News & Analysis as of


Federal Circuit Review - February 2018

by Knobbe Martens on

Improperly Drafted Employment Agreement Leads to Dismissal of Patent Case Due to Lack of Standing - In Advanced Video Technologies LLC v. HTC Corporation et al., Appeal Nos. 2016-2309, 2016-2310, 2016-2311, the Federal...more

Missouri Supreme Court Talc Decision Alters Landscape

by Polsinelli on

On March 6, the Missouri Supreme Court declined to review the intermediate appellate court’s decision in Fox v. Johnson & Johnson, which vacated a $72 million talc verdict awarded in St. Louis City Court. ...more

Joint Employer Standard: Whiplash!

by Akerman LLP - HR Defense on

In a surprising move, the National Labor Relations Board has overturned its recent decision that had overruled an expansive joint employer standard set forth by the previous Obama-era Board. So, at least for the time being,...more

NLRB Vacates Joint Employer Decision Based on Possible Conflict

Earlier this year, EmployNews reported that the National Labor Relations Board had reversed its controversial 2015 Browning-Ferris decision, which set a new standard for joint employer liability for labor law violations. In...more

NLRB Vacates Hy-Brand Decision

by Steptoe & Johnson PLLC on

On February 26, 2018, the National Labor Relations Board (“NLRB”) issued an Order vacating its decision in Hy-Brand Industrial Contractors, Ltd. and Brandt Construction Co., 365 NLRB No. 156 (2017) (“Hy-Brand”). The decision...more

FERC Has Options If Court Of Appeals Seeks To Shut Down An Operating Interstate Pipeline

by Pierce Atwood LLP on

Can an interstate natural gas pipeline continue to operate if a court vacates its certificate authorizations? On January 31, 2018, in Sierra Club v. FERC, No. 16-1329 (D.C. Cir.), the United States Court of Appeals for the...more

NLRB Asks D.C. Circuit to Revive Review of Joint Employer Standard Under BFI; Hy-Brand Decision Vacated Following NLRB Ethics...

On March 1, 2018, the Deputy Associate General Counsel for the National Labor Relations Board (“NLRB”) asked the D.C. Circuit to revive its review of the Obama-era Browning-Ferris Industries, 362 NLRB No. 186 (2015) (“BFI”)...more

NLRB Vacates Recent Decision Narrowing Joint-Employer Standard; Broad Browning-Ferris Test Back in Play For Now

by Hogan Lovells on

As we previously reported, the National Labor Relations Board (Board) on December 14, 2017 issued a decision in Hy-Brand Industrial Contractors scrapping a broad and controversial “joint employer” standard in favor of a...more

A Bronx Lobster Tale: NLRB Vacates Election Results Based On Seven Minute Delay In Voting

by Seyfarth Shaw LLP on

Last month, the National Labor Relations Board (“NLRB”) vacated election results from a representation election because the Board agent opened the polling for a voting session 7 minutes late....more

NLRB Gives Browning-Ferris a Stay of Execution

by Stinson Leonard Street on

On Monday February 26, 2018, the NLRB unanimously vacated its recent Hy-Brand decision from December 14, 2017, effectively reinstating the Obama-era Browning-Ferris test for determining joint-employer status established in...more

NLRB Flip Flops On Browning Ferris Standard For Joint Employment (Again)

by Pepper Hamilton LLP on

Q. What is the standard for determining whether two companies are joint employers? A. On February 26, the National Labor Relations Board (NLRB) decided unanimously to vacate its decision in Hy-Brand Industrial...more

NLRB Joint Employer Whiplash

by FordHarrison on

The National Labor Relations Board (“NLRB” or “Board”) has vacated its decision in Hy-Brand Industrial Contractors, Ltd., (“Hy-Brand”), thereby reinstating the joint employer standard created by the Obama Board in the...more

One Minute You’re In, the Next, You’re Out: NLRB Vacates the Short-Lived Hy-Brand Decision and Reinstates the Browning-Ferris’...

