vLex United States
California’s FEHC Adopts New National Origin Discrimination Regulations
“On July 1, 2018, new regulations from California's Fair Employment and Housing Council (FEHC) that clarify protections from national origin discrimination will go into effect. The new regulations are extensive and include clarifications on the definitions of "national origin" and "national origin groups," the permissible and prohibited types of employer policies governing language restrictions in the workplace, the permissible and prohibited inquiries regarding immigration status, and the permissible and prohibited types of height and weight requirements for work.” See Article.
Jun 15, 2018 8:18 PM
U.S. Supreme Court affirms judgment by an equally divided court in case of Washington v. United States
In the case of Washington v. United States, the U.S. Supreme Court affirmed the judgment by an equally divided Court, with Justice Kennedy not taking part in the decision. The case questioned whether the state of Washington violated a Native American fishing treaty through an action that would reduce the fish population. See Decision.
Jun 15, 2018 8:17 PM
Federal Judge Rules D&O Coverage for Wrongful Acts Extends to Responding to Government Subpoenas
“US District Judge Manish S. Shah in the Northern District of Illinois [recently] denied insurers' motion to dismiss a pharmaceutical company's action seeking insurance coverage for the costs associated with responding to a US Department of Justice subpoena in an ongoing healthcare fraud investigation. The opinion notably expands the scope of the factors courts consider in determining whether a particular insurance policy's "Wrongful Act" requirement was met for the purposes of activating an insured's policy coverage.” See Article.
Jun 15, 2018 8:16 PM
U.S. Supreme Court upholds Ohio voter removal procedure
On June 22, the U.S. Supreme Court held that “the process that Ohio uses to remove voters on change-of-residence grounds does not violate the Failure-to-Vote Clause or any other part of the NVRA.” The Ohio process to remove voters begins by sends those who have not voted in two years “a pre-addressed, postage prepaid return card, asking them to verify that they still reside at the same address. Voters who do not return the card and fail to vote in any election for four more years are presumed to have moved and are removed from the rolls.” See Decision.
Jun 15, 2018 8:15 PM
ND of CA Dismisses Class Action Against Biopharmaceutical Company Alleging Fraud Based on Undisclosed Problems with Hepatitis B Vaccine in Trials and FDA Approval Process
“On June 4, 2018, Judge Yvonne Gonzalez Rogers of the United States District Court for the Northern District of California dismissed with prejudice a class action alleging that Dynavax Technologies Corporation and its executives violated Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 by alleging omitting information about its hepatitis B vaccine. In re Dynavax Securities Litigation. The Court's decision is another in a long line of decisions declining to find a securities violation when a pharmaceutical company is alleged to have concealed adverse developments in clinical trials.” See Article.
Jun 15, 2018 8:14 PM
Federal Circuit Distinguishes Between Enablement and Reasonable Expectation of Success
“In the recent UCB v. Accord opinion, a panel of the Federal Circuit drew a distinction between (i) the enablement of a patentee's claims, and (ii) a reasonable expectation of success in an obviousness analysis. The majority found that the presumption of enablement for a claimed genus of compounds did not preclude a finding that there was not a reasonable expectation of success in creating a species falling within that genus.” See Article.
Jun 15, 2018 8:11 PM
Virginia Supreme Court: General Assembly did not intend to abrogate some common law causes of action when they enacted § 8.01-226.12
The Supreme Court of Virginia has reversed a trial court judgment and held that when enacting Code § 8.01-226.12, the General Assembly did not intend to abrogate the common law causes of action involved in this case. Here, the complaint was filed after the plaintiff suffered damages after being exposed to mold in their apartment. See Decision.
Jun 15, 2018 8:11 PM
Eastern District of Pennsylvania Holds that Plaintiffs Forfeited American Pipe Tolling by Filing Their Lawsuit Too Soon
“A federal district court has dismissed with prejudice a Real Estate Settlement Procedures Act (RESPA) class action filed against JPMorgan Chase Bank N.A. and related entities on statute of limitations grounds a year after finding that the continuing violations doctrine applied to RESPA.” See Article.
Jun 15, 2018 8:09 PM
False Claims Act: Eastern District of New York Dismisses Case Alleging Fraud Against Federal Reserve Banks
“The U.S. District Court for the Eastern District of New York decided a long-running whistleblower case last month, which alleged that Wells Fargo and its predecessors-in-interest had defrauded Federal Reserve Banks (FRBs) in order to borrow money at lower interest rates. In United States v. Wells Fargo & Co., the Court ultimately dismissed the False Claims Act (FCA) case, which had been remanded from the Second Circuit in September 2017.” See Article.
