vLex United States
9th Circuit Court: 8 U.S.C. §§ 1324(a)(1)(A)(iv) is unconstitutionally overbroad in violation of the First Amendment
On December 4, the 9th Circuit Court held that 8 U.S.C. §§ 1324(a)(1)(A)(iv) - “which permits a felony prosecution of any person who "encourages or induces" an alien to come to, enter, or reside in the United States if the encourager knew, or recklessly disregarded the fact that such coming to, entry, or residence is or will be in violation of law - is unconstitutionally overbroad in violation of the First Amendment because it criminalizes a substantial amount of protected expression in relation to its narrow band of legitimately prohibited conduct and unprotected expression.” See Decision.
Dec 13, 2018 9:52 PM
Federal Circuit Clarifies Standard for Public Accessibility of Printed Publications
“The Federal Circuit has affirmed the final written decisions of a Patent Trial and Appeal Board (the "Board") panel in six related inter partes review (IPR) proceedings. The Board held in those proceedings that (1) a reference is not publicly accessible if it is not meaningfully indexed such that an interested artisan can locate it, and (2) lack of a transition word between the preamble and the body of a claim does not cause the preamble to limit the scope of a claim.” See Article.
Dec 12, 2018 11:37 PM
DOL Extends PAID Program, Presenting Employers with ‘Third Option’ to Release FLSA Claims
“In an effort to create a win-win solution for both employers and employees, the Department of Labor has extended its pilot compliance program, called the Payroll Audit Independent Determination (PAID). The purpose of this program is to help employees get paid for wages they have earned and to help employers correct past payroll mistakes.” See Article.
Dec 12, 2018 11:31 PM
Dec 11, 2018 5:48 PM
San Fernando Valley Business Journal
Dec 11, 2018 5:48 PM
Dec 11, 2018 5:47 PM
Alabama Bar Lawyer
Dec 10, 2018 3:17 PM
President Trump announces nomination for Attorney General
President Trump announced, today, that he will be nominating William Barr to the position of Attorney General. See Tweet.
Dec 7, 2018 7:13 PM
The Intercircuit Exclusionary Rule
Author, James Durling, discusses the existing choice-of-law approach to resolving intercircuit suppression disputes and argues that the choice-of-law approach conflicts with existing doctrine and choice-of-law theory. Durling also argues that “the current good-faith exception to the exclusionary rule most likely requires courts to account for another circuit's precedent in determining whether an officer reasonably relied upon a binding interpretation of the law.” See Article.
Dec 6, 2018 9:37 PM
Third Circuit Remands W.R. Grace Decision Concerning Plan Channeling Injunction and Insurance Providers, Providing Additional Insights for Third Parties and Claimants
“In a recent Third Circuit decision arising out of the W.R. Grace bankruptcy proceedings, In re W.R. Grace & Co., the Third Circuit has provided additional guidance regarding statutory requirements that must be met in order to properly direct claims pursuant to a channeling injunction in accordance with Section 524(g), specifically with respect to insurance companies that have provided insurance to a debtor. The Court, in vacating the Bankruptcy Court's decision that certain asbestos claims brought against W.R. Grace's insurers may be enjoined, held that the Bankruptcy Court must consider applicable state law principles in connection with a determination as to whether claims fall within the permissible scope of an injunction under Section 524(g)(4).” See Article.
Dec 6, 2018 9:36 PM
Department of Commerce to Establish New Export Controls on Emerging Technologies
“On Monday November 19, 2018, BIS published an invitation to comment on the criteria for establishing new export controls on what it calls "emerging and foundational technologies." The new controls are authorized under the Export Control Reform Act of 2018 and the Foreign Investment Risk Review Modernization Act of 2018 (known as FIRRMA).” See Article.
Dec 6, 2018 9:34 PM
IL Appellate Court Rules: New Landlord May Not Be Entitled to Unpaid Rent
“The Illinois Appellate Court ruled in favor of a commercial tenant after the new landlord attempted to collect accrued unpaid rent owed to the previous landlord, who had assigned the lease to the new landlord. In affirming the lower court's ruling, the court held that the new landlord did not have standing to sue for unpaid rent which accrued prior to the conveyance to the new landlord. Additionally, the court noted that, unlike debt obligations, rent accrual is a chose in action that is not assignable. The decision raises questions about the strength of assignment and non-waiver lease provisions as well as succeeding landlords' rights.” See Article.
Dec 5, 2018 9:31 PM
U.S. Supreme Court hears arguments in Helsinn Healthcare S.A. v. Teva Pharmaceuticals USA Inc.
On December 4, the U.S. Supreme Court heard arguments in the case of Helsinn Healthcare S.A. v. Teva Pharmaceuticals USA Inc. This case presents the issue of “whether, under the Leahy-Smith America Invents Act, an inventor’s sale of an invention to a third party that is obligated to keep the invention confidential qualifies as prior art for purposes of determining the patentability of the invention.” See Update.
Dec 5, 2018 9:28 PM
SEC Settles Two ICO Enforcement Actions
“The U.S. Securities and Exchange Commission (SEC) recently settled two initial coin offering (ICO) enforcement actions grounded on the sale of unregistered securities. The two settlements, one with CarrierEQ Inc. (or AirFox) and the other with Paragon Coin Inc., are the first time the SEC has imposed civil penalties on companies solely for offering digital tokens in an ICO.” See Article.
Dec 5, 2018 9:25 PM
A resource has been added Michigan Law Review
Dec 5, 2018 2:16 AM
NY Court of Appeals: non-citizen who shows potential deportation from charged crime is entitled to jury trial
On November 27, the New York Court of Appeals held that “a noncitizen defendant who demonstrates that a charged crime carries the potential penalty of deportation i.e. removal from the country is entitled to a jury trial under the Sixth Amendment.” See Decision.
