actionable

by Fisher Phillips on

Another federal court of appeals decided today that Title VII covers claims of sexual orientation discrimination, continuing the evolution of workplace discrimination law that has begun to sweep over the country in recent...more

Court Agrees, Agencies Overstepped Their Authority. What’s Next for CLO Managers?

by White & Case LLP on

Recent Developments in the Application of US Risk Retention to CLOs - On February 9, 2018, the United States Court of Appeals for the District of Columbia Circuit (the "DC Circuit Court") issued an opinion addressing...more

D.C. Circuit Rules CFPB's View of RESPA Was Wrong but Its Structure is Constitutional

by Ballard Spahr LLP on

On January 31, 2018, the en banc D.C. Circuit handed down its opinion in the PHH v. CFPB case, which we've discussed at length. It held, 7 to 3, that the CFPB's single-director-removable-only-for-cause structure is...more

Sovereign Immunity for State Plaintiffs in Antitrust Class Actions?

The Third Circuit recently denied a petition for rehearing en banc a panel’s earlier decision in the In re Flonase Antitrust Litigation. In that case, the panel decision addressed the degree to which class settlements can...more

Court Grants Rehearing In Light Of Wi-Fi One

by Jones Day on

Eleven days after the Federal Circuit’s en banc opinion in Wi-Fi Onc, LLC v. Broadcom Corp., Nos. 15-1944, -1945 & -1946 (Fed. Cir. Jan. 8, 2018), a three-judge panel granted a petition by patent owner Click-to-Call...more

D.C. Circuit Rules CFPB’s View of RESPA Was Wrong But its Structure is Constitutional

by Ballard Spahr LLP on

On January 31, 2018, the en banc D.C. Circuit handed down its opinion in the PHH v. CFPB case, which we’ve discussed at length. It held, 7 to 3, that the CFPB’s single-director-removable-only-for-cause structure is...more

Federal Circuit Holds En Banc That The PTAB’s Determination on Whether The One Year Time-Bar is Triggered in Inter Partes Review...

On January 8, 2018, the Federal Circuit issued its long-awaited en banc decision in Wi-Fi One, LLC v. Broadcom Corporation, No. 2015-1944, 2018 WL 313065 (Fed. Cir. Jan. 8, 2018). The issue before the en banc Court was the...more

Out Of Time? Federal Circuit Reverses Course On Review Of PTAB Time-Bar Determinations

by Orrick - IP Landscape on

En Banc Decision Remanding to Panel for Consideration of Merits of Petitioner’s Time-Bar Appeal, Fed. Cir. (January 8, 2018) - The Federal Circuit, sitting en banc, found that the decision of the Patent Trial and Appeal...more

Third Circuit Holds Transfer from Non-Debtor Precludes Liability Under Delaware Fraudulent Transfer Law

In Crystallex Int'l Corp. v. Petróleos de Venez., S.A., Nos. 16-4012, 17-1439, 2018 U.S. App. LEXIS 95 (3d Cir. Jan. 3, 2018), the U.S. Court of Appeals held there could be no fraudulent transfer liability under the Delaware...more

Federal Circuit Breathes More Life Into Divided Infringement

by Foley & Lardner LLP on

Enforcing a patent with claims that raise the specter of divided infringement can be a difficult plight for patent owners. Even under the more liberal standard set forth in the Federal Circuit’s en banc decision in Akamai v....more

PTAB Strategies and Insights - January 2018

The PTAB Strategies and Insights Newsletter is designed to be a valuable resource for all stakeholders in the global patent arena throughout the patent life cycle. To that end, articles will provide perspectives from both...more

Timeliness Determinations for Inter Partes Review Now Subject to Appellate Review

by Foley Hoag LLP on

On January 8, 2018, the en banc Federal Circuit, in Wi-Fi One, LLC v. Broadcom Corp., held that a PTAB decision upon institution as to whether a petition for inter partes review is timely under 35 U.S.C. § 315(b) is...more

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

The Supreme Court is taking another patent case, granting certiorari in WesternGeco v. Ion. A divided panel of the Circuit had ruled that the plaintiff was not entitled to lost profits as a result of the sale of components of...more

Wi-Fi, One v. Broadcom: En Banc Federal Circuit Held The Time-Bar Determinations (§ 315(b)) Appealable

n its first en banc decision of 2018, the Federal Circuit held that “judicial review is available for a patent owner to challenge the U.S. Patent and Trademark Office’s determination that the petitioner satisfied the...more

En Banc Federal Circuit Finds PTAB Time Bar Determinations Appealable

by Finnegan – AIA Blog on

On January 10, the en banc Federal Circuit held in Wi-Fi One, LLC v. Broadcom Corp. that inter partes review time bar determinations under 35 U.S.C. § 315(b) are appealable, and explicitly overruled Achates Reference...more

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