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Mr. Markels is an associate in the Firm’s General Litigation and Trial, Professional Responsibility, and Real Estate Practice Groups, where he handles a wide variety of civil lawsuits and appeals. Previously, James was a litigator in McLean, Virginia, where he represented businesses before state and federal courts in matters involving contracts, trade secrets, employment law, landlord-tenant law, and bankruptcy. He also has experience in litigating insurance coverage and tort matters.

James was selected as a Super Lawyer® for Appellate, Civil Litigation, and Real Property Law by Super Lawyers magazine, published by Thomson Reuters, in 2015, 2016, 2017, 2018, 2019, and 2020 was a Super Lawyer®: Rising Star in 2014. James also has an AV Preeminent™ rating from Martindale-Hubbell®.

James is an active member of the Fairfax Bar Association (FBA) and a Fairfax, Virginia native. He has organized and moderated dozens of continuing legal education (CLE) courses, served as Chairman for the FBA’s CLE Committee, and received the FBA’s 2013 President’s Award for outstanding service to the bar. Pursuant to his love of appellate practice, he publishes same-day summaries of noteworthy opinions issued by the U.S. Supreme Court, the U.S. Courts of Appeals for the District of Columbia and Fourth Circuits, and the Virginia Supreme Court for the public, which are available on the Jackson & Campbell blog.

James joined Jackson & Campbell, P.C. in 2010. He received his J.D., cum laude, from George Mason University School of Law, where he was an associate editor of the Civil Rights Law Journal and a member of the Moot Court Board. He also served as the school’s Honor Committee Chairman for two years. James received a Bachelor of Science in telecommunications from Ohio University.

  • April 2021
    SCOTUS Opinion: Court Lifts Restrictions On In-Home Religious Gatherings
    As part of its effort to combat COVID-19, California enacted a policy limiting in-home religious gatherings to no more than three households. Several California pastors filed suit and asked that the courts enter an injunction preventing the application of the policy as a violation of their First Amendment religious rights. The district court and the Ninth Circuit rejected the application, ... Read More
  • April 2021
    SCOTUS Opinion: Google Allowed Fair Use Of Oracle’s Java Code
    After Google acquired Android, it copied about 11,500 lines of Oracle’s Java SE code without Oracle’s permission so that programmers could use it to develop apps for Android phones. Oracle filed suit arguing that Google violated its copyrights over that code. The Federal Circuit held that the copied lines were copyrightable under the Copyright Act, and reversed a jury’s determination ... Read More
  • April 2021
    SCOTUS Opinion: Facebook’s Security Feature Not A Prohibited Autodialer
    The Telephone Consumer Protection Act of 1991 prohibits telemarketers from using autodialers, which “store or produce telephone numbers to be called, using a random or sequential number generator,” and then dial those numbers. Meanwhile, Facebook has a security feature that automatically texts a phone number associated with an account if that account is accessed from a new device or browser ... Read More
  • April 2021
    SCOTUS Opinion: Court Re-Institutes Federal Communications Commission’s Repeal Of Media Ownership Rules
    The Telecommunications Act of 1996 requires the FCC to review its rules restricting entities from owning multiple media outlets every four years to ensure that competition, localism, and viewpoint diversity were promoted. In 2017, the FCC determined that three of its rules were no longer necessary to promote those values, and that repealing the rules would likely not harm minority ... Read More
  • April 2021
    SCOTUS Opinion: Georgia Prevails In Dispute Over Water Rights
    The interstate rivers that make up the Apalachicola-Chattahoochee-Flint River Basin flow from Georgia into Florida. Florida claimed that its upstream neighbor was consuming too much of the Basin waters, resulting in downstream harm to Florida’s oyster fisheries and wildlife. The Special Master appointed to the case originally recommended dismissal of Florida’s claim for lack of redressability, but the Court requested ... Read More
  • March 2021
    SCOTUS Opinion: Court Rejects Ineffective Assistance Of Counsel Claim
    Despite a mountain of circumstantial evidence demonstrating that Anthony Hines killed motel worker Katherine Jenkins and stole her car and money, leading to his murder conviction in state court, the Sixth Circuit held that Hines received ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984) because Hines’ counsel failed to develop the argument that the murder might ... Read More
  • March 2021
    SCOTUS Opinion: A Police Shooting Can Constitute An Unreasonable Seizure Under The Fourth Amendment
    Two officers approached Roxanne Torres while she stood near her car. They intended to question her, but she thought they were carjackers and sped away. The officers shot at Torres 13 times, wounding her twice. She crashed her car, then stole another car, and drove to a hospital 75 miles away. She was arrested the next day. Torres sued the ... Read More
  • March 2021
    SCOTUS Opinion: Court Refuses To Narrow Personal Jurisdiction Over Claims Against Global Companies
      The case of Ford Motor Co. v. Montana Eighth Judicial District Court involved two separate accidents, both resulting from alleged defects in Ford cars. Each case was brought in the state where the accident occurred. Ford argued that those state courts could not have personal jurisdiction over Ford because the cars in question were not shown to have been designed, ... Read More
  • March 2021
    SCOTUS Opinion: Claim For Nominal Damages Saves Civil Rights Case From Mootness
    In Uzuegbunam v. Preczewski, two evangelical Christian students sued their college when campus police officers shut down their attempts to evangelize in designated “free speech expression areas,” requesting injunctive relief and nominal damages for the violation to their First Amendment rights. The college decided to get rid of the challenged policies, and then moved to dismiss the case for being ... Read More
  • March 2021
    SCOTUS Opinion: Court Upholds Deliberative Process Privilege Against FOIA Claim
    The Environmental Protection Agency consulted with two other government services to determine whether particular cooling water intake structures jeopardized aquatic wildlife. The services issued draft opinions that a particular rule would jeopardize certain species, which were never approved in final form. The EPA modified the rule, and the services issued a “no jeopardy” opinion. The Sierra Club sued under the ... Read More
  • March 2021
    SCOTUS Opinion: Immigrants Bear Burden Of Proving Eligibility For Discretionary Relief From Removal
    The Immigration and Nationality Act allows immigrants facing an order of removal to petition for discretionary relief from that removal. To be eligible for that relief, an immigrant must show that they have not been convicted of a “crime of moral turpitude.” In Pereida v. Wilkinson, an immigrant facing such a removal order was convicted under Nebraska law for “attempted ... Read More
  • February 2021
    SCOTUS Opinion: Dismissal of Claims Under Federal Tort Claims Act Bars Bivens Claims
    In Brownback v. King, a student at the University of Michigan was mistaken for a fugitive and tackled and punched by two federal officers. The student sued, alleging tort claims against the federal government under the Federal Tort Claims Act, and separately sued the individual officers under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388  (1971). The district ... Read More
  • February 2021
    SCOTUS Opinion: Court Deals Trump Two More Defeats
    Today the U.S. Supreme Court declined to hear two appeals by former President Donald Trump, one of which may be setting up further legal troubles for him. In Trump v. Vance, the Court, without any dissent, declined to hear Trump’s last-gasp attempt to stop the Manhattan district attorney’s subpoena seeking Trump’s tax records as part of an investigation into Trump’s ... Read More
  • February 2021
    SCOTUS Opinion: Court Enjoins California's Ban On Indoor Church Services
    Due to the ongoing coronavirus pandemic, California’s governor issued several restrictions on indoor church services: (1) a 25% capacity limitation; (2) a prohibition on singing and chanting; and (3) a total prohibition on all indoor worship services. Several churches filed suit, and sought an order to preliminarily enjoin the restrictions because they violated the First Amendment. A fractured Court, by a ... Read More
  • February 2021
    SCOTUS Opinion: Judicial Review Available For Claims Under Railroad Retirement Act
      In Salinas v. United States Railroad Retirement Board, a Union Pacific Railroad employee applied for disability benefits under the Railroad Retirement Act of 1974. His first three applications were denied, but he was awarded benefits on the fourth. He then moved to reopen his third application, but the Board denied the request. The employee sought judicial review, but the Fifth ... Read More
  • February 2021
    SCOTUS Opinion: Court Thwarts Efforts To Reclaim German Artifacts
      During the Weimar Republic, a consortium of German Jewish art dealers purchased a collection of medieval relics known as the Welfenschatz for preservation. When the Nazis took over Germany, they forced the consortium to sell the relics to the government for a third of their value. Heirs of the consortium failed to recover the artifacts in Germany, so they filed ... Read More
  • January 2021
    SCOTUS Opinion: Passive Retention of a Debtor’s Property Does Not Violate Bankruptcy Automatic Stay
    After Chicago impounded their vehicles for unpaid fines, the owners filed petitions for bankruptcy. The Bankruptcy Code automatically creates an estate comprising of all of the debtor’s property interests, requires those in possession of such property to deliver it to the trustee, and creates a stay prohibiting “any act to obtain possession of the property of the estate or of ... Read More
  • December 2020
    SCOTUS Opinion: Court Defers Action On Census Case
    In July, President Trump ordered that the 2020 census tabulate unlawful immigrants separately from other residents so that he would have the discretion to exclude unlawful immigrants from being counted for the basis of determining the apportionment of House seats for each state. Several states challenged that order, and a three-judge district court panel enjoined operation of the order due ... Read More
  • December 2020
    SCOTUS Opinion: Religious School Denied Relief From Governor’s Closure Order
    On November 18, the Governor of Kentucky issued an order closing all K-12 schools through the start of the holiday break, December 18, with schools reopening on January 4, due to the ongoing pandemic. In Danville Christian Academy, Inc. v. Beshear, a religious school sued and sought a preliminary injunction against that order as applied to religious schools. The district ... Read More
  • December 2020
    SCOTUS Opinion: New Mexico Receives Credit For Evaporated Water Under River Contract With Texas
    In 1949, Texas and New Mexico entered into the Pecos River Compact under which the states would share in the water flowing through the Pecos River – essentially, New Mexico agreed to “deliver” a certain amount of water to Texas by that river. In 2014, a tropical storm hit the area, and to avoid flooding Texas asked New Mexico to ... Read More
  • December 2020
    SCOTUS Opinion: Court Reinforces High Standard For Ineffective Assistance Of Counsel
    The case of Shinn v. Keyer featured another death row inmate seeking to overturn his conviction through a federal habeas challenge under the Antiterrorism and Effective Death Penalty Act of 1996. Keyer alleged that his counsel was ineffective because he failed to present enough evidence of mitigation at sentencing, although Keyer himself had obstructed efforts of his counsel to develop ... Read More
  • December 2020
    SCOTUS Opinion: Court Unanimously Rejects Texas’ Last Gasp Attempt To Undo Election
    After various efforts by the Trump campaign to reverse the election results in Georgia, Michigan, Pennsylvania, and Wisconsin through state court lawsuits had failed, Texas filed a motion seeking leave to file its own lawsuit in the U.S. Supreme Court alleging that the same deficiencies alleged by the Trump campaign in the failed suits caused Texas to suffer injury in ... Read More
  • December 2020
    SCOTUS Opinion: Court Upholds Arkansas Pharmacy Law Against ERISA Challenge
    In 2015, Arkansas passed a law requiring pharmacy benefit managers, as intermediaries between pharmacies and prescription-drug plans, to reimburse pharmacies for drugs at a price equal to or higher than the pharmacy’s wholesale price, allowed pharmacies an administrative appeal procedure on those prices, and other items meant to keep drug prices low. Some of the managers sued, arguing that the ... Read More
  • December 2020
    SCOTUS Opinion: Court Preserves Rape Convictions Against Military Servicemembers
    Originally, the Uniform Code of Military Justice mandated that a rape conviction could be punishable by death. Under that Code, penalties punishable by death could be brought at any time, while all other offenses had to be brought within five years. In United States v. Briggs, three servicemembers were convicted of rape, but after their convictions the Court ruled in ... Read More
  • December 2020
    SCOTUS Opinion: Political Independent Lacks Standing To Challenge Delaware Political Balance Law
      Delaware’s Constitution requires that no more than a bare majority of judges in any of its courts be from the same political party (the “bare majority requirement”). It also states that the remaining members of three of those courts must be from “the other major political party” (the “major party requirement”). In Carney v. Adams, a registered political independent sued, ... Read More
  • December 2020
    SCOTUS Opinion: Religious Freedom Act Permits Claimants To Seek Monetary Damages Against Federal Agents Personally
      The Religious Freedom Restoration Act of 1993 permits people to seek “appropriate relief” when their religious exercise has been unlawfully burdened by the federal government. In Tanzin v. Tanvir, three practicing Muslims sued certain FBI agents who placed them on the No Fly List after they refused to act as informants against their religious communities, seeking monetary damages under the ... Read More
  • December 2020
    SCOTUS Opinion: Court Enjoins New York Restrictions on Religious Gatherings
      In response to the COVID-19 pandemic, New York Governor Andrew Cuomo issued an executive order limiting public gatherings in color-coded zones. In a red zone, religious services were limited to ten people, while in orange zones the gatherings could total 25 attendees. In Roman Catholic Diocese of Brooklyn, New York v. Cuomo, certain religious institutions challenged that order as violating ... Read More
  • November 2020
    SCOTUS Opinion: Scope Of Duty By BLM Protest Organizer To Be Determined By State Courts
