vLex United States
U.S. Supreme Court grants stay in case of Rucho v. Common Cause
The U.S. Supreme Court has granted a stay in the case of Rucho v. Common Cause. The order was issued on January 18, 2018. Rucho v. Common Cause challenged the North Carolina congressional map, alleging partisan gerrymandering. See Order.
Jan 22, 2018 9:19 PM
Nevada District Court Holds that a Creditor Must Have a Fully Undisputed Claim to Petition for an Involuntary Bankruptcy
“The Nevada District Court recently held, in Mont. Dept. of Revenue v. Blixseth, that a creditor must have a fully undisputed claim to be a "qualified creditor" that may petition for an involuntary bankruptcy. The Court found that the 2005 amendments to the Bankruptcy Code overruled existing Ninth Circuit precedent that had allowed a creditor to maintain an involuntary petition if at least a portion of its claim was undisputed and the other requirements were met. When seeking qualified petitioning creditors, this narrows the field of eligible co-petitioners.” See Article.
Jan 22, 2018 9:18 PM
CAFC Reverses Course on Reviewing IPR Timeliness
“On January 8, 2018, in Wi-Fi One, LLC v. Broadcom Corp., the Federal Circuit rendered an en banc decision holding that the PTAB's determination that a petition for inter partes review was timely filed is subject to judicial review…After the Supreme Court issued a limited holding, the Federal Circuit granted en banc reconsideration of its precedent, and ultimately held that the PTO's determination that a petition was filed within the one-year time limit is subject to judicial review.6 The court recognized the "strong presumption" in favor of judicial review and distinguished decisions closely related to the PTO's preliminary evaluation of the petition itself (including whether the petition demonstrates a reasonable likelihood that the petitioner will prevail), from the one-year time bar, which (per the Court) represents a statutory limit on the PTO's authority to act.” See Article.
Jan 22, 2018 9:18 PM
U.S. Supreme Court grants certiorari in Trump v. Hawaii
The U.S. Supreme Court has granted certiorari in the case of Trump v. Hawaii on January 19, 2018. Trump v. Hawaii is the latest challenge to the “travel ban.” See Order.
Jan 22, 2018 9:15 PM
Department of Labor’s Newly Issued Association Health Plan Proposed Regulations
“On January 3, 2018, the Department of Labor issued proposed regulations that will make it easier for small employers to band together to form "association health plans" ("AHPs"), thereby providing access to more liberal underwriting and other rules governing large groups.” See Article.
Jan 22, 2018 9:11 PM
TN Supreme Court: section 66-21-101 states only that a statutory lien on personal property, where the lien statute does not specify a method of enforcement, may be enforced by original attachment of the lien-subject property itself
The Tennessee Supreme Court answered the question of whether a repairman's lien arising under Tennessee Code Annotated section 66-19-101 (2015) may be enforced by a method other than attachment of the lien-subject property itself. The Court found that “section 66-21-101 states only that a statutory lien on personal property, where the lien statute does not specify a method of enforcement, may be enforced by original attachment of the lien-subject property itself. It does not address how a creditor might reach the proceeds from the sale of the lien-subject property, and it does not indicate whether there are other remedies possibly available to the creditor who holds the statutory lien.” See Decision.
Jan 22, 2018 9:09 PM
MO Court Holds Arbitration
“A Missouri district court recently held a mandatory arbitration provision was unenforceable in an insurance coverage dispute after an electrician was injured on the job and won an uncontested judgment in state court against Solaris Power Services ("Solaris"). His employer was insured by Liberty Mutual and had excess insurance through AEGIS. The plaintiffs in the present case, including Solaris, sued both insurers and alleged they should have been additional insureds under both policies and their coverage claims were wrongly denied. AEGIS moved to stay the proceedings and compel arbitration pursuant to a mandatory arbitration provision in its excess insurance policy. The various parties disputed which state's law applied. The court ultimately denied the motion, holding the mandatory arbitration provision was unenforceable.” See Article.
Jan 22, 2018 9:04 PM
DOJ releases memo on immigration case priorities and court performance measures
The U.S. Department of Justice has released a memorandum on January 17 regarding case priorities and immigration court performance measures. The memo clarifies EOIR priorities and goals, stating that “All cases involving individuals in detention or custody, regardless of the custodian, are priorities for completion.” The memo also provides court-based performance measures that will be tracked and regularly audited. See Memorandum.
Jan 22, 2018 9:02 PM
Real Estate Weekly
Jan 20, 2018 11:46 AM
Ninth Circuit Concludes Cosmetology Students are Not Employees of School
“On December 18, 2017, the Ninth Circuit held in Benjamin v. B&H Education, Inc., F.3d, No. 15-17147, 2017 WL 6460087, that cosmetology students were not employees of their schools. In doing so, the Ninth Circuit joined the Second and Eleventh Circuits in adopting the primary beneficiary test to determine whether students are employees. The Benjamin case was the first to reach a decision from the Ninth Circuitand joined many other jurisdictions that had previously dismissed virtually identical cases (including a recent affirmance of summary judgment by the U.S. Court of Appeals for the Seventh Circuit).” See Article.