by Dickinson Wright on

As we reported just last December, the National Labor Relations Board (NLRB or Board), issued Hy-Brand Industrial Contractors Ltd. and Brandt Construction Co., which overturned the 2015 Browning-Ferris Industries case that...more

The Supreme Court’s Current Cases On Jurisdictional Rules, Consolidation, And Plain Error

by Ellis & Winters LLP on

In a term chock-full of blockbuster cases, the three cases featured here won’t make many top 10 lists. But for appellate litigators, these cases are likely to figure much more prominently in their daily practice than cases...more

Third Circuit Vacates Insider Trading Sentence Based In Part On Third-Party's Trading

by Shearman & Sterling LLP on

On February 14, 2018, the United States Court of Appeals for the Third Circuit vacated Steven Metro’s 46-month prison sentence for insider trading and remanded the case to the district court for resentencing. United States...more

ABOUT FACE! Under Pressure, NLRB Vacates Joint Employer Standard and Returns to Browning-Ferris

In an unexpected and critical turn of events, after extensive political pressure, the NLRB, sitting as a three-member panel comprised of Chairman Kaplan and Members Pearce and McFerran, vacated last year’s decision in...more

National Labor Relations Board Vacates Hy-Brand and Returns to Browning-Ferris Joint Employer Standard

by Franczek Radelet P.C. on

Yesterday, the National Labor Relations Board issued an Order abruptly vacating its decision in Hy-Brand Industrial Contractors. In Hy-Brand, issued in December, the Board overturned the controversial joint employer standards...more

Second Circuit Continues To Give A Close Look To Supervised Release Conditions

In a recent nonprecedential summary order, the Second Circuit (Winter, Lynch, Chin) vacated and remanded a sentence due to a condition of supervised release that prohibited the defendant from having unsupervised contact with...more

Fourth Circuit Finds Arbitration Award Not Confirmable Because Not “Final”

The Fourth Circuit issued an opinion last week in an under-developed area of arbitration law: when are awards “mutual, final, and definite”? This is an important issue because under Section 10(a)(4) of the Federal...more

DC Circuit Court Newsflash: “Transfer” means “Transfer”

by Dechert LLP on

In an eagerly anticipated (and much speculated upon) decision, a three judge panel of the United States Court of Appeals for the District of Columbia Circuit (“DC Circuit Court”) issued a unanimous opinion on Friday, February...more

Multi-Million Dollar Nationwide Class Settlement Vacated By Ninth Circuit

by Jackson Lewis P.C. on

In a “major blow to multistate class actions,” according to the dissenting opinion in Espinosa v. Ahearn (In re Hyundai & Kia Fuel Econ. Litig.) 2018 U.S.App.LEXIS 1626 (January 23, 2018), the Ninth Circuit vacated a class...more

The Tenth Circuit Says That The Reasonableness Of Religious Accommodations Relating To Employees’ Observance Of Sabbath Requires...

by Seyfarth Shaw LLP on

Seyfarth Synopsis: The Tenth Circuit has recently vacated summary judgment in favor of an employer in a religious accommodation case that centers on what constitutes a “reasonable” accommodation of an employee’s observance of...more

Second Department Vacates Trial Court Order Requiring Removal of Trespassing Structure: Will Money Damages Compensate the...

by Farrell Fritz, P.C. on

On January 24, 2018 the Appellate Division, Second Department affirmed in part, and reversed in part, a trial court order granting Defendant, Bay Ridge Methodist’s counterclaim that certain cladding and a drip edge (a system...more

In Re: Nordt Development Co., LLC

by Knobbe Martens on

Federal Circuit Summaries - Before Moore, Taranto, and Stoll. Appeal from the Patent Trial and Appeal Board. Summary: In a product-by-process claim, terms that can be equally understood as structural or process...more

Board’s Obvious Analysis Improperly Relied Upon Hindsight

In Polaris Industries, Inc. v. Arctic Cat, Inc., [2016-1807, 2016-2280] (February 9, 2018), the Federal Circuit affirmed in part, vacated in part, and remanded the PTAB’s determination in an IPR that claims of U.S. Patent No....more

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