    During a Black Lives Matter demonstration in Louisiana protesting a recent police shooting, one of the officers was struck in the face by a chunk of rock causing serious injuries. No one could identify who threw the rock, so in Mckesson v. Doe, the officer sued the organizer of the protest on the theory that the demonstration was negligently staged ... Read More
  • November 2020
    SCOTUS Opinion: Court Begins Scaling Back Qualified Immunity
    In Taylor v. Riojas, an inmate sued the correctional officers who confined him in a pair of “shockingly unsanitary cells,” one of which the inmate was forced to sleep in without a bunk or clothing in frigid conditions. The Fifth Circuit had held that the conditions violated the Eighth Amendment’s prohibition on cruel and unusual punishment, but since the law ... Read More
  • October 2020
    Update from our Health Law Practice Group:
    In a medical malpractice case, a Plaintiff alleged that while she was being treated in the Emergency Room, a catheter tip broke off and became lodged in her arm. Crystal S. Deese of Jackson & Campbell represented a surgeon who advised against removing the broken tip. At trial, Plaintiff offered an emergency room physician to testify on the standard ... Read More
  • October 2020
    Admissibility of Expert Witness Testimony in Maryland, District of Columbia, and Virginia
    In light of the Maryland Court of Appeals recent decision in Rochkind v. Stevenson, this article assesses the current state of law with regard to the admissibility of expert testimony in the District of Columbia, Maryland and Virginia. See 2020 WL 5085877 (Md. Aug. 28, 2020), reconsideration denied (Sept. 25, 2020). Effective immediately, Rochkind affirmatively adopted the nonexclusive list of Daubert reliability factors ... Read More
  • August 2020
    Virginia Supreme Court Suspends All Evictions For Rent Nonpayment Until September 7, 2020
    A narrowly divided Court, in an order signed by Justice Mims, suspended all writs of eviction pursuant to unlawful detainer actions in Virginia, effective August 10, 2020, and continuing through September 7, 2020. The four-justice majority noted that the ongoing public health emergency limited the ability of tenants to avail themselves of the court system, and the Governor’s request for ... Read More
  • July 2020
    SCOTUS Opinion: Narrow Majority Finds Indian Reservation Over Much of Oklahoma
    In McGirt v. Oklahoma, a member of the Seminole Nation was prosecuted in Oklahoma state court of serious sexual offenses and sentenced to 1,000 years plus life in prison. He argued that the state court lacked jurisdiction because under the Major Crimes Act, only federal courts had jurisdiction over crimes committed by an Indian on “Indian country,” and he argued ... Read More
  • July 2020
    SCOTUS Opinion: Court Sets Forth Standard For Congress To Subpoena President Trump’s Financial Records
    Three different House committees issued subpoenas to President Trump’s accountant and two banks seeking information about his finances and his businesses. Trump fought the subpoenas, arguing that the subpoenas violated the separation of powers and were not linked to a valid legislative purpose, but he did not claim executive privilege. The DC and Second Circuits both declined to stop the ... Read More
  • July 2020
    SCOTUS Opinion: Court Expands the Breadth of the “Ministerial Exception” to the First Amendment
    In prior cases, the Court had held that the First Amendment’s Religious Clauses prevented the courts from adjudicating employment discrimination claims between a church and certain employees, which was dubbed the “ministerial exception.” In Our Lady of Guadalupe School v. Morrissey-Berru, two elementary school teachers at Roman Catholic churches brought employment discrimination claims against their churches. In both cases, the ... Read More
  • July 2020
    SCOTUS Opinion: Court Upholds Birth Control Exclusion for Religious Organizations Under ACA
    While the Patient Protection and Affordable Care Act required employers to provide coverage for contraceptives, the Government issued rules exempting religious employers from that mandate. After subsequent rulings by the Supreme Court on claims that the rules violated the Religious Freedom Restoration Act and the Free Exercise Clause of the First Amendment, the Government issued new rules expanding the exemption ... Read More
  • July 2020
    SCOTUS Opinion: Court Strikes Down Faithless Electors
    Instead of voting directly for presidential candidates, voters actually vote for electors appointed by each State, who then vote for the presidential candidate preferred by the voters. In 2016, however, three electors in the State of Washington pledged to vote according to what the voters preferred, but then violated that pledge and refused to vote for Hillary Clinton as they ... Read More
  • July 2020
    SCOTUS Opinion: Government Collections Robocalls Violate the First Amendment
    The 1991 Telephone Consumer Protection Act originally barred practically all robocalls to cell phones, but in 2015 Congress carved out an exception to allow robocalls solely for the purpose of collecting a debt owed to the Government. Certain political groups filed suit arguing that that exception violated the First Amendment, and thus the entire robocall ban should be invalidated. The ... Read More
  • June 2020
    SCOTUS Opinion: Generic.com Names Can Be Trademarked
    In U.S. Patent and Trademark Office v. Booking.com B.V., the Office declined to grant a trademark to “Booking.com,” which was a site that provided travel-reservation services, because, in its view, the name was generic, and generic names are not eligible for trademark protection. The district court disagreed, determining that “Booking.com” was not generic even though the term “booking” was. The ... Read More
  • June 2020
    SCOTUS: States Cannot Exclude Religious Schools From Tuition Programs
    Montana created a program that granted tax credits to organizations that awarded scholarships for private school tuition. Because Montana’s Constitution expressly prohibits “appropriation or payment” to sectarian schools—a “no-aid clause”—the State issued a rule prohibiting the scholarships from being used toward religious schools. Three mothers who wanted to use the scholarships to send their children to a Christian private school ... Read More
  • June 2020
    SCOTUS Opinion: Court Declines to Extend First Amendment Protections to Foreign Corporate Affiliates
    The United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act was enacted in 2003 as a foreign aid program focused on global health. Congress dedicated billions of dollars in funding to the Act, but required that organizations could only receive funds if they had a “policy explicitly opposing prostitution and sex trafficking.” In Agency for Int’l Development v. Alliance for ... Read More
  • June 2020
    SCOTUS Opinion: Director of the Consumer Financial Protection Bureau Is Removable At Will
    To ensure that consumer debt products were safe and transparent, Congress created the Consumer Financial Protection Bureau, which had power to investigate and seek relief on behalf of consumers, among other Executive Branch powers. Unlike other independent agencies, the Bureau was led by a single Director, appointed by the President with advice and consent of the Senate for a five-year ... Read More
  • June 2020
    SCOTUS Opinion: Narrow Majority Strikes Down Louisiana Abortion Law
    The Louisiana law at issue in June Medical Services, LLC v. Russo was practically identical to the Texas law the Court struck down in Whole Women’s Health v. Hellerstedt, 579 U.S. ___ (2016), which required abortion providers to hold active admitting privileges at a hospital within 30 miles of where they perform abortions. Since that time, however, one member of ... Read More
  • June 2020
    SCOTUS Opinion: Court Upholds Limit on Habeas Corpus Review of Immigration Claim
    An immigrant subject to expedited removal can argue for asylum based on a “credible fear of persecution” if they are returned to their country of origin, under the Illegal Immigration Reform and Immigrant Responsibility Act. However, the Act states that federal courts may not review a determination that an immigrant seeking asylum lacks such fear, pursuant to a writ of ... Read More
  • June 2020
    SCOTUS Opinion: Disgorgement Is An Equitable Remedy Available To The SEC
    The Securities Exchange Act of 1934 permits the Securities and Exchange Commission to seek civil penalties and “equitable relief” in civil suits against those who violate securities laws. In the prior case of Kokesh v. SEC, 581 U.S. ___ (2017), the Court held that disgorgement was a “penalty” under the applicable statute of limitations for SEC enforcement actions, but declined ... Read More
  • June 2020
    SCOTUS Decision: Court Preserves DACA Program... For Now
    The case of Department of Homeland Security v. Regents of the University of California concerned the Trump administration’s decision to end the Deferred Action for Childhood Arrivals program initiated by the Obama administration. DACA was created in 2012 to allow certain children who enter the United States illegally to apply for a two-year forbearance of removal. Approximately 700,000 people had ... Read More
  • June 2020
    SCOTUS Opinion: Failure to Elicit Abusive Childhood Constituted Ineffective Assistance of Counsel
    In order to prove ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984), a defendant must prove by a preponderance of the evidence that his counsel’s representation fell below an objective standard of reasonableness, and there was a reasonable probability that the result of the proceedings would have been different but for counsel’s deficient performance. In Andrus ... Read More
  • June 2020
    SCOTUS Opinion: New Gas Pipeline Under Appalachian Trail Allowed To Proceed
    In U.S. Forest Service v. Cowpasture River Preservation Association, the issue was whether the U.S. Forest Service had the authority to grant a right-of-way easement about 600 feet underneath a portion of the Appalachian Trail for the construction of a new natural gas pipeline. The Leasing Act gave the Forest Service authority to grant easements over lands that it administrated, ... Read More
  • June 2020
    SCOTUS Opinion: Gay and Transgender Employees Are Protected Under Title VII of the Civil Rights Act
    Bostock v. Clayton County consisted of several cases in which a long-time employee was terminated solely for being gay or transgender. Those employees sued under Title VII of the Civil Rights Act of 1964, which makes it unlawful to fire an employee “because of such individual’s race, color, religion, sex, or national origin,” arguing that employment discrimination on account of ... Read More
  • June 2020
    SCOTUS Opinion: Court Strengthens Prison Litigation Reform Act’s “Three-Strikes Rule”
    The Prison Litigation Reform Act of 1995 prevents a prisoner from bringing suit in forma pauperis (“IFP”) after having three or more prior suits dismissed for being frivolous, malicious, or failing to state a claim while he or she was imprisoned—called the “three-strikes rule.” Inmate Arthur Lomax sought IFP status in a fourth suit he brought as an inmate, which ... Read More
  • June 2020
    SCOTUS Opinion: Court Declines to Preclude Nonsignatories from Being Able to Enforce Arbitration Provision
    At the heart of GE Energy Power Conversion France SAS, Corp. v. Outokumpu Stainless USA, LLC is a construction contract with an arbitration clause. One of the signatories to that contract engaged a subcontractor to do part of that construction. When the subcontractor’s work allegedly failed, the owner sued the subcontractor. The subcontractor moved to dismiss the case and compel ... Read More
  • June 2020
    SCOTUS Opinion: Court Upholds Puerto Rico’s Financial Oversight and Management Board Against Appointments Clause Challenge
    After Puerto Rico suffered a fiscal crisis starting in 2006, Congress enacted the Puerto Rico Oversight, Management, and Economic Stability Act, creating a Financial Oversight and Management Board that would be able to file bankruptcy on behalf of Puerto Rico or its instrumentalities, among other things, to regain financial stability. The members of the Board were to be appointed by ... Read More
  • June 2020
    SCOTUS Opinion: Motion to Amend Judgment in Habeas Proceeding is Not a Separate Habeas Petition
    After Gregory Banister was sentenced to 30 years in prison in Texas state court, and after he had exhausted his appeals in the Texas courts, he filed a petition for habeas relief under the Antiterrorism and Effective Death Penalty Act of 1996, arguing, among other things, ineffective assistance of counsel. The district court denied the petition. Banister then filed a ... Read More
  • June 2020
    SCOTUS Opinion: Beneficiaries Receiving Full Benefits Have No Standing To Challenge ERISA Plan Governance
    U.S. Bank maintains a retirement plan for its employees. Two of those beneficiaries, who had retired, were entitled to a fixed payment each month, and received every such payment. Regardless, they sued their former employer under the Employee Retirement Income Security Act of 1974, arguing that the plan had been mismanaged and should be re-payed about $750 million. The Eighth ... Read More
  • June 2020
    SCOTUS Opinion: Court Enlarges Scope of Judicial Review of Orders Under the Convention Against Torture
    Nidal Khalid Nasrallah received some stolen property, which made him eligible to be removed under federal immigration law. Nasrallah argued to the immigration court that he should not be removed to his home country of Lebanon under the Convention Against Torture because it was likely that, as a member of the Druze religion, he would be tortured upon his return ... Read More
  • June 2020
    SCOTUS Opinion: Court Declines to Suspend COVID-19 Restrictions on Church Worship in California
    The Governor of California issued an executive order to limit the spread of COVID-19, which in part limited attendance at places of worship to 25% of building capacity or 100 people, whichever is less. Several churches challenged that order, and asked the courts to enter an injunction staying its effect during the course of the litigation due to its First ... Read More
  • May 2020
    SCOTUS Opinion: Republic of Sudan Exposed to $4.3 Billion In Punitive Damages
    Victims of an al Qaeda terrorist attack sued the Republic of Sudan under the Foreign Sovereign Immunities Act, which carved a specific exception under 28 U.S.C. sec. 1605(a)(7) for states that sponsored terrorism. When the victims filed suit, Section 1605(a)(7) did not permit recovery of punitive damages. Then In 2008, Congress amended FSIA through the National Defense Authorization Act, which ... Read More
  • May 2020
    SCOTUS Opinion: Court Refines Defense Preclusion Doctrine In Trademark Suit
    Lucky Brand Dungarees, Inc. sells clothing using trademarks involving the word “Lucky.” Marcel Fashions Group, Inc. received a federal trademark for “Get Lucky,” and used that to sell their own clothing line. Inevitably, decades of litigation ensued between the two groups as they each defended their respective “Lucky” turf. In the first round of litigation, the parties signed a settlement ... Read More
  • May 2020
    SCOTUS Opinion: Court Curtails Ninth Circuit’s Digression from Issues Presented By the Parties
    Evelyn Sineneng-Smith was convicted of violating 8 U.S.C. sec. 1324(a)(1)(A)(iv) for “encouraging or inducing an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such . . . is or will be in violation of the law,” and of sec. 1324(a)(1)(B)(i) for doing so “for the purpose of commercial ... Read More