Jan 19, 2018 9:21 PM
Presumption in Favor of Unmasking Copyright Infringers
“The US Court of Appeals for the Sixth Circuit recognized "a presumption in favor of unmasking anonymous defendants when judgment has been entered for a plaintiff." Signature Management Team v. Doe, (White, J) (Suhrheinrich, J, dissenting). The split panel declined to adopt a per se rule in favor of unmasking, however, preserving a district court's power to maintain a defendant's anonymity where unmasking would chill the defendant's ‘significant . . . non-infringing anonymous speech.’” See Article.
Jan 19, 2018 9:20 PM
3rd Circuit Court vacates district court injunction imposing county-based signature-gathering requirements for aspiring parties
The 3rd Circuit Court has vacated an injunction entered by the district court in a dispute arguing that Pennsylvania election laws were unconstitutional as they applied to certain “aspiring parties.” “The District Court entered the permanent injunction, imposing county-based signature-gathering requirements that the Aspiring Parties must meet in order to appear on the ballot.” The 3rd Circuit Court found that the record was inadequate to support the signature gathering requirements and thus the injunction should be vacated. See Decision.
Jan 19, 2018 9:19 PM
First Amendment of the U.S. Constitution
Author Laura Anastasia discusses the First Amendment of the U.S. Constitution and the court cases that have developed this body of law over the years. This includes the topics, freedom of speech, religion, press, assembly, and petition. See Article.
Jan 19, 2018 9:14 PM
3rd Circuit Court: plan participant bargaining power is not a substantive element of a top-hat plan
The 3rd Circuit has found that a so-called "top-hat" plan, which is ‘a plan which is unfunded and is maintained by an employer primarily for the purpose of providing deferred compensation for a select group of management or highly compensated employees’ does not need to comply with many of the substantive provisions of the Employee Retirement Income Security Act of 1974 ("ERISA"). In this case the plaintiff argued that the defendants should have to prove that plan participants had bargaining power before concluding that he participated in a top-hat plan. However, the Court found that plan participant bargaining power is not a substantive element of a top-hat plan. See Decision.
Jan 19, 2018 9:13 PM
Eleventh Circuit Affirms Award of Attorneys’ Fees Incurred by Individuals for Stay Violation in Damages Action on Appeal
“Addressing an issue of first impression in the Eleventh Circuit, the Court in Mantiply v. Horne (In re Horne), 876 F.3d 1076 (11th Cir. 2017), recently held that section 362(k)(1) of the Bankruptcy Code authorizes payment of attorneys' fees and costs incurred by debtors in successfully pursuing an action for damages resulting from an automatic stay violation and in defending the damages award on appeal.” See Article.
Jan 19, 2018 9:12 PM
Homeland Security removes Haiti, Belize and Samoa from H2A and H2-B eligibility
The Secretary of Homeland Security has determined that Belize, Haiti and Samoa should no longer be designated as countries eligible for H-2A and H-2B visas because they are not meeting the standards set out in the regulation. Specifically, it is noted that Haitian nationals have a history of high rates of refusals and high levels of fraud and overstaying. Samoa, additionally, is currently listed as “at risk of non-compliance.” See Notice.
Jan 19, 2018 9:11 PM
Anticipation Requires More than a Reference that Discloses all the Elements
“In Microsoft Corp. v. Biscotti, Inc., Nos. 2016-2080, -2082, -2083, 2017 WL 6613262 (Fed. Cir. Dec. 28, 2017), a divided Federal Circuit panel affirmed the Patent Trial and Appeal Board's decision that Microsoft failed to prove that the challenged claims of Biscotti's patent were unpatentable. Microsoft had argued to the Board that a single reference ("Kenoyer") anticipated two independent claims, claims 6 and 69, and that Kenoyer in combination with other references anticipated or rendered obvious claims depending from claims 6 and 69.” See Article.
Jan 19, 2018 9:10 PM
New York Times Upfront
Jan 19, 2018 11:46 AM
Gilead Seeks Supreme Court Review of Outlier Ninth Circuit FCA Ruling
“On December 26, 2017, defendant Gilead Sciences Inc. filed a petition for certiorari, requesting the Supreme Court to review a major Ninth Circuit False Claims Act (FCA) ruling on liability in United States of America ex rel. Campie v. Gilead Sciences Inc. The petition argues that the Ninth Circuit adopted an approach to materiality that is inconsistent with the guidelines provided by the Supreme Court in Universal Health Services, Inc. v. United States ex rel. Escobar, and conflicts with other appellate interpretations of Escobar's materiality guidance. This is a case with significant implications for the Government contracts community, as the Ninth Circuit's approach dilutes the protections offered by Escobar to FCA defendants.” See Article.
