vLex United States
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
Tennessee Supreme Court interprets intent of legislature for phrase "not engaged in unlawful activity" in Tennessee Code Annotated section 39-11-611
The Supreme Court of Tennessee has held that under Tennessee Code Annotated section 39-11-611 “the legislature intended the phrase "not engaged in unlawful activity" in the self-defense statute to be a condition of the statutory privilege not to retreat when confronted with unlawful force and that the trial court should make the threshold determination of whether the defendant was engaged in unlawful activity when he used force in an alleged self-defense situation.” See Decision.
Jan 17, 2018 7:52 PM
Pleading Patent Infringement: Res Ipsa Loquitur as a Guide
Author Andrew Milam discusses issues relating to pleading requirements in modern patent infringement litigation, exploring proposed and enacted solutions. He “advocates for a solution to the pleading requirements and infringement contentions in patent cases by using, among other things, the tort doctrine of res ipsa loquitur as a guide to interpreting infringement pleadings.” See Article.
Jan 17, 2018 7:49 PM
4th Circuit remands case, finding violations of 4th Amendment
The 4th Circuit Court has remanded a Section 1983 claim which alleges a violation of the 4th Amendment. The Court found that “a reasonable police officer would have known that attempting to obtain a photograph of a minor child's erect penis, by ordering the child to masturbate in the presence of others, would unlawfully invade the child's right of privacy under the Fourth Amendment.” See Decision.
Jan 17, 2018 7:48 PM
Supreme Court of Virginia Reaffirms Source of Duty Rule Barring Tort Suits from Breaches of Contractual Duties
“On December 14, the Supreme Court of Virginia reaffirmed in MCR Federal, LLC v. JB&A, Inc. that tort claims for actual and constructive fraud cannot stand where the source of the duty breached arises from the parties' contractual relationship. The Court's holding is consistent with established precedent and is beneficial to the mortgage servicing industry in Virginia where relationships with borrowers arise from loan contracts such as a promissory note and a deed of trust.” See Article.
Jan 17, 2018 7:47 PM
Two Federal Preemption Cases, One Consistent Outcome
“Two recent decisions from the Fourth and Fifth Circuits with similar outcomes have contributed further guidance and consistency on the issue of federal preemption with respect to state law claims pertaining to conversion and computer fraud, as well as unfair competition. Both circuits explained that federal preemption, as it applies to federal intellectual property laws, is intended to maintain balance by preventing states from offering intellectual property protections that the federal Copyright or Patent Acts do not provide. Citing § 301 of the Copyright Act, both courts examined the facts of their respective cases under the Act's two-pronged inquiry to determine when a state law claim is preempted. First, the work at issue must be within the scope of the subject matter of copyright. If it is, then a state-law claim is preempted if the rights granted thereunder are equivalent to those protected by federal copyright.” See Article.
Jan 17, 2018 7:36 PM
Hawaii Supreme Court: 2 day rule for preliminary hearing is presumptive limit
The Hawaii Supreme Court has denied a petition seeking a writ of mandamus ordering the petitioner’s release from custody. The petitioner alleges that he should be released because his preliminary hearing has not commenced within two days of his initial appearance. The Court denied the petition as moot, however, discussed the issues anyways as they are capable of repetition without review. The Court reasoned that “two days is the presumptive limit of acceptable delay, and holding a defendant without a preliminary hearing for a longer period is authorized under HRPP Rule 5(c)(3)'s second exception only when compelling circumstances prevent a timely determination of probable cause or commencement of the hearing.” See Decision.
Jan 17, 2018 7:35 PM
Rethinking Preemption and Constitutional Parameters in Bankruptcy
Author Michelle Harner “suggests rethinking the scope of the Bankruptcy Clause and enforcing appropriate parameters for federal preemption in the bankruptcy context. State law does and should provide remedies for creditors against a defaulting party. Those remedies should include the traditional tools of foreclosing against the collateral securing the debt, obtaining a judgment lien to facilitate a foreclosure, or seeking the assistance of a receiver or assignee to collect and liquidate the debtor's assets for the payment of debts. The latter remedy should not, however, include the power to reorganize the debtor's business through a going-concern sale.” See Article.
Jan 17, 2018 7:34 PM
Justice Department Files Notice to Appeal and Intends to Petition for Immediate Supreme Court Review in DACA Lawsuit
“The Department of Justice [yesterday] filed a notice of appeal in The Regents of the University of California and Janet Napolitano v. U.S. Department of Homeland Security and Elaine Duke seeking review before the U.S. Court of Appeals for the Ninth Circuit. The Department also intends later this week to take the rare step of filing a petition for a writ of certiorari before judgment, seeking direct review in the Supreme Court.” See Press Release.
Jan 17, 2018 7:33 PM