  • May 2020
    SCOTUS Opinion: Controversial Bridge Lane Closures by Gov. Christie’s Campaign Not Fraud
    When the mayor of Fort Lee, N.J. refused to support Gov. Chris Christie’s 2013 re-election campaign, the campaign decided to punish the mayor by shutting down two of the three lanes on the George Washington Bridge that were reserved for Fort Lee commuters into New York under the guise of a “traffic study.” That resulted in four days of gridlock ... Read More
  • May 2020
    SCOTUS Opinion: Congress Ordered to Pay Unprofitable Insurers Under the Affordable Care Act
    The Patient Protection and Affordable Care Act contained a program under which, each year, profitable insurance plans “shall” pay an amount into the government, and the government “shall” make payments to unprofitable plans, thus limiting risk for those insurers who participated in the online exchanges. The Act did not appropriate any funds for the yearly payments. Over several years, the ... Read More
  • May 2020
    SCOTUS Opinion: Annotations of State Law Are Not Entitled to Copyright Protection
    The Official Code of Georgia Annotated consists of the text of all of Georgia’s laws plus a set of non-binding annotations with summaries of opinions regarding each statute issued by the courts or the state attorney general. The annotations were drafted by a private company under contract with Georgia’s Code Revision Commission, which controlled the product in exacting detail. The ... Read More
  • April 2020
    SCOTUS Opinion: Court’s Dismissal of Gun Rights Case as Moot Sparks Lengthy Dissent
    New York City enacted a law preventing the transport of firearms. Gun owners challenged that law on the basis that it prohibited them from moving firearms to a second home or shooting range outside the city in violation of the Second Amendment. The lower courts denied relief, and the U.S. Supreme Court granted certiorari. In response, the city amended its ... Read More
  • April 2020
    SCOTUS Opinion: Court Narrows Eligibility of Lawful Permanent Immigrants to Avoid Removal
    Andre Barton was a green-card holder who was convicted of several crimes, including a firearms offense and certain drug offenses. The government decided that it wanted to remove Barton based on those convictions. Barton applied for cancellation of removal, which has certain strict requirements including an initial seven years of continuous residence. The residency requirement would be cancelled, however, if ... Read More
  • April 2020
    SCOTUS Opinion: Court Refashions Clean Water Act’s Permit Requirement
    Under the Clean Water Act, a party must obtain a permit before adding any “pollutant,” broadly defined from “any point source” to “navigable waters.” In County of Maui, Hawaii v. Hawaii Wildlife Fund, Maui’s sewage plant was pumping millions of gallons of partially treated sewer water into the ground each day, which eventually wound up in the Pacific Ocean. Environmental ... Read More
  • April 2020
    SCOTUS Opinion: Profits Can Be Awarded In Trademark Infringement Case Without Willfulness
    Section 1117(a) of the U.S. Code requires proof that a trademark infringer acted willfully in order for a court to award lost profits for trademark dilution under Section 1125(c) of the Lanham Act, but does not mention trademark infringement. In Romag Fasteners, Inc. v. Fossil Group, Inc., Romag sued Fossil for trademark infringement under Section 1125(a). The jury did not ... Read More
  • April 2020
    SCOTUS Opinion: Court Upholds EPA’s Superfund Cleanup Plan Against Challenge
    For decades, a copper smelter in Montana contaminated approximately 300 square miles of land with arsenic and lead. The Environmental Protection Agency, working with the current owner of the smelter, instituted a cleanup plan under Superfund. Unhappy with the plan and its progress, nearby landowners filed suit in state court, lodging common law claims for damage to their properties, as ... Read More
  • April 2020
    SCOTUS Opinion: Court Rejects Judicial Review Of USPTO Inter Partes Determinations
    By statute, the U.S. Patent and Trademark Office can be asked to conduct an inter partes review to reconsider the validity of an earlier-granted patent claim. However, 35 U.S.C. sec. 315(b) requires that a request for inter partes review must be brought within one year after suit against the requesting party for patent infringement. The Office’s determination of whether to ... Read More
  • April 2020
    SCOTUS Opinion: Court Abolishes Non-Unanimous Criminal Convictions
    The Supreme Court had previously ruled in Apodaca v. Oregon, 406 U.S. 404 (1972), that the Sixth Amendment did not forbid non-unanimous verdicts in state criminal trials. Today, only Louisiana and Oregon still permit non-unanimous convictions. In Ramos v. Louisiana, a 6-3 majority of the Court, in an opinion by Justice Gorsuch, discarded that precedent and held that the Sixth ... Read More
  • April 2020
    SCOTUS Opinion: Court Stays District Court’s Order Affecting Wisconsin’s Election
    Despite the ongoing danger of COVID-19, Wisconsin decided to go forward with its election on April 7. Since voters would be discouraged from arriving en masse at the polls, it was expected that absentee voting would surge. Various political groups filed suit to ease the burden of absentee voting. Although Wisconsin law required absentee votes to be received by 8 ... Read More
  • April 2020
    SCOTUS Opinion: Court Permits Routine Stops Of Vehicles Whose Owners Have Revoked Licenses
    While on routine patrol, a Kansas deputy ran the plate of a vehicle and discovered that its owner, Charles Glover, Jr., had a revoked driver’s license. On that basis alone, the deputy pulled over the vehicle, assuming, correctly, that Glover was driving it. Glover was charged with driving as a habitual violator and Glover appealed, arguing that the deputy lacked ... Read More
  • March 2020
    SCOTUS Opinion: "Safe-Berth" Clause In Maritime Contract Creates A Warranty of Safety
    In Citgo Asphalt Refining Company v. Frescati Shipping Company, a punctured hull in a tanker caused a huge oil spill, which the owner of the tanker and the United States then paid millions to clean up. Those parties then sued the groups who chartered the tanker to recover those costs under a clause in the maritime contract that required the ... Read More
  • March 2020
    SCOTUS Opinion: Courts May Consider Whether Deadline To Contest A Removal Order Has Been Equitably Tolled
    When the Government has ordered that an immigrant be removed from the country for committing certain crimes, the Immigration and Nationality Act allows judicial review only on “constitutional claims or questions of law.” In Guerrero-Lasprilla v. Barr, two such immigrants sought appellate review of their removal orders based on whether their motions to reopen their removal proceedings were untimely or ... Read More
  • March 2020
    SCOTUS Opinion: Civil Rights Plaintiffs Must Prove But-For Causation
    For years, Entertainment Studios Network, an African-American owned company, sought to have Comcast Corp. carry its channels. Comcast refused and ESN sued, alleging racial discrimination under 42 U.S.C. § 1981. ESN alleged that Comcast’s legitimate business reasons for refusing to carry ESN channels were pretextual. The district court dismissed the complaint, holding that ESN had failed to allege but-for causation ... Read More
  • March 2020
    SCOTUS Opinion: States Need Not Have Insanity Defense Based on Moral Understanding
    Kansas permits defendants to raise an insanity defense based on whether the defendant “lacked the culpable mental state required as an element of the offense charged.” James Kahler, who was charged with capital murder for killing four family members, argued that he should have been able to raise an insanity defense based on whether he had a mental illness that ... Read More
  • March 2020
    SCOTUS Opinion: States Immune from Copyright Claims
    When North Carolina published a photographer’s copyrighted work recording operations to recover a shipwreck off of its coast, the photographer sued under the Copyright Remedy and Classification Act of 1990. The district court held that the Act abrogated State sovereign immunity from such claims, but the Fourth Circuit reversed, holding that the decision in Florida Prepaid Postsecondary Ed. Expense Bd ... Read More
  • March 2020
    SCOTUS Opinion: Appellate Courts Must Review Late-Raised Arguments For Plain Error
    Federal Rule of Criminal Procedure 52(b) provides that where a criminal defendant fails to raise an argument in the district court, the appellate court can review the issue for plain error. The Fifth Circuit, as opposed to other circuits, had the practice of refusing to review factual matters not raised before the district court. In Davis v. United States, a ... Read More
  • March 2020
    The Council of the District of Columbia Approves Emergency Bill Expanding Foreclosure Protections
    On March 3, 2020, the Council of the District of Columbia approved an emergency bill amending certain portions of the Housing Finance Agency Act to extend the Agency’s Reverse Mortgage Insurance and Tax Payment Program (ReMIT). ReMIT is a pilot program crafted to address seniors facing foreclosure on a reverse mortgage by providing subsidy payments (up to $25,000) to help ... Read More
  • March 2020
    SCOTUS Opinion: No Pre-emption for States to Use Federal Immigration Information to Enforce State Identity Theft Law
    Under federal law, employers must verify, through an I-9 form, that they have “verified” that each new employee “is not an unauthorized alien.” In Kansas v. Garcia, three persons who were living in the United States illegally used the same false Social Security number on their I-9 forms, as well as their tax withholding forms, and were prosecuted under ... Read More
  • February 2020
    SCOTUS Opinion: Court Strictly Interprets “Actual Knowledge” For ERISA Limitations Period
    Under the Employee Retirement Income Security Act of 1974, a person with “actual knowledge” of an alleged fiduciary breach by the administrator of a pension plan must file suit within three years of gaining such knowledge—otherwise, a six-year limitations period applies. In Intel Corp. Investment Policy Committee v. Sulyma, Intel argued that its former employee filed such a claim ... Read More
  • February 2020
    SCOTUS Opinion: Criminal Defendant Preserves Appellate Claim by Arguing for Lesser Sentence
    Under Federal Rule of Criminal Procedure 51(b), a criminal defendant wishing to “preserve a claim of error” for appeal must inform the trial judge “of the action the party wishes the court to take, or the party’s objection to the court’s action and the grounds for that objection.” In Holguin-Hernandez v. United States, when prosecutors sought a sentence of ... Read More
  • February 2020
    SCOTUS Opinion: Court Rejects Comparison of State Offenses to Generic Offenses for Armed Career Criminal Act Enhancement
    The Armed Career Criminal Act mandates a 15-year sentence for defendants that have prior convictions for a “serious drug offense” that “involve[es] manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance.” Eddie Lee Shular had six prior Florida convictions for selling and possessing cocaine with intent to sell. The federal trial court deemed those to be ... Read More
  • February 2020
    SCOTUS Opinion: Court Permits Appellate Review of Added Mitigating Factor in Death Penalty Case
    After James McKinney was convicted of two counts of first-degree murder, the trial court sentenced him to death upon the finding that he had two aggravating circumstances for each such murder. Twenty years later, a narrowly divided en banc Ninth Circuit reversed upon habeas review, holding that the state courts had not properly considered McKinney's post-traumatic stress disorder as a ... Read More
  • February 2020
    SCOTUS Opinion: Court Strikes Down The "Bob Richards Rule"
    The IRS allows affiliated corporations to file a group tax return. When the IRS issues a tax return to the group as a whole, federal law does not describe how to allocate the funds. The Ninth Circuit created a rule for that when it decided In re Bob Richards Chrysler-Plymouth Corp., 473 F.2d 262 (1973). The "Bob Richards Rule" mandated ... Read More
  • February 2020
    SCOTUS Opinion: Court Declines To Extend Bivens To Allow Suit Against Border Agent For Shooting
    U.S. Border Patrol agent Jesus Mesa, Jr. shot 15 year-old Sergio Adrian Hernandez Guereca while Mesa was on U.S. land, and Hernandez had run back across onto Mexican soil. Hernandez's family sued Mesa under Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971), which permits damages claims against federal agents even though no federal statute authorized the claim ... Read More
  • February 2020
    SCOTUS Opinion: Infant's "Habitual Residence" Not Determined by Agreement of the Parents
    The Hague Convention requires that a child wrongfully removed from her country of "habitual residence" must be returned to that country. In Monasky v. Taglieri, an infant was born in Italy to an American mother and Italian father. The relationship was abusive, and the mother soon relocated to America, taking the child with her. The father moved to have ... Read More
  • February 2020
    SCOTUS Opinion: Court Enforces Removal Jurisdiction In Vacating Orders Against The Catholic Church
    The case of Roman Catholic Archdiocese of San Yuan, Puerto Rico v. Feliciano concerned complaints filed by employees of Catholic schools in Puerto Rico alleging wrongful termination of their pension plan. Initially, the Puerto Rico trial court determined that the Roman Catholic and Apostolic Church in Puerto Rico was the proper entity that owed obligations to the plan, and ... Read More
  • January 2020
    SCOTUS Opinion: ERISA Case Remanded To Consider Alternative Arguments
    Retirement Plans Committee of IBM v. Jander concerned a claim by Employee Retirement Income Security Act of 1974 (ERISA) plan beneficiaries that the fiduciaries in control breached their duty of prudence on the basis of insider information. The standard for stating such a claim had been previously set forth by the Court in Fifth Third Bancorp v. Dudenhoeffer, ... Read More
  • January 2020
    SCOTUS Opinion: Denial Of Request For Relief From Automatic Bankruptcy Stay Is A Final, Appealable Order
    After Ritzen Group, Inc. sued Jackson Masonry, LLC over a contract, Jackson filed for Chapter 11 bankruptcy, which immediately halted Ritzen’s litigation. Ritzen moved the bankruptcy court for relief from the automatic stay, which was denied. Ritzen then filed a proof of claim, which was eventually disallowed. Ritzen then opted to file a notice of appeal of the bankruptcy court’s ... Read More
  • December 2019
    SCOTUS Opinion: Court Enforces The “American Rule” Of Costs Against The Patent And Trademark Office
    The Patent Act provides that when an applicant for a patent brings suit against the Patent and Trademark Office (PTO) when the Office rejects the applicant’s patent, the applicant must pay “[a]ll the expenses of the proceedings.” In Peter v. Nantkwest, Inc., a patent applicant sued the PTO under the Act when the PTO denied its application for a ... Read More
  • December 2019