Jan 18, 2018 9:57 PM
Tax Court Rules Family Office is Engaged in a Trade or Business
“On December 13, 2017, in Lender Management, LLC v. Commissioner, the U.S. Tax Court ruled that a family office, Lender Management, LLC ("Lender Management"), was "carrying on a trade or business" as an investment manager rather than serving as a passive investor and therefore was entitled to deduct expenses under Section 16211 as opposed to Section 212. This Tax Court decision is a favorable outcome for similarly-situated family offices because trade or business expenses generally can be deducted under Section 162 without limitation.” See Article.
Jan 18, 2018 9:57 PM
Alabama District Court dismisses claims challenging Alabama Photo Voter ID Law
The Northern District Court of Alabama has granted a motion for summary judgment dismissing all claims filed challenging the Alabama Photo Voter Identification Law, Ala. Code § 17-9-30. The Court reasoned that “Minorities do not have less opportunity to vote under Alabama’s Photo ID law, because everyone has the same opportunity to obtain an ID. Black, Hispanic, and white voters are equally able to sign a voter registration form or registration form update. They have the same opportunity to get to a registrar’s office, and to the extent there is a difference in convenience, they have the same opportunity to request a home visit. Insofar as it is less convenient for the poor to get an ID than it is for those who have greater means, that is as true for poor whites as it is for poor minority voters.” See Decision.
Jan 18, 2018 9:56 PM
Virginia District Court Orders Discovery in FERC Enforcement Case Against Powhatan
“On December 28, 2017, the U.S. District Court for the Eastern District of Virginia held that Powhatan Energy Fund LLC, Dr. Houlian Chen, and two funds owned by Dr. Chen are entitled to a full civil trial in FERC's action to enforce penalties against Respondents for allegedly manipulating electricity markets. Notably, the District Court held that a plenary civil trial was required because Respondents elected to forego a formal hearing before a FERC Administrative Law Judge ("ALJ"). In lieu of a hearing before a FERC ALJ, Respondents instead elected to have FERC assess penalties upon finding a violation occurred, based on the investigative record. Thus, according to the District Court, a proper administrative record was never developed and Respondents were never permitted an opportunity to conduct their own independent discovery.” See Article.
Jan 18, 2018 9:54 PM
House Subcommittee Evaluates CFIUS Operations and Authority
“The House Financial Services Subcommittee on Monetary Policy and Trade considered expert testimony on reforming the Committee on Foreign Investment in the United States ("CFIUS"). CFIUS evaluates proposed transactions that could result in a foreign entity gaining control of a U.S. business. Based on its evaluations, CFIUS is able to recommend that the President reject a transaction or take other mitigating action. In addition to calling for the allocation of additional resources for CFIUS, panelists made several recommendations to improve operational effectiveness and efficiency.” See Article.
Jan 18, 2018 9:53 PM
7th Circuit Court reverses grant of petition for writ of habeas corpus in Brendan Dassey case
The 7th Circuit Court has reversed the grant of a petition for a writ of habeas corpus in the case of Brendan Dassey. The Court found that “The state court decision that Dassey confessed voluntarily was not an unreasonable application of Supreme Court precedent. The state appellate court drew on fairly detailed findings of fact, which were not clearly erroneous, and provided a terse but sufficient explanation for why the trial court's decision was a reasonable application of the broad totality-of-the-circumstances test.” See Decision.
Jan 18, 2018 9:52 PM
Federal Court Enjoins North Dakota Physician Practice Merger
“On December 15, 2017, United States Magistrate Judge Alice Senechal of the District of North Dakota entered an order preliminarily enjoining the merger between two large physicians practices in the Bismarck/Mandan market, Sanford Bismarck and Mid-Dakota Clinic, PC, on the grounds that the proposed merger would substantially lessen competition in four physician service lines: General Surgery, OB/GYN, Adult Primary Care and Pediatric Services.” See Article.
Jan 18, 2018 9:49 PM
9th Circuit Court: post-discovery delay does not preclude equitable tolling but is still relevant to assessing a party's overall diligence
The 9th Circuit Court has ruled regarding post-discovery delay and equitable tolling. The Court found that “post-discovery delay does not preclude equitable tolling but is still relevant to assessing a party's overall diligence.” In this case the bankruptcy court had dismissed claims where the estate of the debtor discovered allegedly fraudulent transfers days before the statute of limitations on avoidance claims was set to expire. The bankruptcy court dismissed the action as time barred and held that the estate's delay in filing after discovering the transfers precluded equitable tolling. See Decision.
Jan 18, 2018 9:48 PM
Journal of Thought
Jan 18, 2018 11:46 AM
Vanderbilt Journal of Transnational Law
Jan 18, 2018 11:46 AM
Church & State
Jan 18, 2018 11:46 AM
Journal of Accountancy
Jan 18, 2018 11:46 AM