Jun 14, 2018 8:36 PM
California Court of Appeal Holds that ‘Safe Harbor’ Defense Precludes Suit Based on Presence of Inorganic Arsenic in Wines
“Last month, the Court of Appeal of California, Second Appellate District, Division Four, issued an opinion in Charles v. Sutter Home Winery, Inc. The court considered the Plaintiffs' appeal of their dismissed putative class action complaint brought under the Safe Drinking Water and Toxic Enforcement Act of 1986, commonly known as Proposition 65. The appeal challenged the adequacy of the warning label that the Defendants, a group of wine suppliers, provided on wines that contained allegedly unsafe levels of inorganic arsenic, a chemical listed by the State of California as a carcinogen and a reproductive toxicant (a "listed chemical"). In a win for the wine industry, the Court of Appeal upheld the dismissal of the case.” See Article.
Jun 14, 2018 8:35 PM
U.S. Supreme Court holds that after a class certification denial a class member may not commence a new class action after the applicable statute of limitations period
On June 11, the U.S. Supreme Court held that “[u]pon denial of class certification, a putative class member may not, in lieu of promptly joining an existing suit or promptly filing an individual action, commence a class action anew beyond the time allowed by the applicable statute of limitations.” See Decision.
Jun 14, 2018 8:35 PM
The VA Mission Act of 2018 and Potential Opportunities for Providers
“After a concerted effort, the bipartisan bill to reform the way care is delivered to Veterans has been signed into law. While there are a number of significant reforms, perhaps none are so critical as those related to the ability of Covered Veterans (the Veteran) to receive their care outside of the current VA system, and from private health care providers. Through the establishment of the Veterans Community Care Program, a system will be created which will allow qualifying services to be provided to Veterans who, under the provisions of the VA Mission Act of 2018 are not able to receive timely and appropriate care to which the Veteran is entitled.” See Article.
Jun 14, 2018 8:33 PM
Wyoming Supreme Court overrules their precedent disfavoring shared child custody
On May 14, the Supreme Court of Wyoming overruled their precedent disfavoring shared child custody and affirmed the district court’s ruling giving the parties shared legal and physical custody until the child enters kindergarten, and giving the father primary physical custody with visitation for the mother. See Decision.
Jun 14, 2018 8:32 PM
Should the President’s Tweets Create a ‘Public Forum’?
“You might be aware that the President of the United States has a Twitter account. You might not be aware that each time he uses the account to post information about government business, the President opens a new "public forum" for assembly and debate. According to District Judge Naomi Reice Buchwald's decision in Knight First Amendment Institute v. Trump, the government controls the "interactive space" associated with the President's tweets and may not exercise that control so as to exclude other users based on the content of their speech. In other words, the District Court wrote, the First Amendment regulates the President's conduct on Twitter and prohibits him from blocking other users from replying to his political tweets.” See Article.
Jun 14, 2018 8:31 PM
In Unanimous Ruling, US Supreme Court Limits Criminal Restitution Orders under the Mandatory Victims Restitution Act
“In Lagos v. United States, decided on May 29, 2018, the U.S. Supreme Court unanimously held that restitution orders under the Mandatory Victims Restitution Act (MVRA) are limited to fees and expenses incurred during government investigations and criminal proceedings. Following Lagos, a criminal defendant is not required under the MVRA to pay a corporate victim's investigatory and legal fees associated with internal investigations or related civil and bankruptcy proceedings.” See Article.
Jun 14, 2018 8:30 PM
DOJ Announces Place to Worship Initiative
“The Department of Justice  announced the “Place to Worship Initiative,” which will focus on protecting the ability of houses of worship and other religious institutions to build, expand, buy, or rent facilities—as provided by the land use provisions of the Religious Land Use and Institutionalized Persons Act (RLUIPA).” See Press Release.
Jun 14, 2018 8:29 PM
U.S. Supreme Court upholds Minnesota statute revoking beneficiary designations make to ex-spouses
The U.S. Supreme Court has upheld a Minnesota statute which provides that “'the dissolution or annulment of a marriage revokes any revocable . . . beneficiary designation . . . made by an individual to the individual's former spouse.’ Minn. Stat. §524.2-804, subd. 1.” In it's analysis the Court uses the two-part test set forth in Allied Structural Steel v. Spannaus to determine whether the state law has "operated as a substantial impairment of a contractual relationship." The Court found 3 aspects of the law that, when taken together, “show that the law does not substantially impair pre-existing contractual arrangements.” See Decision.