    SCOTUS Opinion: Court Rejects Discovery Rule For Fair Debt Collection Practices Act Claims
    The Fair Debt Collection Practices Act requires that claims be brought “within one year from the date on which the violation occurs.” In Rotkiske v. Klemm, a debt collector filed suit against Kevin Rotkiske, served him where he no longer lived, and obtained a default judgment against him in 2009. Rotkiske learned of the judgment in 2014, and sued ... Read More
  • November 2019
    Virginia Supreme Court Adopts Partial Subordination Rule
    The case of Futuri Real Estate, Inc. v. Atlantic Trustee Services, LLC involved a question of first impression in Virginia regarding what should happen when a first-priority position lien subordinates itself to a third-priority position lien. Under the complete subordination rule, the first-priority position lien becomes junior to the other two liens on the property, the second-priority lien moves ... Read More
  • November 2019
    SCOTUS Opinion: Court Remands Alaska Political Contribution Limits Case For Closer Review
    The first opinion handed down by the Court in its 2019 Term concerned Alaska’s law limiting contributions to candidates or election-oriented groups to $500 per year. The Ninth Circuit upheld the law, but the Court, in a per curiam decision in Thompson v. Hebdon, reversed and remanded. The Court noted that the Ninth Circuit chose not to apply the ... Read More
  • August 2019
    Virginia Code Expands Uses for Discovery Depositions and Affidavits
    On July 1, 2019, an amendment to the Virginia Code took effect which allows discovery depositions and affidavits to be “used in support of or in opposition to a motion for summary judgment in any action when the only parties to the action are business entities and the amount at issue is $50,000 or more.” See Va ... Read More
  • June 2019
    SCOTUS Opinion: Police May Take Blood Test Of Unconscious Driver Without Warrant Under Exigent Circumstances Doctrine
    After Gerald Mitchell was arrested for driving while intoxicated, his breath test came out three times over the legal limit. He then became unconscious. Wisconsin law presumed that an unconscious person consents to a blood test, so the police took him to a hospital where a blood test revealed his BAC well over the legal limit. During his prosecution, Mitchell ... Read More
  • June 2019
    SCOTUS Opinion: Court Decides That Federal Courts Cannot Address Partisan Gerrymandering Claims
    The case of Rucho v. Common Cause combined two different gerrymandering claims: one from North Carolina where the claim was that the redistricting plan hurt Democrats, one from Maryland which claimed that the plan hurt Republicans. In both cases, the district courts ruled that the plans violated the Constitution. The Court, in a 5-4 opinion by Chief Justice Roberts, ... Read More
  • June 2019
    SCOTUS Opinion: Court Blocks The Citizenship Question From The 2020 Census Questionnaire For Now
    The Constitution requires a census to be taken every 10 years, and Congress delegated that task to the Secretary of Commerce. In 2018, the Secretary announced that he would reinstate a citizenship question on the 2020 census questionnaire, a question that had been included in almost every census up through 2000. Opposition to the question claimed that the question would ... Read More
  • June 2019
    SCOTUS Opinion: State Residency Requirement For Liquor Store Licenses Struck Down
    Tennessee law required that to get a license to sell alcohol, the seller had to first be a Tennessee resident for two years. The state agency tasked with enforcing the law declined to do so after the state’s attorney general opined that the law violated the Commerce Clause of the Constitution. When two non-resident businesses applied for licenses, a ... Read More
  • June 2019
    SCOTUS Opinion: Auer Deference To An Agency’s Interpretation Of Its Own Regulations Survives, Barely
    In Kisor v. Wilke, the underlying case concerned a Vietnam War veteran’s quest for disability benefits. The Department of Veterans Affairs interpreted its internal rule to deny the veteran benefits going back to when he first applied. The Federal Circuit affirmed the determination using Auer deference, established by the Court in Auer v. Robbins, 519 U.S. 452 (1997), ... Read More
  • June 2019
    SCOTUS Opinion: Court Strikes Supervised Release Statute That Permitted Additional Prison Time Without A Jury Determination
    In United States v. Haymond, Andre Haymond was found guilty by a jury of possessing child pornography, a crime that permitted a prison term of zero to 10 years. After serving his term and while on supervised release, Haymond was found with what appeared to be images of child pornography on his devices. Under 18 U.S.C. sec. 3583(k), a ... Read More
  • June 2019
    SCOTUS Opinion: Court Strikes Down Violent Felony Residual Clause As Vague
    Under 18 U.S.C. sec. 924(c)(3)(B), a defendant may receive a longer prison sentence for using a firearm in connection with a felony “that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” In prior cases, the Supreme Court struck down residual ... Read More
  • June 2019
    SCOTUS Opinion: Court Clarifies What “Confidential” Information is not Subject to a Freedom of Information Act Request
    In Food Marketing Institute v. Argus Leader Media, a newspaper filed a request under the Freedom of Information Act (FOIA) to the Department of Agriculture requesting information about retail stores who participate in the national food stamp program. The Department declined to provide store-level data on the basis that it was “confidential” and thus precluded from disclosure under ... Read More
  • June 2019
    SCOTUS Opinion: Court Strikes Down Law Against Immoral or Scandalous Trademarks
    The Lanham Act prohibits registration of any trademark that contains “immoral[] or scandalous matter.” In Iancu v. Brunetti, an applicant sought to trademark FUCT (pronounced F-U-C-T), but was denied by the Patent and Trademark Office. The applicant appealed, arguing that the Act’s restriction violated the First Amendment. The Federal Circuit struck down the restriction as unconstitutional. The Court, ... Read More
  • June 2019
    SCOTUS Opinion: Seamen Are Not Entitled To Punitive Damages Under Claims Of Unseaworthiness
    In Dutra Group v. Batterton, a sailor was injured when a hatch blew open. He sued the vessel’s owner claiming unseaworthiness, seeking compensatory and punitive damages. The owner moved to strike the punitive damages claim, which was denied by the district court and affirmed by the Ninth Circuit. The Court, in a 6-3 opinion by Justice Alito, reversed and ... Read More
  • June 2019
    SCOTUS Opinion: Court Vacates Murder Conviction Under Batson Challenge
    In Flowers v. Mississippi, Curtis Flowers, a black man, was tried six times for allegedly murdering four people in a small town furniture store. The first three times, he was sentenced to death but the convictions were overturned. The fourth and fifth trials ended in mistrials. Throughout those trials, the prosecution used their peremptory strikes to remove all black ... Read More
  • June 2019
    SCOTUS Opinion: Under Due Process Clause, State Cannot Tax Foreign Trust Solely Because A Beneficiary Resides In the State
    A family trust was created in New York state, with the trustee also located in New York, to distribute assets to the children of the trust creator under the trustee’s sole discretion. One of those children moved to North Carolina. The trustee then divided the trust into three separate trusts, one for each child, retaining full power and discretion over ... Read More
  • June 2019
    SCOTUS Opinion: Government Must Prove Immigrant Had Knowledge Of Unlawful Residence For Gun Possession Conviction
    Under 18 U.S.C. sec. 922(a)(2), it is illegal for an immigrant “illegally or unlawfully in the United States” to possess firearms and “knowingly violates” that prohibition. In Rehaif v. United States, an immigrant entered the country on a nonimmigration student visa, but was dismissed for poor grades, making his further residence unlawful. He then went to a firing ... Read More
  • June 2019
    SCOTUS Opinion: Court Permits Fifth Amendment Takings Claim Without First Seeking Compensation Under State Law
    In the prior case of Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985), the Court ruled that before a property owner could bring a federal action against a state under the Takings Clause of the Fifth Amendment, the owner had to first seek just compensation under state law in state court ... Read More
  • June 2019
    SCOTUS Opinion: Court Upholds Sex Offender Registration and Notification Act Against Delegation Challenge
    The Sex Offender Registration and Notification Act required all convicted sex offenders to register with the government. For those offenders convicted of a sex offense before the Act was enacted, the Act authorized the Attorney General to “specify the applicability” of the Act’s registration requirements and prescribe rules therefore. The Attorney General issued a rule applying the Act’s requirements ... Read More
  • June 2019
    SCOTUS Opinion: Court Treats Fabrication Of Evidence Claim As Malicious Prosecution For Statute Of Limitations Purposes
    In McDonough v. Smith, a commissioner of a county board of elections in New York was indicted by the district attorney for forging absentee ballots. The district attorney used fabricated evidence to secure a grand jury indictment, and used fabricated testimony at trial. After a mistrial, the commissioner was ultimately acquitted on all charges. Just under three years later, ... Read More
  • June 2019
    SCOTUS Opinion: Court Permits The Bladensburg Peace Cross To Remain Standing
    The Bladensburg Peace Cross was erected in 1925 on public land as a tribute to the lives of 49 soldiers from the local area who died in World War I. Certain atheistic groups filed suit in federal court, arguing that the cross violated the First Amendment’s Establishment Clause. The district court dismissed the case under the tests set forth in ... Read More
  • June 2019
    SCOTUS Opinion: Court Requires More Information Before Resolving “Junk Faxes” Case
    The Telephone Consumer Protection Act prohibits “unsolicited advertisements.” The Federal Communications Commission issued an order in 2006 interpreting that term to “include any offer of a free good or service.” However, under the Hobbs Act, the federal courts of appeals have the exclusive jurisdiction to enjoin, set a side, suspend . . ., or to determine the validity ... Read More
  • June 2019
    SCOTUS Opinion: Virginia’s House of Delegates Lacks Standing To Challenge Redistricting Order
    After Virginia redrew its districts following the 2010 census, 11 of those districts were held to be unconstitutionally drawn as being racially gerrymandered. Virginia’s Attorney General, a Democrat, declined to appeal the ruling. However, the Virginia House of Delegates, controlled by the Republicans, chose to appeal that ruling directly to the Supreme Court, arguing that the districts were constitutional. Justice ... Read More
  • June 2019
    SCOTUS Opinion: Court Retains Dual-Sovereignty Doctrine Exception To Double Jeopardy Rule
    Under the Fifth Amendment, defendants may not be indicted for the same crime twice—otherwise known as double jeopardy. However, the Court had, since Heath v. Alabama, 474 U.S. 82 (1985), held that double jeopardy did not occur when the same offense was prosecuted by different sovereigns, thus creating the “dual-sovereignty doctrine.” In Gamble v. United States, Terance Gamble was ... Read More
  • June 2019
    SCOTUS Opinion: Private Nonprofit Corporation Operating Public Access Channels Not A State Actor Subject To First Amendment
    New York City designated Manhattan Neighborhood Network, a privately owned nonprofit corporation, to operate its public access channels on the cable system in Manhattan. Two filmmakers produced a film attacking the Network to be run on the public access channels. The Network aired the film, but then suspended the filmmakers from the Network’s services and facilities. The filmmakers sued, alleging ... Read More
  • June 2019
    SCOTUS Opinion: Court Upholds Virginia Ban On Uranium Mining
    Virginia law flatly bans uranium mining in the Commonwealth. In Virginia Uranium, Inc. v. Warren, a company sought to circumvent that state law by arguing that the federal Atomic Energy Act preempted Virginia’s law, and put the Nuclear Regulatory Commission in charge of uranium mining. The company lost before the district court and the Fourth Circuit. The Supreme ... Read More
  • June 2019
    SCOTUS Opinion: Court Broadens Definition Of Generic Burglary Under Armed Career Criminal Act
    After Jamar Quarles pled guilty to being a felon in possession of a firearm, prosecutors sought to give him an enhanced sentence under the Armed Career Criminal Act because he had at least three prior “violent felony” convictions. The Act defines “burglary” as being a violent felony, meaning “unlawful or unprivileged entry into, or remaining in, a building or structure, ... Read More
  • June 2019
    SCOTUS Opinion: The Government Is Not A “Person” That Can Institute A Patent Review Under America Invents Act
    The Leahy-Smith America Invents Act contains provisions allowing a “person” other than a patent owner to use three types of administrative review to challenge the validity of a patent after it has been issued, with appeal rights to the Federal Circuit. In Return Mail, Inc. v. United States Postal Service, Return Mail obtained a patent for processing undeliverable ... Read More
  • June 2019
    SCOTUS Opinion: Court Holds Outer Continental Shelf Lands Act Preempts State Employment Law
    Brian Newton worked on a drilling platform off the California coast, where his employer paid him for time on duty but not for his time on standby, when he could not leave the platform. He filed a class action in California state court, arguing that state law required the employer pay for standby time. The employer removed the case to ... Read More
  • June 2019
    SCOTUS Opinion: Court Sets “No Objectively Reasonable Basis” Standard For Violation Of Bankruptcy Discharge Orders
    After Bradley Taggart was civilly sued for violating a business operating agreement, but before the case went to trial, he filed for Chapter 7 bankruptcy and received a discharge. After the discharge was granted, the civil suit recommenced and Taggart lost. The winners sought their attorneys’ fees incurred after Taggart’s petition was filed, which normally were discharged unless Taggart had ... Read More
  • June 2019
    SCOTUS Opinion: Medicare Act Requires Notice And Comment Before Any Changes To “Medicare Fraction”
    Under the Medicare Act, the enforcing agency is required to go through a public notice and comment period before changing any “substantive legal standard” affecting Medicare benefits. 42 U.S.C. sec. 1395hh(a)(2). Under Medicare Part A, the federal government paid hospitals who served low-income patients through a “Medicare fraction,” which was calculated by dividing the time spent by a hospital ... Read More
  • June 2019
    SCOTUS Opinion: Title VII Claims Not Limited To Those Made To Equal Employment Opportunity Commission
    In Fort Bend County, Texas v. Davis, Lois M. Davis filed a charge of sexual harassment and retaliation for reporting the harassment with the Equal Employment Opportunity Commission (EEOC). While the EEOC was investigating, the employer fired Davis when she went to a church function instead of work on Sunday. Davis handwrote “religion” on an intake questionnaire to ... Read More