Dec 4, 2018 8:23 PM
FDA’s Refreshed Approach to Device Safety Would Require Major Changes to 501(k) Program
“On November 26, 2018, FDA Commissioner Scott Gottlieb and device center director Jeff Shuren issued a statement outlining a plan to modernize the 510(k) pre-market review program to bolster medical device safety. The 510(k) program relies on a device being compared to a legally marketed predicate device; i.e., a similar device that was already determined to be legally marketable. Most devices come to market through the 510(k) pathway.” See Article.
Dec 4, 2018 8:22 PM
MA Supreme Court affirmed the suppression of evidence where police "froze" a house while obtaining a warrant
On November 7, the Massachusetts Supreme Court affirmed a motion for suppression where police officers "froze" a house while they obtained a warrant. The Court held that the evidence presented at the suppression hearing did not establish that the officers had ‘specific information supporting an objectively reasonable belief that evidence will indeed be removed or destroyed unless preventative measures are taken.’” See Decision.
Dec 4, 2018 8:13 PM
Lack of Statutory Private Right of Action is No Bar to Privacy Suit
“HIPAA and several other privacy laws do not include a private right of action. This is cold comfort for healthcare providers, health plans and other members of the healthcare industry if a patient is able to demonstrate that the statutory violation caused actual harm. In an opinion filed on Nov. 9, 2018, Florida's Fifth District Court of Appeal held that a patient could bring a claim for breach of fiduciary duty and negligence relating to a physician's disclosure of medical records.” See Article.
Dec 4, 2018 8:11 PM
Yale Law Journal
Dec 4, 2018 5:48 AM
Journal of Environmental Health
Dec 4, 2018 5:48 AM
FDIC Requests Comments on Incentivizing Banks to Offer Small-Dollar Credit Products
“The FDIC requested feedback from the public on ways in which it could incentivize FDIC-supervised institutions to offer small-dollar credit products that are (i) "responsible, prudently underwritten" and (ii) economically viable for the credit needs of bank customers. The FDIC stated that small-dollar credit products can allow banks to address consumers' credit needs, such as cash flow imbalances, unexpected expenses and income volatility. Based on research by the FDIC, four in ten U.S. adults in 2017 would have to borrow or sell something in order to pay a hypothetical $400 expense. Credit products can help to alleviate these concerns.” See Article.
Dec 3, 2018 8:30 PM
Wisconsin Supreme Court rules on validity of search GPS tracking search warrant
On November 16, the Wisconsin Supreme Court held that “a search warrant issued for the placement and use of a GPS tracking device on a motor vehicle, but not executed within five days after the date of issuance per Wis.Stat. § 968.15 or timely returned under Wis.Stat. § 968.17(1), is not void if the search was otherwise reasonably conducted, because it is not a warrant issued "for the purpose of seizing designated property or kinds of property" under Wis.Stat. § 968.12(1).” See Decision.
Dec 3, 2018 8:29 PM
MI Senate votes to advance bill prohibiting the prescription of medical abortion via telemedicine
On November 29, the Michigan Senate voted in favor of SB No. 1198. The bill, as approved by the Senate, provides that physicians cannot diagnose pregnancy nor prescribe a medical abortion without performing a physical examination. This means that physicians cannot prescribe a medical abortion via internet webcam. See Bill.
Dec 3, 2018 8:27 PM
7th Circuit Holds that Borrower Failed to Show Harm Caused By Servicers QWR Response
“The U.S. Court of Appeals for the Seventh Circuit recently held that a borrower failed to establish an actual harm resulting from his mortgage servicer's response to a Qualified Written Request ("QWR"), thus affirming the lower court's grant of summary judgment in favor of the servicer.” See Article.
Dec 3, 2018 8:26 PM
New Jersey Courts Continue to Raise the Bar for Enforceable Arbitration Agreements
“The New Jersey Appellate Division recently issued a decision adding yet another hurdle for employers in the Garden State to overcome in drafting and enforcing arbitration agreements. In Flanzman v. Jenny Craig, Inc., the court found that because an arbitration agreement did not establish the forum for the arbitration, the agreement lacked sufficient details to establish the "meeting of the minds" component crucial to rendering it enforceable.” See Article.
Dec 3, 2018 8:23 PM
U.S. Senate advances Resolution 54
On November 28, the U.S. Senate voted to bring Resolution 54 to the Senate floor. This resolution would “direct the removal of United States Armed Forces from hostilities in the Republic of Yemen that have not been authorized by Congress.” See Resolution.
Nov 30, 2018 6:53 PM
SC Supreme Court overrules Linda Mc
On November 21, the South Carolina Supreme Court considered the issue of whether a creditor may execute on a judgment more than ten years after its enrollment when the time period has expired during the course of litigation. The Court revisited their decision in Linda Mc, which the court of appeals broadly interpreted as extending a judgment's life beyond the statutory ten-year limit merely by filing the action within ten years. The Court reversed the court of appeals decision and overruled Linda Mc. See Decision.
Nov 30, 2018 6:52 PM
U.S. Department of Justice Settles Anti-Steering Suit Against Hospital
“On November 15, 2018, the Antitrust Division of the U.S. Department of Justice settled a two-and-a-half year long lawsuit against Atrium Health, a North Carolina hospital system formerly known as the Carolinas HealthCare System, enjoining Atrium's anti-steering provisions against health plans.” See Article.
Nov 30, 2018 6:47 PM
Government Finance Review
Nov 30, 2018 11:03 AM