Jun 13, 2018 8:07 PM
Foreign Debtors’ Forum Shopping Warranted Stay of U.S. Avoidance Litigation
“In In re National Bank of Anguilla (Private Banking Trust) Ltd., the court, on grounds of forum non conveniens and comity, stayed litigation commenced in a chapter 11 case by two Anguillan banks to avoid fraudulent transfers in deference to the banks' Anguillan administration proceedings and litigation pending in an Anguilla court involving the same issues. The court concluded that the debtors, whose Anguillan administrations it had previously recognized under chapter 15, had engaged in forum shopping by filing the avoidance litigation in the U.S. after: (i) commencing chapter 11 cases for that purpose; and (ii) commencing litigation in Anguilla with the same parties regarding the same transactions and nucleus of facts.” See Article.
Jun 13, 2018 8:06 PM
California Judicial Council revises court rules requiring that settlements involving judicial officers, using public funds, be disclosed when requested
On May 24, the California Judicial Council “revised the rules of court to clarify that any settlement agreements involving judicial officers for which public funds were spent in payment of the settlement must be disclosed if requested, including agreements related to complaints of sexual harassment and discrimination.” See Press Release.
Jun 13, 2018 8:05 PM
California Supreme Court Rules Broadly in Favor of Insureds
“On Monday, June 4, 2018, the California Supreme Court ruled that an insurance company must provide liability coverage to its corporate insured against claims of negligent hiring, retention, and supervision of its employee, who allegedly sexually assaulted a 13-year-old child.” See Article.
Jun 13, 2018 8:04 PM
President Donald Trump and Kim Jong Un hold summit in Singapore
On June 12, President Donald Trump and Kim Jong Un, of North Korea, held a summit in Singapore. “President Trump committed to provide security guarantees to the DPRK, and Chairman Kim Jong Un reaffirmed his firm and unwavering commitment to complete denuclearization of the Korean Peninsula.” See Press Release.
Jun 13, 2018 8:03 PM
Tax Court Sustains Energy Credit and Bonus Depreciation for Distributed Generation Solar Projects
“In a recent case, the Tax Court ruled in the taxpayer's favor as to three California distributed generation solar projects' eligibility for the energy credit under Section 48 and bonus depreciation under Section 168. However, the Tax Court did reduce the taxpayer's basis in the projects, and the taxpayer in the case enjoyed significant procedural advantages due to mistakes by the IRS.” See Article.
Jun 13, 2018 8:03 PM
U.S. Supreme Court finds defendants' constitutional restrain allegations moot
The U.S. Supreme Court has held that the claims filed by two defendants, alleging that the Southern District Court of California’s policy permitting the use of full restraints is in violation of the constitution is moot. The defendants’ criminal cases ended before the 9th Circuit Court could issue a decision. The U.S. Supreme Court held that the case was moot and rejected the argument that the case was capable of repetition, yet evading review. The Court stated that it has “consistently refused to ‘conclude that the case-or-controversy requirement is satisfied by’ the possibility that a party ‘will be prosecuted for violating valid criminal laws.’” See Decision.
Jun 13, 2018 8:02 PM
Antioxidant Case Dismissed
“In a recent Order, the Ninth Circuit has upheld the lower court's dismissal of a proposed class action against Twinings, the tea company. The complaint had alleged that Twinings made misleading claims about the antioxidant content of its tea. However, because the plaintiff did not allege that she would repurchase the product, the Court granted summary judgment to the defendant on plaintiff's claim for injunctive relief, finding that plaintiff "failed to show that her future harm is 'actual or imminent,' or that there is a 'sufficient likelihood' that she will 'again be wronged in a similar way.'" Plaintiff's allegation that she "would consider" buying the product again was insufficient to establish the requisite standing.” See Article.
Jun 13, 2018 8:00 PM
Los Angeles Business Journal
Jun 12, 2018 11:32 PM
William and Mary Law Review
Jun 12, 2018 11:32 PM
San Diego Business Journal
Jun 12, 2018 11:32 PM
Jun 12, 2018 11:17 PM
FERC and DOJ Side with Illinois on ZECs
“The US Department of Justice (DOJ) and the Federal Energy Regulatory Commission (FERC) filed a joint brief on May 29 in the US Court of Appeals for the Seventh Circuit, stating that Illinois' zero emission credit (ZEC) program for eligible nuclear plants in Illinois is not preempted by the Federal Power Act (FPA).” See Article.
Jun 12, 2018 10:03 PM
OH Supreme Court: social worker's duty to cooperate with law enforcement does not render the social worker an agent of law enforcement for purposes of 5th and 6th Amendments
The Supreme Court of Ohio held that “a social worker's statutory duty to cooperate and share information with law enforcement with respect to a child abuse investigation does not render the social worker an agent of law enforcement for purposes of the Fifth and Sixth Amendments to the United States Constitution when the social worker interviews an alleged perpetrator unless other evidence demonstrates that the social worker acted at the direction or under the control of law enforcement.” See Decision.
Jun 12, 2018 10:03 PM