  • June 2019
    SCOTUS Opinion: Time Served On A New Conviction Tolls The Supervised Release Period
    While on supervised release after serving time for violating federal law, Jason Mont was arrested under state law for drug trafficking. He entered into a plea agreement. After his supervised release period expired, he was sentenced in state court, and credited with time served. The federal court then issued a warrant based on his violation of his supervised release. Mont ... Read More
  • May 2019
    SCOTUS Opinion: Court Upholds Law Regarding Disposal Of Aborted Fetus Remains
    Indiana passed a law preventing abortion providers from treating aborted fetuses as waste that could be incinerated with surgical byproducts, and also barred abortion providers from conducting abortions when the mother’s reason for aborting was sex, race, or disability selective. The Seventh Circuit invalidated both provisions, holding that the first was not rationally related to a legitimate government interest, and ... Read More
  • May 2019
    SCOTUS Opinion: Third-Party Counterclaim Defendants Cannot Remove State Cases To Federal Courts
    In Home Depot U.S.A., Inc. v. Jackson, Citibank filed a state debt-collection action against George Jackson for charges on his Home Depot card. Jackson counterclaimed against Citibank and filed third-party class-action counterclaims against Home Depot and another company, alleging a scheme in which those companies induced consumers to buy water treatment systems at inflated prices. Citibank dismissed its claims ... Read More
  • May 2019
    SCOTUS Opinion: Probable Cause To Arrest Defeats A First Amendment Retaliatory Arrest Claim
    In Nieves v. Bartlett, during a winter sports festival, an intoxicated Russell Bartlett confronted Sergeant Nieves who was talking to other attendees, and told the officer to leave. Nieves backed off, but later Bartlett physically interfered with another officer’s questioning of an attendee, and Nieves initiated arrest. Bartlett was slow to comply and was handcuffed on the ground. Bartlett ... Read More
  • May 2019
    SCOTUS Opinion: Court Permits Judicial Review Of Social Security Benefits Appeal Dismissal
    After Ricky Lee Smith’s claim for disability benefits to the Social Security Administration was denied on merit after a hearing before an administrative law judge, he failed to timely appeal to the agency’s Appeals Council. The Council dismissed his appeal, and he sought judicial review of the dismissal in federal court. The district court denied review, stating that it lacked ... Read More
  • May 2019
    SCOTUS Opinion: Court Clarifies “Clear Evidence” Standard For Failure-To-Warn Claims
    Merck manufactured the drug Fosamax to combat osteoporosis in postmenopausal women. Merck’s scientists theorized that use of Fosamax might cause atypical femoral fractures, but the drug label approved by the Food and Drug Administration in 1995 did not include a warning for those fractures. After 1995, evidence of such fractures started to develop. In 2008, Merck applied to the FDA ... Read More
  • May 2019
    SCOTUS Opinion: Court Preserves Indian Treaty Hunting Rights
    In 1868, the United States and the Crow Tribe entered into a treaty in which the U.S. got most of the Tribe’s land in modern-day Montana and Wyoming, in exchange for hunting rights in unoccupied land. In Herrera v. Wyoming, Tribe member Clayvin Herrera was charged with off-season hunting in the Bighorn National Forest, and Wyoming’s appellate courts affirmed ... Read More
  • May 2019
    SCOTUS Opinion: Trademark Rights Survive Contract Rejection In Bankruptcy
    Under bankruptcy law, a debtor may reject any executory contract, being a contract where performance remains due on both sides. In Mission Product Holdings, Inc. v. Tempnology, LLC, Tempnology entered into an executory contract giving Mission a license to use its trademarks. Tempnology then filed for Chapter 11 bankruptcy, and asked the Bankruptcy Court to allow it to reject ... Read More
  • May 2019
    SCOTUS Opinion: Court Permits iPhone Customers To Make Monopoly Claim Against Apple For App Store
    Since 2008, Apple Inc. has established its App Store as the only lawful location that iPhone users could purchase apps for their devices. In Apple, Inc. v. Pepper, some of those iPhone customers sued Apple, alleging that it was using illegal monopolistic practices to overcharge them for the apps. At the initial stage of the litigation, Apple moved to ... Read More
  • May 2019
    SCOTUS Opinion: States Are Immune From Private Suits Filed In Other States
    Gilbert Hyatt made millions from a technology patent he developed while living in California. Prior to receiving the patent, he moved to Nevada, which has no income tax. The Franchise Tax Board of California thought his move was a sham, and began auditing him. Hyatt sued the Board in Nevada, claiming that the Board had committed numerous torts during its ... Read More
  • May 2019
    SCOTUS Opinion: Court Expands Limitations Period For Qui Tam Actions
    Under the False Claims Act, a qui tam civil action must be brought either within six years of the alleged statutory violation, or three years after the U.S. official charged with responsibility to act knew or should have known the relevant facts, but not more than 10 years after the violation, whichever is later. The issue in Cochise Consultancy, ... Read More
  • May 2019
    Virginia Supreme Court: Collateral Source Rule Can Apply To Contract Cases
    In Dominion Resources, Inc. v. Alstom Power, Inc., the U.S. District Court for the District of Connecticut certified the following question to the Virginia Supreme Court: “Does Virginia law apply the collateral source rule to a breach of contract action where the plaintiff has been reimbursed by an insurer for the full amount it seeks in damages from the ... Read More
  • April 2019
    SCOTUS Opinion: Federal Tort Claims Act Does Not Shield The Tennessee Valley Authority From Tort Suits
    Congress created the Tennessee Valley Authority (TVA) as a wholly owned public corporation of the United States to promote the economic development of the Tennessee Valley, and established that it could “sue and be sued in its corporate name.” One day, TVA workers were raising a power line that had fallen into the Tennessee River when Gary Thacker speedily drove ... Read More
  • April 2019
    DC Circuit Applies Discovery Rule To Erroneous Land Surveys Of Commercial Land
    The case of Commonwealth Land Title Insurance Company v. KCI Technologies, Inc., concerns a title insurance company’s suit against two surveyors whose surveys failed to find a 12-inch encroachment on a parcel of commercial real property. Before purchasing the property, ICG 16th Street Associates commissioned a land survey that found no encroachment. The next year, it purchased the property ... Read More
  • April 2019
    SCOTUS Opinion: Ambiguous Arbitration Provision Not Sufficient To Compel Class Arbitration
    In a 2010 case, the U.S. Supreme Court ruled that a court could not compel class arbitration under the Federal Arbitration Act when the agreement was silent on that issue, since class arbitration was fundamentally different from “traditional individualized arbitration.” In Lamps Plus, Inc. v. Varela, the arbitration provision did not expressly state that the parties agreed to ... Read More
  • April 2019
    SCOTUS Opinion: Refusal To Produce Vocational Data Not Preclusive Of Effect On Worker’s Social Security Claim
    In Biestek v. Berryhill, Michael Biestek applied for Social Security disability benefits, claiming he could no longer work due to physical and mental ailments. His case was heard by an administrative law judge (ALJ), who analyzed whether there was other work Biestek might be able to perform. The Social Security Administration offered the testimony of a vocational expert as ... Read More
  • April 2019
    SCOTUS Opinion: Court Rejects As-Applied Challenge To Execution By Pentobarbital
    After being convicted of murder in Missouri, Russell Bucklew was set to be executed through the lethal injection of the sedative pentobarbital. He raised an as-applied challenge, arguing that he suffered from a medical condition that would result in extreme pain if he received the pentobarbital. Bucklew suggested that he be executed through nitrogen hypoxia instead, which had never been ... Read More
  • March 2019
    SCOTUS Opinion: Supreme Court Broadens SEC’s Ability To Punish Disseminators Of False Information
    In Lorenzo v. SEC, Lorenzo disseminated false information that his boss provided to him, and which he knew was false, regarding the value of a company pursuant to a debenture offering. The SEC charged him with having violated Rule 10b-5 of the Securities and Exchange Commission, which makes it unlawful to (a) “employ any device, scheme, or artifice to ... Read More
  • March 2019
    SCOTUS Opinion: Foreign States Must Be Served On Home Soil With Process
    To gain personal jurisdiction over a foreign sovereign under the Foreign Sovereign Immunities Act, service of process must be accomplished, among other options, “by any form of mail requiring a signed receipt, to be addressed and dispatched . . . to the head of the ministry of foreign affairs of the foreign state concerned.” 28 U.S.C. sec. 1608(a)(3). In ... Read More
  • March 2019
    SCOTUS Opinion: National Park Service Cannot Regulate Navigable Waters
    For decades, John Sturgeon drove a hovercraft on the Nation River to get to a moose hunting ground in Alaska. A portion of that river ran through the Yukon-Charley Preserve, which was a designated a conservation unit under the Alaska National Interest Lands Conservation Act. The Act designated as public lands only and being part of such a unit ... Read More
  • March 2019
    SCOTUS Opinion: Google Class Action Settlement In Danger Of Losing Standing
    When a person enters search terms on Google, and then selects a web page that comes up in the search results, Google sends the host of the web page the search terms the person used to locate the page. Certain plaintiffs filed suit as a class, arguing that Google’s practice violated the Stored Communications Act. The parties settled, with ... Read More
  • March 2019
    SCOTUS Opinion: Entity Conducting Non-judicial Foreclosure Not A Debt Collector Under Fair Debt Collection Practices Act
    After Dennis Obduskey went into default on his mortgage that was secured against his home, the lender hired the law firm of McCarthy & Holthus, LLP to conduct a non-judicial foreclosure of the property. The firm sent Obduskey a notice of its intent to so act, and Obduskey requested that the firm provide him with verification of the debt as ... Read More
  • March 2019
    SCOTUS Opinion: Manufacturers Have Duty To Warn Sailors Of Products That Require Asbestos Parts
    In Air & Liquid System Corp. v. DeVries, a company manufactured equipment for three Navy ships that, as shipped, contained no asbestos, but required asbestos insulation or parts to work as intended. The Navy added the asbestos parts later when the equipment was installed on the ships. The equipment was put into use, releasing asbestos into the ... Read More
  • March 2019
    SCOTUS Opinion: Fractured Court Upholds 1855 Indian Treaty Against State Gasoline Tax
    A company owned by the Yakama Nation Indian tribe transported gasoline from Oregon to the tribe’s land in the State of Washington, using the public highways. Washington sought to tax those imports. The Yakama Nation objected, citing to an 1855 treaty with the federal government granting the Nation the right to use the public highways. The Washington state courts held ... Read More
  • March 2019
    SCOTUS Opinion: Court Rejects Narrow Reading Of Immigration Detention Statute
    Federal immigration law provides that certain criminal aliens may be detained by the Secretary of the Department of Homeland Security and not released until a determination on deportation is made. The statute in question, 8 U.S.C. § 1226(c)(1), directs the Secretary to arrest the alien “when the alien is released” from jail, and Section 1226(c)(2) mandates that the Secretary keep ... Read More
  • March 2019
    SCOTUS Opinion: No Copyright Infringement Suit Until A Copyright Is Registered
    In Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC, Fourth Estate licensed works to a news website. The parties cancelled the licensing agreement, but the website did not remove the works. Fourth Estate sued for copyright infringement under the Copyright Act, but its lawsuit was dismissed because Fourth Estate had only applied to register the works—the Register of ... Read More
  • March 2019
    SCOTUS Opinion: Lost Wages Awarded Under Railroad Retirement Tax Act Are Compensation Subject To IRS Taxation
    Michael Loos was injured while working for BNSF Railway Company. He sued his employer, and after trial was awarded $85,000 in pain and suffering, $11,212.78 in medical expenses, and $30,000 in lost wages as a result of him not being able to work from the injury. BNSF then argued that the lost wages award was “compensation . . . for ... Read More
  • March 2019
    SCOTUS Opinion: Copyright Act’s Award Of Costs Limited To Those Available Under Typical Bill Of Costs
    Oracle accused Rimini Street, Inc. of violating various copyrights, and won at trial. Under the Copyright Act, the district court awarded Oracle $12.8 million in litigation expenses under the Act. The district court acknowledged that it was awarding Oracle costs that were not within the six designated categories set forth under 28 U.S.C. secs. 1821 and 1920, ... Read More
  • February 2019
    SCOTUS Opinion: Court Limits Immunity Afforded Under The International Organizations Immunity Act Of 1945
    Originally, the International Organizations Immunity Act of 1945 (IOIA) granted foreign corporations virtually absolute immunity from suit. In 1952, the State Department adopted a more restrictive view, carving out commercial acts from that immunity. Congress then passed the Foreign Sovereign Immunities Act (FSIA) in 1976, which specifically excepted commercial activity with a sufficient nexus in the United States ... Read More
  • February 2019
    SCOTUS Opinion: Eighth Amendment Bars Execution Of Defendant Without “Rational Understanding” Of The Reason For Execution
    After he was sentenced to death for killing a police officer, Vernon Madison suffered a series of strokes and was diagnosed with dementia. In a prior series of appeals by Madison, the U.S. Supreme Court held that his mere inability to remember his crime did not establish that Madison was incompetent to be executed. When his execution was rescheduled on ... Read More
  • February 2019
    SCOTUS Opinion: Failure To File Appeal Is Constitutionally Deficient Even After Defendant Signs Appeal Waiver
    In Garza v. Idaho, Garza signed two plea agreements for state crimes, each of which included a waiver of his appeal rights. After he was sentenced, Garza told his counsel that he wanted to appeal. His counsel did not file any appeal, telling Garza that his waivers made any such appeal “problematic.” After the deadline to appeal passed, Garza ... Read More
  • February 2019
    SCOTUS Opinion: Deadline To Appeal Class Decertification Not Subject To Equitable Tolling
    Under Rule 23(f) of the Federal Rules of Civil Procedure, a party has 14 days to file with the federal circuit appeals court a petition for permission to appeal an order certifying or decertifying a class action. In Nutraceutical Corp. v. Lambert, when the district court decertified his class action, Troy Lambert chose to file a motion for ... Read More
  • February 2019
    SCOTUS Opinion: Judges Cannot Vote On Cases After Death
    In Yovino v. Rizo, the Ninth Circuit heard the case en banc (with 11 then-sitting judges) to restate that circuit’s interpretation of the Equal Pay Act. Judge Stephen Reinhardt authored the majority opinion that was joined by six of the judges, including Reinhardt himself. The other five judges filed concurrences that reached a similar result but under different ... Read More
  • February 2019
    Eighth Amendment Applies To State Civil Forfeitures
    Tyson Timbs pleaded guilty to dealing in heroin in Indiana, for which the maximum fine was $10,000. The State sought to use civil forfeiture to seize his SUV, which Timbs bought for $42,000, which was allegedly used to move the heroin. The state trial court denied the State’s request as violative of the Eighth Amendment’s protection against excessive fines, but ... Read More
  • February 2019
    Court Again Finds Man Ineligible For Death Penalty Due To Intellectual Disability
    In 2017, the Supreme Court held in Moore v. Texas, 581 U.S. ___ (2017), that the Texas Court of Criminal Appeals used a flawed analysis to determine that Bobby James Moore was not intellectually disabled, and thus eligible to receive the death penalty. In part, the flaw was that the Texas court focused on Moore’s adaptive strengths instead of ... Read More
  • February 2019
    Court Applies Intergovernmental Tax Immunity In Favor Of Federal Retirees
    In Dawson v. Steager, West Virginia sought to tax a federal law enforcement retiree’s pension. Under 4 U.S.C. §111, the federal government permits this so long as the state tax does not discriminate on the basis of the source of the compensation, otherwise known as the intergovernmental tax immunity doctrine. However, West Virginia, by statute, did not tax ... Read More
  • February 2019
    In Two Orders, SCOTUS Stays Louisiana Abortion Law, Permits Execution—Both Over Four Dissenters
    In June Medical Services, LLC v. Gee, a five-Justice majority (the Chief Justice and Justices Ginsburg, Breyer, Sotomayor, and Kagan) granted a stay of the Fifth Circuit’s mandate upholding a Louisiana law that required abortion providers to have admitting privileges at a hospital. The law is therefore on hold until the Court resolves the petition for certiorari of that ... Read More
  • January 2019
    Once Sold (Even Under Term Of Confidentiality), An Invention May Not Be Patented
    Under the Leahy-Smith America Invents Act, an invention may not be patented if it has been “in public use, sold, or otherwise available to the public before the effective filing date of the claimed invention.” In Helsinn Healthcare S.A. v. Teva Pharmaceuticals USA, Inc., the issue was whether an invention had been “sold” within the ambit of the ... Read More
  • January 2019
    Virginia Supreme Court: Newly-Acquired Subsidiary Does Not Receive Coverage Under Owner’s Property Insurance
    After EPC MD 15, LLC purchased commercial property fire insurance from Erie Insurance Exchange, it purchased another company that owned a separate building on another property. The new subsidiary was not a named insured under the original policy. When that building sustained fire damage, EPC submitted a claim, claiming that the purchase of the subsidiary made the subsidiary’s property “newly ... Read More
  • January 2019
    Robbery Is A “Violent Felony” Under Armed Career Criminal Act
    The Armed Career Criminal Act provides a 15-year mandatory minimum sentence for anyone who had previously been convicted of three “violent” felonies. The Act defines a “violent felony” as “any crime punishable by imprisonment for a term exceeding one year” that “has as an element the use, attempted use, or threatened use of physical force against the person of another.” ... Read More
  • January 2019
    Federal Arbitration Act Does Not Compel Arbitration For Disputes With Interstate Drivers
    In New Prime Inc. v. Oliveira, a driver for an interstate trucking company filed a class action claiming that the company denied its drivers lawful wages. The company, citing the mandatory arbitration provision in the driver’s contract, asked the district court to transfer the case to arbitration. The driver argued that the case was exempt under Section 1 of ... Read More
  • January 2019
    Are Attorneys Conducting Nonjudicial Foreclosures “Debt Collectors?” U.S. Supreme Court To Decide.
    On January 7, 2019, the U.S. Supreme Court will hear argument in Obduskey v. McCarthy Holthus, LLP, in which Wells Fargo, through counsel, conducted a nonjudicial foreclosure on Obduskey’s home after he defaulted on a loan. The foreclosure notice did not request that Obduskey make any payments on the debt—it simply set forth the total amount due under the ... Read More
  • January 2019
    Court Rejects Cap On Aggregate Attorney Fees Under Social Security Act
    Under the Social Security Act, an attorney representing a claimant seeking past-due benefits is limited in the fees he or she may charge. Section 406(a) of the Act capped fees at the lesser of 25 percent of the past-due benefits, or $6,000 in proceedings before the agency. Section 406(b) of the Act capped fees at 25 percent of the ... Read More
  • January 2019
    Federal Arbitration Act Forbids Courts From Weighing In On Arbitrability
    The Federal Arbitration Act permits parties to enter into contracts agreeing that an arbitrator, rather than a court, will resolve disputes arising out of that contract. However, sometimes there are disputes as to whether a particular claim is subject to arbitration under the agreement. Even when contracts delegate the arbitrability question to an arbitrator, some federal courts had reserved ... Read More
  • January 2019
    Court Upholds Qualified Immunity For Officer Responding To Domestic Dispute
    In City of Escondido v. Emmons, Officer Craig and Sergeant Toth responded to a call reporting a domestic dispute at a home. After talking to the occupants from outside the home for a bit, one of the occupants exited and tried to brush past Officer Craig. The officer quickly took the man to the ground and handcuffed him. The ... Read More
  • January 2019
    Subsequent SCOTUS Decisions Are Not “Clearly Established Law” For Habeas Petitions
    After being convicted by Ohio’s state courts for murder and sentenced to death in 1986, Danny Hill challenged the judgment on the basis that the Eighth Amendment prohibits someone who is “mentally retarded” from receiving a death sentence, as established in Atkins v. Virginia, 536 U.S. 304 (2002). When that failed in the state courts, he filed a federal ... Read More
  • December 2018
    Burglary Includes Structures Or Vehicles Adapted To Overnight Accommodation
    The criminal defendants in United States v. Sims and United States v. Stitt were both sentenced under the mandatory minimum 15-year prison term provided by the Armed Career Criminal Act, which applies where a defendant had three prior convictions for certain crimes, including “burglary.” Sims and Stitt had each been previously convicted of burglary under state laws, which ... Read More
  • November 2018
    Court Upholds Challenge To Designation Of A “Critical Habitat”
    Under the Endangered Species Act, when an animal is classified as “endangered,” the Secretary of the Interior must then designate the “critical habitat” of that animal for protection. In 2001, the dusky gopher frog was classified as endangered. The Secretary then designated the four areas where the frogs currently lived as critical habitats, along with another area, dubbed “Unit ... Read More
  • November 2018
    Court Rules ADEA Applies To All Governmental Entities Regardless Of Size
    When two firefighters were terminated to cut costs, they sued under the Age Discrimination Employment Act, alleging they were discriminated against based on their ages. The fire department argued that it did not have enough employees to qualify as an employer under the Act. The Act provides: “The term ‘employer’ means a person engaged in an industry affecting commerce ... Read More
  • September 2018
    Condo Liens Entitled To Super-Priority Status Regardless Of Number Of Months Sought
    Under D.C. Code sec. 42-1903.13, liens imposed by a condominium association for up to six months of unpaid condo fees were entitled to super-priority status ahead of all other liens on the condo. In two prior decisions, the D.C. Court of Appeals held that a foreclosure sale under such a super-priority lien necessarily wiped out all other liens of the ... Read More
  • August 2018
    Virginia: No Bona Fide Purchaser of an Easement; Terms of Revocable Trust May Permit Transfer by Non-Trustee
    The recent case of Kruck v. Krisak, 2018 WL 2386671 (Fairfax Cir. Ct. 2018) addressed two issues of first impression in Virginia regarding bona fide purchasers and how the transfer of real property to a trust might affect a grant of an easement. The case began with an easement for a septic field that was granted in 1974 by Austin Foster ... Read More
  • June 2018
    Justice Kennedy Announces His Retirement
    After 30 years as an Associate Justice of the U.S. Supreme Court, Justice Anthony M. Kennedy announced his retirement effective July 31, 2018. In a letter to President Trump, Kennedy wrote: “For a member of the legal profession it is the highest of honor to serve on this court. Please permit me by this letter to express my profound gratitude ... Read More
  • June 2018
    Court Rejects Overly Strict Standard Used By Special Master In State Dispute Over Water Rights
    In an original proceeding brought by Florida against Georgia in a dispute over water apportionment from an interstate river basin, the Court referred the matter to a Special Master for evidentiary proceedings. Florida, as the downstream state, argued that Georgia was using more than its fair share of the water from the basin, thereby harming wildlife in Florida. Ultimately the ... Read More
  • June 2018
    First Amendment Forbids Mandatory Union Fees From Public Sector Unions
    Illinois permits public employees to unionize, and Mark Janus was a state employee whose unit was represented by a public-sector union that engaged in collective bargaining on behalf of its members. The union required that Janus pay a union fee, but he objected since he opposed many of the collective bargaining positions the union took. In the previous case of ... Read More
  • June 2018
    Court Upholds President Trump’s Travel Ban
    In 2017, President Trump issued a proclamation restricting entry of people from eight countries, with exemptions for lawful permanent residents and case-by-case waivers under certain circumstances. The stated basis of the travel ban was that the named countries failed to provide the U.S. with sufficient information about the entrants, creating a security threat, although challengers to the ban (except as ... Read More
  • June 2018
    Court Strikes Down Abortion Notices Under First Amendment
    A number of pro-life crisis pregnancy centers mounted a First Amendment challenge to a California law that required licensed medical providers to provide a notice to its patients of the availability of free or low-cost services, including abortions, and required each unlicensed pro-life medical provider to notify patients that it was not licensed. The centers requested a preliminary injunction, which ... Read More
  • June 2018
    American Express’s “Antisteering” Provisions Survive Antitrust Scrutiny
    Like other credit card companies, American Express (AMEX) permits cardholders to purchase things on credit. However, AMEX encourages cardholder spending by providing more benefits to its members, and that results in higher fees charged to merchants. Merchants, in response, sometimes encouraged customers to use other cards, called “steering.” AMEX in turn put antisteering provisions into its merchant contracts. The government ... Read More
  • June 2018
    Narrow Majority Largely Upholds Texas Redistricting Plan Against Gerrymandering Challenge
    Abbott v. Perez presented the third opportunity for the Court to address gerrymandering claims under the Voter Rights Act, this time examining plans approved by the Texas legislature in 2013 that were largely in accordance with interim plans created by a three-judge Texas court. The 2013 plans evolved from earlier 2011 plans that did not meet with any court’s ... Read More
  • June 2018
    Supreme Court Has Appellate Jurisdiction To Hear Appeals From The Court Of Appeals For The Armed Forces
    There are a separate series of trial and appellate military courts that address criminal charges against service members, capped by the Court of Appeals for the Armed Forces (CAAF). After Keanu Ortiz was convicted of possession and distributing child pornography, he appealed to the Air Force Court of Criminal Appeals (CCA). Colonel Martin Mitchell was part of the panel of ... Read More
  • June 2018
    Defendant Who Consents To Separate Trials Not Subject To Double Jeopardy
    After Michael Currier was indicted for burglary, grand larceny, and unlawful possession of a firearm by a convicted felon, he opted for separate trials, doing burglary and grand larceny first, unlawful possession second. He was concerned that his prior convictions for burglary and larceny, which would help prove the unlawful possession charge, would prejudice the jury’s consideration of his current ... Read More
  • June 2018
    Government Needs A Warrant To Obtain Cell-Site Records To Track Suspect’s Movements
    When the FBI suspected that Timothy Carpenter was involved in several robberies, it identified his cell phone number and obtained cell-site information from his wireless carriers without a warrant, which could be used to track the movement of his phone, and thus Carpenter himself. Carpenter moved to suppress the information as violating the Fourth Amendment’s requirement for a warrant supported ... Read More
  • June 2018
    Patent Act Permits Recovery Of Lost Profits From Foreign Patent Infringement
    In WesternGeco LLC v. ION Geophysical Corp., WesternGeco sued ION for patent infringement under the Patent Act for creating an identical ocean floor surveying system that ION assembled overseas from parts made in America. A jury awarded WesternGeco damages and lost profits. ION moved to set aside the lost profits since it argued the Patent Act did not ... Read More
  • June 2018
    Removal Notice Must Specify Time And Place Of Proceeding To Stop Ten-Year Period To Cancel Removal Proceedings
    Once a nonpermanent resident has been in the U.S. for a ten-year continuous period, they can cancel removal proceedings under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. That period is stayed if the resident receives a written notice to appear that specifies a time and place for the removal proceedings during the ten year period. A ... Read More
  • June 2018
    Securities And Exchange Commission Administrative Law Judges Are “Officers Of The United States” Under Appointments Clause
    The Constitution’s Appointments Clause sets forth certain requirements for appointing “Officers of the United States,” who are more than mere employees of the federal government. The Securities and Exchange Commission (SEC) utilizes Administrative Law Judges (ALJ) to adjudicate administrative proceedings involving violations of securities laws. Those ALJs are not appointed in accordance with the Appointments Clause. When Raymond Lucia was ... Read More
  • June 2018
    Court Permits States To Impose Sales Taxes On Online Retailers Under The Commerce Clause
    In prior cases going back to 1992, the Court had ruled that the Commerce Clause precluded States from imposing sales taxes on sellers who did not maintain a physical presence in the State. But then the Internet exploded, and online retailers like Amazon regularly sell products in the various States while eluding sales taxes. In South Dakota v. Wayfair, ... Read More
  • June 2018
    Court Upholds District Court Judge’s Explanation For A Sentencing Modification
    A criminal drug offender was originally sentenced to 135 months’ imprisonment after the Sentencing Guidelines provided a range of 135 to 168 months. The U.S. Sentencing Commission thereafter revised the range for the same crime to 108 to 135 months. The defendant moved the district court to modify his sentence accordingly. The judge lowered the sentence to 114 months, not ... Read More
  • June 2018
    Courts Of Appeals Are Obligated To Correct Plain Sentencing Guideline Errors Under Federal Rule Of Criminal Procedure 52(b)
    Under Federal Rule of Criminal Procedure 52(b), a court of appeals “should exercise its discretion to correct”  an error in the district court’s application of the Sentencing Guidelines if the error “seriously affects the fairness, integrity, or public reputation of judicial proceedings.” In Rosales-Mireles v. United States, after the defendant was sentenced under a miscalculation under the Sentencing Guidelines ... Read More
  • June 2018
    Court Denies Injunctive Relief In Maryland Gerrymandering Case
    In Benisek v. Lamone, several Republican voters filed suit in 2017 challenging Maryland’s 2011 redrawing of its Sixth District as being gerrymandered against their constitutional rights. Those voters moved for a preliminary injunction in the district court, to allow the creation of a new districting map. The district court denied that relief and stayed the proceedings pending the decision ... Read More
  • June 2018
    Plaintiffs Lacked Standing To Bring Gerrymandering Claims
    In Gill v. Whitford, twelve Democratic voters brought claims arguing that the redrawing of Wisconsin’s districts after the 2010 census was an unconstitutional gerrymandering that made it harder for Democratic candidates to get elected. Specifically, the redrawing allegedly “cracked” Democratic voters into other districts where they could not reap a majority, and “packed” Democratic voters into a few districts ... Read More
  • June 2018
    Court Permits First Amendment Retaliation Claim Against Municipality Despite Probable Cause To Arrest
    Fane Lozman was something of a political gadfly to the City of Riviera Beach’s city council, and had filed a lawsuit against it. During a closed meeting, one of the council members suggested that the council “intimidate” Mr. Lozman, which the council supported. At a subsequent public meeting, when Lozman sought to discuss the recent arrest of a former county ... Read More
  • June 2018
    Minnesota Law Banning Political Insignias In A Polling Place Struck Down Under The First Amendment
    Under Minnesota law, a “political badge, political button, or other political insignia may not be worn at or about the polling place” where voters head to vote in elections. Election judges working the polls have authority to determine whether a particular item violates the prohibition, and those who refuse to remove offending items go through an administrative process that may ... Read More
  • June 2018
    Statements From Foreign Governments Entitled To Respectful Consideration Under Rule 44.1, But Not Conclusive
    In Animal Science Products, Inc. v. Hebei Welcome Pharmaceutical Co. Ltd., American purchasers of Vitamin C accused the selling Chinese companies of fixing prices in violation of U.S. antitrust laws. The Chinese companies argued that Chinese law required them to fix the prices, and the Chinese government, through its Ministry of Commerce, filed a statement in support of that ... Read More
  • June 2018
    Contracts Clause Permits Retroactive Minnesota Law Changing Life Insurance Beneficiaries
    In Sveen v. Melin, Mark Sveen purchased a life insurance policy naming his wife, Kaye Melin, as the primary beneficiary, and his two children from a prior marriage as contingent beneficiaries, in 1998. In 2002, Minnesota enacted a law under which a divorce automatically removed a spouse as a beneficiary from such a policy. Sveen and Melin divorced in ... Read More
  • June 2018
    Court Limits Tolling Of Statute Of Limitations In Class Actions To Future Filers
    Under prior Court precedent, when a class action is filed but then fails to gain certification, the statute of limitations is tolled for those within the putative class, allowing them to intervene as individual plaintiffs in that action, or bring an individual suit. In China Agritech, Inc. v. Resh, instead of bringing a separate individual suit or intervening, the ... Read More
  • June 2018
    Closely Divided Court Upholds Ohio Law Maintaining Voter Rolls
    Under Ohio law, when a voter fails to vote for two years, the state sends the nonvoter a postage prepaid return card to verify his or her address. Voters who do not return the card and do not vote in any election for four more years are then presumed to have moved and are removed from the voting rolls. In ... Read More
  • June 2018
    Court Dismisses As Moot Lawsuit Over Unlawful Immigrant’s Abortion
    When a pregnant minor unlawful immigrant sought to get an abortion while in the custody of the Office of Refugee Resettlement, the Office’s policy prohibited her from getting an abortion without the Director’s permission. The minor moved for a temporary restraining order of the policy, which the district court granted. The minor then attended preabortion counseling as required under Texas ... Read More
  • June 2018
    Criminal Defendants Sentenced Under Mandatory Minimums Not Entitled To Relief Under 18 U.S.C. sec. 3582(c)(2)
    In Koons v. United States, after several criminal defendants pleaded guilty to drug conspiracy charges, the district court discovered that the mandatory minimum sentence provided under 21 U.S.C. sec. 841(b)(1) was higher than the sentencing range provided under the Sentencing Guidelines. The district court decided that the mandatory minimums trumped the Guidelines, and sentenced the defendants under that range, ... Read More
  • June 2018
    Court Permits Bankruptcy Discharge Despite Oral Misrepresentation Over Ability To Pay Legal Bill
    When R. Scott Appling fell behind in paying his legal bills, he orally told his attorneys that he would repay them with a tax refund he was expecting to get. When he got the (lower than expected) refund, he used it to pay other expenses instead, lying to his attorneys so they would continue with the representation. After the attorneys ... Read More
  • June 2018
    Court Resolves Confusion In Certain Plea Agreements, Holds They Are Subject To Sentencing Guidelines
    In 2011, the Court had to decide whether a criminal defendant who entered into a plea deal under Federal Rule of Criminal Procedure 11(c)(1)(C) could petition to reduce his or her sentence under 18 U.S.C. sec. 3582(c)(2) (which permits a reduction upon a change in the Sentencing Guidelines) if the Sentencing Guidelines were later amended to lower the sentencing range ... Read More
  • June 2018
    Court Sides With Baker Who Refused To Bake Custom Cake For Gay Wedding
    When Jack Phillips refused, on religious grounds, to make a custom wedding cake for a gay couple, the couple filed a charge with the Colorado Civil Rights Commission alleging the refusal violated Colorado’s Anti-Discrimination Act. Phillips maintained he had a First Amendment right to refuse to bake the cake, but the Commission found him in violation of the Act and ... Read More
  • May 2018
    Private Investigations Not Compensated Under Mandatory Victims Restitution Act
    The Mandatory Victims Restitution Act of 1996 requires defendants convicted of certain federal offenses to reimburse victims for “lost income and necessary child care, transportation, and other expenses incurred during participation in the investigation or prosecution of the offense or attendance at proceedings related to the offense.” 18 U.S.C. sec. 3663A(b)(4). When Sergio Lagos defrauded a lender for tens of ... Read More
  • May 2018
    Police Cannot Search Vehicle Within Curtilage Of A Home Without A Search Warrant
    The Fourth Amendment has long required that any police officer entering the curtilage of a home to have a search warrant. However, the Fourth Amendment also has an “automobile exception,” permitting warrantless searches of vehicles due to their ready mobility. In Collins v. Virginia, a police officer entered the curtilage of a home (its driveway) without a warrant to ... Read More
  • May 2018
    Private Arbitration Agreements Preclude Employee Class Actions
    In Epic Systems Corp. v. Lewis, employees sued their employer in a class action for violation of the Fair Labor Standards Act. Those employees each had signed an agreement to arbitrate employment disputes under the Federal Arbitration Act, and the employer invoked those agreements to preclude the class actions. The employees argued that the National Labor Relations Act triggered ... Read More
  • May 2018
    Prior Precedents Did Not Preclude Tribal Sovereign Immunity In A Property Dispute
    After the Upper Skagit Indian Tribe purchased a 40-acre parcel of land in Washington State, a survey of that parcel revealed that approximately an acre of it lay on the other side of a boundary fence, which the Tribe’s new neighbors, the Lundgrens, believed they had owned for decades. The Lundgrens file a quiet title action, and the Tribe asserted ... Read More
  • May 2018
    Complaints Of Use Of Full Restraints Moot After Criminal Cases Ended
    A group of criminal defendants challenged the policy of the United States District Court for the Southern District of California, which permitted officers to put in-custody defendants in full restraints for nonjury proceedings in court. The district court denied the claims, but while the appeal before the Ninth Circuit was pending all of the cases involving those defendants resolved. The ... Read More
  • May 2018
    Drivers Have A Reasonable Expectation Of Privacy In A Car Rented By Another
    In Byrd v. United States, Terrence Byrd was pulled over while driving a car rented by Latasha Reed, although the rental agreement did not list Byrd as an authorized driver. The police searched Byrd’s car and discovered 49 bricks of heroin in the trunk. Byrd moved to suppress the evidence as fruits of an unlawful search, but the district ... Read More
  • May 2018
    Court Rejects Facial-Insufficiency Challenge To Overbroad Wiretap Orders
    A federal judge is only authorized to issue a wiretap order for wiretaps conducted within his or her jurisdiction. In Dahda v. United States, a Kansas federal judge issued wiretap orders authorizing wiretaps in Kansas, but also contained language permitting wiretaps in Missouri. Federal investigators conducted the wiretaps in Missouri, and the evidence they gathered led to Los and ... Read More
  • May 2018
    Court Strikes Down Federal Law Banning Sports Betting
    In a 7-2 opinion by Justice Alito, the Court reversed the Third Circuit and held that the Professional and Amateur Sports Protection Act was unconstitutional for violating the “anticommandeering rule” inherent in the Tenth Amendment, as it impermissibly sought to regulate state regulation of sports betting. The Act in question forbid states from authorizing betting schemes based on competitive sporting ... Read More
  • May 2018
    Sixth Amendment Permits Defendant To Insist On Not Conceding Guilt For First-Degree Murder
    Robert McCoy was charged with first-degree murder for killing his estranged wife’s mother, stepfather, and son. The evidence was damning, but McCoy insisted that he was innocent. His attorney at trial, Larry English, decided that the best strategy in the face of the evidence was to admit to the jury that McCoy committed the murders, but argue that his mental ... Read More
  • April 2018
    Court Strikes Portion Of Immigration and Naturalization Act as Void for Vagueness
    In one of Justice Scalia’s last majority opinions before his death, the Court held that part of a federal law defining “violent crime” was unconstitutionally void for vagueness in Johnson v. United States, 576 U.S. --- (2015). The Immigration and Nationality Act similarly provided that a person could be deported for committing an “aggravated felony,” which included a “crime of ... Read More
  • April 2018
    Court Awards Qualified Immunity To Officer Who Shot Woman Claiming Excessive Force
    In Kisela v. Hughes, officers reporting to a call of a woman acting erratically with a large knife discovered Ms. Hughes emerging from her house with a knife in her hand, heading toward another woman, Ms. Chadwick, who it turned out was Hughes’ roommate. Hughes stopped six feet from Chadwick, and the officers drew their firearms and told Hughes ... Read More
  • April 2018
    Service Advisors Are Exempt From Fair Labor Standards Act Overtime-Pay Requirement
    The Fair Labor Standards Act exempted “any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles” from overtime-pay requirements under the Act. In Encino Motorcars, LLC v. Navarro, a group of service advisors sued for overtime pay under the Act when the Department of Labor decided in 2011 that they were excluded from the exemption. The Court ... Read More
  • March 2018
    Court Rejects Fifth Circuit’s “Substantial Need” Test For Funding Under 18 U.S.C. sec. 3599(f)
    Under 18 U.S.C. sec. 3599(f), a defendant charged with a crime punishable by death can petition the trial court for funds that would be “reasonably necessary” for investigative, expert, or other services needed for the defense. In Ayestas v. Davis, a man sentenced to death made such a petition to support his federal habeas claim for ineffective assistance of ... Read More
  • March 2018
    Government Must Prove Specific Interference With Targeted Tax-Related Proceedings For Tax Obstruction Charge
    IRS code makes it a crime under 26 U.S.C. sec. 7212(a) to “obstruct or impede, or endeavor to obstruct or impede, the due administration of” the Internal Revenue Code, either “corruptly or by force or threats of force.” The IRS investigated Carlo Marinello, and ultimately charged him with several violations of the tax code, including for tax obstruction under Section ... Read More
  • March 2018
    Court Permits State Court Jurisdiction Over Securities Class Actions
    In Cyan, Inc. v. Beaver County Employees Retirement Fund, the Fund purchased shares in Cyan which then declined in value, prompting the Fund and others to file a class action suit against Cyan in state court under the Securities Act of 1933. Cyan argued that the Securities Litigation Uniform Standards Act of 1998, as it amended the 1933 Act, ... Read More
  • March 2018
    DC Super-Priority Lien on a Condo Cannot Foreclose Subject to First Priority Mortgage
    Following from its decision in Chase Plaza Condominium Assoc. v. JPMorgan Chase Bank, 98 A.3d 166 (DC 2014), in which the DC Court of Appeals held that a DC condominium foreclosing on its statutory six-month super-priority lien could by law extinguish an otherwise first-priority mortgage when the proceeds of the sale were insufficient to satisfy that mortgage, the Court was ... Read More
  • March 2018
    Collective Bargaining Agreements Must Be Interpreted Under Ordinary Principles of Contract Law
    In a per curiam opinion in CNH Industrial N.V. v. Reese, the Court reversed the Sixth Circuit’s decision to apply its precedent to render a collective bargaining agreement ambiguous as a matter of law. In a previous case, M&G Polymers USA, LLC v. Tackett, 574 U.S. ___ (2015), the Court required the Sixth Circuit to interpret such agreements using ... Read More
  • March 2018
    Prisoner’s Attorneys’ Fee Award Must First Come From The Judgment
    Murphy v. Smith Under 42 U.S.C. sec. 1997e(d)(2), a prisoner who prevails in a civil rights suit, and receives an attorneys’ fee award, has a portion of his judgment, not to exceed 25 percent, applied to that award. When Charles Murphy won his suit against two prison guards, the district court ordered that Murphy pay ten percent of his attorney’s ... Read More
  • March 2018
    Court Restricts Collections Efforts Under Foreign Sovereign Immunities Act
    In Rubin v. Islamic Republic of Iran, certain parties obtained a judgment against Iran under the state sponsors of terrorism exception to the Foreign Sovereign Immunities Act. They then sought to enforce that judgment against Iranian historical artifacts housed at the University of Chicago. The district court declined to permit the attachment, and the Seventh Circuit affirmed. The Court, ... Read More
  • March 2018
    Guilty Plea Does Not Bar A Constitutional Challenge To Conviction
    Class v. United States When Rodney Class was indicted for possessing firearms in his locked vehicle parked at the U.S. Capitol, he moved to dismiss on the basis that the law violated his Second Amendment and Due Process rights under the Constitution. The district court declined Class’ motion, and he entered into a written plea agreement, which did not expressly ... Read More
  • March 2018
    Court Reads Dodd-Frank Whistleblower Law Narrowly, Excludes Internal Whistleblower
    Digital Realty Trust, Inc. v. Somers In 2014, Paul Somers, a vice president for a real estate investment trust, reported to senior management several suspected securities-law violations by the trust. He was subsequently terminated. He brought suit claiming protection as a whistleblower as defined under the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, which defines whistleblowers as ... Read More
  • March 2018
    United States Permitted To Intervene In Water Dispute Between States
    In an original action concerning water rights agreed to between several states under the Rio Grande Compact, Texas argued that New Mexico was permitting its users to siphon off more water than the Compact permitted. The United States sought to intervene, making the same claims as Texas, in part because New Mexico’s actions depleted a reservoir through which the Government ... Read More
  • March 2018
    Insider Status In Bankruptcy Reviewed For Clear Error, Not De Novo
    In U.S. Bank, N.A. v. Village at Lakeridge, LLC, the Village petitioned for Chapter 11 bankruptcy with two primary creditors, U.S. Bank and an insider owner. It needed consent to enter into a “cramdown” reorganization plan, but U.S. Bank refused to consent, and the insider was statutorily unable to provide consent. To fix the problem, the insider owner transferred ... Read More
  • February 2018
    Immigrants Detained By The Government Not Entitled To Bond Hearings
    Under immigration law, applicants for admission to the United States may be detained by the Government until certain proceedings have concluded. Nothing in the applicable statutes limit the duration of detention, nor mention bond hearings. In Jennings v. Rodriguez, an immigrant filed a habeas corpus suit arguing that he should be entitled to a bond hearing once his detention ... Read More
  • February 2018
    Fractured Court Acknowledges Congress’ Power To Abridge Court Jurisdiction Mid-Case
    While a case was pending in federal district court regarding a taking of land into trust on behalf of an Indian Tribe, Congress passed the Gun Lake Trust Land Reaffirmation Act, which provided that suits relating to the land “shall not be filed or maintained in a Federal court and shall be promptly dismissed.” The plaintiff argued that the law ... Read More
  • February 2018
    Court Narrows Bankruptcy Safe Harbor Provision
    In Merit Management Group, LP v. FTI Consulting, Inc., the Court addressed 11 U.S.C. sec. 548(e), which allows bankruptcy trustees to set aside and recover certain transfers for the benefit of the bankruptcy estate, but not a “settlement payment . . . made by or to (or for the benefit of) a . . . financial institution . ... Read More
  • February 2018
    DC Circuit Reverses Attempt At Currency Conversion Through Rule 59(e)
    The case of Leidos, Inc. v. Hellenic Republic is a study in “be careful what you wish for.” After requesting an arbitration award in euros, and obtaining a judgment from the federal district court confirming that award in euros, Leidos, Inc. moved under Fed. R. Civ. P. 59(e) to convert that award to U.S. dollars, nunc pro tunc to ... Read More
  • February 2018
    Southern District Heightens Lawyers’ Duties in Preventing Spoliation of Evidence by Clients
    In Industrial Quick Search, Inc. et al. v. Miller, Rosado & Algois, LLP et al., January 2, 2018, the Southern District of New York issued a decision underscoring the importance of lawyers paying early attention to the need for imposing “litigation holds,” being proactive in ensuring compliance with such holds, and making a clear record of steps taken with ... Read More
  • January 2018
    Challenges to EPA “Waters of the United States” Rule Must Be Filed In Federal District Court
    The Clean Water Act limits the discharge of pollutants into “navigable waters,” which is defined by Congress as “the waters of the United States.” The EPA issued a Rule to define that term. While most agency rules are properly challenged in the federal district courts, the Act required challenges to rules issuing “any effluent limitation” or “issuing or denying any ... Read More
  • January 2018
    Court Holds That Tolling Statute “Stopped The Clock” On State Law Claims, Instead Of Providing A “Grace Period”
    In Artis v. District of Columbia, Artis filed a suit against D.C. in federal court with a federal discrimination claim and some state claims. Two and a half years later, the district court dismissed the federal claim, and with it dismissed the state claims for lack of jurisdiction. Under 28 USC sec. 1367(d), the “period of limitations” for re-filing the ... Read More
  • January 2018
    Court Finds Probable Cause To Arrest Partygoers For Unlawful Entry
    When police officers busted a raucous party being held in a vacant house, some of the partygoers said that “Peaches” owned the house and allowed the party. On the phone, though, Peaches admitted she had no such authority, and the true owner told police he had never given anyone permission to be there. The officers arrested the partygoers for violating ... Read More
  • November 2017
    Supreme Court Clarifies Which Deadlines Are Jurisdictional
    In Hamer v. Neighborhood Housing Services of Chicago, the Court, in a unanimous opinion by Justice Ginsburg, set forth a clear and easy way to tell whether a deadline is jurisdictional, and cannot be waived or extended, or is merely a “claim-processing rule” that can be extended: deadlines provided by statute are jurisdictional, while deadlines provided by court rules are ... Read More
  • June 2017
    Court Provides Guide For Defining Property In A Takings Case
    St. Croix has a regulation that prohibits the owners of two neighboring properties along the St. Croix River from being separately sold or built upon unless each property has at least an acre of developable land. The Murrs owned two such parcels, each with less than an acre available to be developed. The Murrs wanted to sell one of the ... Read More
  • June 2017
    Court Rules That District Courts Can Hear Mixed Cases Dismissed For Lack Of Jurisdiction, Over Justice Gorsuch’s First Dissent
    In Perry v. Merit Systems Protection Board, the Court had to determine which federal court could hear an appeal from the Board’s decision that it lacked jurisdiction to hear a federal employee’s case. When Perry was fired from his job with the U.S. Census Bureau, he claimed discrimination (making his case a “mixed” one), but then signed a settlement agreeing ... Read More
  • June 2017
    Court Applies Five-Year Limitations Period to SEC Disgorgement Actions
    In Kokesh v. Securities and Exchange Commission, the SEC sought to force Kokesh to disgorge millions he had misappropriated from various businesses from 1995 to 2009. While the Supreme Court had long held that a five-year limitations period applied to any SEC “action, suit or proceeding for the enforcement of any civil fine, penalty, or forfeiture,” the district court held ... Read More
  • June 2017
    Supreme Court Limits Government's Power to Seize Personal Property
    The Comprehensive Forfeiture Act mandates forfeiture of “any property constituting, or derived from, any proceeds the person obtained, directly or indirectly, as the result of” certain drug crimes. After brothers Tony and Terry Honeycutt were indicted for such drug crimes for selling a particular chemical through a hardware store Tony owned, Tony pled guilty and agreed to forfeit the bulk ... Read More
  • June 2017
    An ERISA Church Pension Plan Need Not Be Established by a Church
    Originally, the Employee Retirement Income Security Act exempted “church plans” from a variety of rules designed to ensure solvency, and defined those plans as having been “established and maintained . . . for its employees . . . by a church.” Later, Congress amended this exception to include “a plan maintained by an organization . . . the principal purpose ... Read More
  • June 2017
    Court Affirms Virginia Court’s Application Of Juvenile Punishment Standards
    In Graham v. Florida, 560 U.S. 48 (2010), the Court held that juvenile defendants convicted of nonhomicide offenses could not be sentenced to life without parole. Virginia had already abolished parole and instead replaced it with a “geriatric release” program which allowed older inmates to receive conditional release. In Virginia v. LeBlanc, LeBlanc was sentenced to life in prison for ... Read More
  • June 2017
    Patent Holders May Not Use Federal Law To Issue Injunctions Against Applicants For Biosimilar Products
    The Biologics Price Competition and Innovation Act of 2009 provides an abbreviated process for the FDA to approve drugs that are biosimilar to already licensed biological products. The Act, in part, requires an applicant for a biosimilar product to provide its application and manufacturing information to the patent holder within 20 days of the date the FDA notifies the applicant ... Read More
  • June 2017
    Court Again Limits Ability To Appeal Denial Of Class Certification
    Consumers who purchased Xbox 360s sued Microsoft both individually and as a class. The district court struck the class allegations, refusing to certify the class. The Ninth Circuit refused to hear the appeal of that ruling under Fed. R. Civ. P. 23(f), which allows such interlocutory appeals only by permission of the court of appeals. Instead of pursuing their individual ... Read More
  • June 2017
    Court Again Limits Forum-Shopping In Suits Against Nationwide Companies
    In Bristol-Myers Squibb Co. v. Superior Court of Cal., San Francisco City, a number of users of the drug Plavix sued the maker in California for alleged health problems caused by the drug, despite the fact that hardly any of the users lived in that state, and Bristol-Myers being incorporated in Delaware and headquartered in New York. None of the ... Read More
  • June 2017
    Supreme Court: Posting To Facebook Is A First Amendment Right
    A North Carolina law made it a felony for a registered sex offender “to access a commercial social networking Web site where the sex offender knows that the site permits minor children to become members or to create or maintain personal Web pages.” When a sex offender posted on Facebook about getting a traffic ticket dismissed, he was convicted and ... Read More
  • June 2017
    September 11 Detainees Denied A Bivens Action For Their Detention
    In Ziglar v. Abbasi, the Court was asked to extend the implied cause of action theories under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971) to alleged constitutional violations six men claimed to have suffered during detention shortly after the September 11 terrorist attacks. The Second Circuit permitted the claims to go forward against certain executive officials, ... Read More
  • June 2017
    Supreme Court Clarifies Expert Psychiatric Assistance In Indigent Defendant Cases
    The Court had previously held in Ake v. Oklahoma, 470 U.S. 68 (1985), that when an indigent defendant’s mental condition is relevant to his criminal culpability, the State must provide that defendant with access to a mental health expert who is sufficiently available to the defense, and independent from the prosecution, to conduct a psychiatric examination and “assist in evaluation, ... Read More
  • June 2017
    SCOTUS: Disparaging Trademarks Have First Amendment Protection
    The Lanham Act has a provision prohibiting the registration of trademarks that “disparage . . . or bring . . . into contemp[t] or disrepute” and “persons, living or dead.” Simon Tam, lead singer of the Japanese rock band “The Slants” sued when the band’s name was denied registration. The Federal Circuit held that the disparagement clause was facially unconstitutional ... Read More
  • June 2017
    Supreme Court Rejects Gender-Based Differentiation In Immigration Law
    The Immigration and Naturalization Act provided that a child born abroad to a father who was a U.S. citizen and a mother who was not was eligible for U.S. citizenship if the father had spent ten years in the U.S., with at least five of those years after turning 14. If the mother was the U.S. citizen, however, the mother ... Read More
  • June 2017
    Justice Gorsuch’s First Majority Opinion Is A Win For Debt Purchasers
    In Henson v. Santander Consumer USA, Inc., Justice Gorsuch authored the unanimous decision in a decidedly conversational tone, holding that an entity that purchases another’s debt and then seeks to collect that debt is not a “debt collector” under the Fair Debt Collection Practices Act, and thus is not beholden to that Act’s strictures for debt collection. The Act defines ... Read More
  • June 2016
    VA: Foreclosure Purchasers Face New Potential Hurdle In Virginia
    In Parrish v. Federal National Mortgage Association, the Virginia Supreme Court ruled 5-2 that when a defendant raises a bona fide question of the plaintiff's title in an unlawful detainer/ejectment action before the General District Court, that court loses subject matter over the case and the plaintiff must vindicate its title in the Circuit Court, thereby creating another ... Read More