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Cases & Experience

Appellate Jurisdiction—Cases Consolidated in District Court

Hall v. Hall, No. 16-1150 Federal Rule of Civil Procedure 42 permits a district court to consolidate actions that involve a common question of law or fact.  Sometimes, even though cases are consolidated, one of the consolidated cases will reach final judgment while others remain pending.  The lower courts have divided as to whether a […]

Federal Appellate Jurisdiction—Finality Of Order Dismissing One Among Many Consolidated Cases

Gelboim v. Bank of America Corp., No. 13-1174 (described in the June 30, 2014, Docket Report) Under 28 U.S.C. § 1291, the federal courts of appeals have jurisdiction over “final decisions of the district courts.” Today, the Supreme Court unanimously held that complaints that have been consolidated for purposes of multidistrict litigation (“MDL”) pretrial proceedings “retain[] […]

Cases of Interest to the Business Community

In recent weeks, the Supreme Court has also invited the Solicitor General to file briefs expressing the views of the United States in the following cases of interest to the business community: Google Inc. v. Oracle America, Inc., No. 14-410: The question presented is whether copyright protection extends to all elements of an original work […]

Cases of Interest to the Business Community

In recent weeks, the Supreme Court has also invited the Solicitor General to file briefs expressing the views of the United States in five cases of interest to the business community: Spokeo, Inc. v. Robins, No. 13-1339: The question presented is whether Congress may confer Article III standing upon a plaintiff who suffers no concrete […]

Bankruptcy Code—Appealability of Order Denying Confirmation of Plan

Bullard v. Blue Hills Bank, No. 14–116 (previously described in the December 15, 2014, Docket Report) Under 28 U.S.C. § 158(d)(1), litigants in bankruptcy cases may appeal “final decisions, judgments, orders, and decrees” of district courts and bankruptcy appellate panels. Today, the Supreme Court decided in Bullard v. Blue Hills Bank, No. 14-116, that an order […]

Patent Act—Standard for Enhanced (Willfulness) Damages

Halo Elecs., Inc. v. Pulse Elecs., Inc., No. 14-1513 A patent infringer is liable for enhanced damages when his infringement is willful. 35 U.S.C. § 284. In In re Seagate Technology, LLC, 497 F.3d 1360 (Fed. Cir. 2007) (en banc), the Federal Circuit adopted a two-part test for determining when additional damages would be assessed: the […]

Due Process and Equal Protection—Right of Same-Sex Couples To Marry

Obergefell v. Hodges, No. 14-556 (previously described in the January 20, 2015, Docket Report) Two years ago, in United States v. Windsor, No. 12-307, the United States Supreme Court invalidated Section 3 of the federal Defense of Marriage Act, which provided that federal law did not recognize the marriages of same-sex couples. The Court held […]

Class and Collective Actions—Standard for Certification

 Tyson Foods, Inc. v. Bouaphakeo, No. 14-1146 Under Federal Rule of Civil Procedure 23(b)(3), a court may certify a suit for damages as a class action when “there are questions of law or fact common to the class” that “predominate over any questions affecting only individual members.” Similar certification standards apply when a plaintiff seeks […]

Federal Arbitration Act—Preemption of State Law

DIRECTV, Inc. v. Imburgia, No. 14-462 In AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011), the Supreme Court held that the Federal Arbitration Act (“FAA”) preempts state-law rules barring enforcement of an arbitration agreement if the agreement does not permit the parties to utilize class procedures in arbitration or in court. Before Concepcion, […]

Class Actions And Collective Actions—Class-Certification Standards

Under Rule 23 of the Federal Rules of Civil Procedure, a court may not certify a damages lawsuit as a class action unless “there are questions of law or fact common to the class” that “predominate over any questions affecting only individual members.” The Fair Labor Standards Act (FLSA) imposes similar certification requirements on collective […]

False Claims Act—Wartime Suspension Of Limitations And “First To File” Rule

Kellogg Brown & Root Services, Inc., et al. v. United States ex rel. Carter, No. 12-1497 (previously described in the July 1, 2014, Docket Report) Government contractors and health-care companies have become increasingly concerned about the application of the Wartime Suspension of Limitations Act (“WSLA”), 18 U.S.C. § 3287, and the Department of Justice’s and […]

Federal Jurisdiction—Class Action Fairness Act—Sufficiency of Jurisdictional Allegations in Removal Notice

Dart Cherokee Basin Operating Co. v. Owens, No. 13-719, (described in the April 7, 2014, Docket Report) To remove a civil action from state court to federal court, the defendant must “file … a notice of removal … containing a short and plain statement of the grounds for removal.” 28 U.S.C. § 1446(a). Under the Class Action Fairness Act of 2005 […]

Clean Air Act—EPA’s Consideration of Costs in Decision to Regulate the Emission of Hazardous Air Pollutants by Power Plants

Section 112 of the Clean Air Act, as amended by the Clean Air Act Amendments of 1990 (42 U.S.C. § 7412), requires the Environmental Protection Agency to list major sources of hazardous air pollutants and then to promulgate emission standards for those sources. Within this framework, Congress carved out a listing analysis that applies only to […]

Trademarks—First Amendment

Matal v. Tam The Lanham Act prohibits the registration of trademarks that “disparage … or bring … into contemp[t] or disrepute” any “persons, living or dead.” The Federal Circuit held this provision facially unconstitutional pursuant to the First Amendment’s Free Speech Clause. Today, in a splintered set of opinions that all agreed with the ultimate […]

Patent Act—Venue

TC Heartland LLC v. Kraft Food Brands Group LLC, No. 16-341 The Supreme Court today agreed to resolve a dispute regarding venue in patent cases. The patent venue statute, 28 U.S.C. § 1400(b), provides that a patent infringement action “may be brought in the judicial district where the defendant resides.” In Fourco Glass Co. v. […]

Federal Diversity Jurisdiction—Citizenship of Unincorporated Entities

Americold Realty Trust v. ConAgra Foods, Inc., No. 14-1382 Today, the Supreme Court held that, for purposes of diversity jurisdiction, an unincorporated legal entity has the citizenship of its members (including its shareholders)—even if the entity is labeled a “trust.” Federal courts have jurisdiction over controversies between “citizens” of different States. 28 U.S.C. § 1332(a)(1). For […]

Statutes of Limitations—Equitable Tolling

Menominee Tribe of Wisconsin v. United States, No. 14-510 A statute of limitations is subject to equitable tolling if a litigant demonstrates that, despite pursuing his rights diligently, some extraordinary obstacle prevented timely filing of a complaint. In a unanimous opinion written by Justice Alito, the Supreme Court today clarified how courts are to determine […]

Fair Housing Act—Disparate-Impact Claims

Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc., No. 13-1371 Claims of discrimination based on race, sex, or other protected characteristics may rest on a claim of disparate treatment, which requires proof that the defendant had a discriminatory purpose or motive; or of disparate impact, which requires proof that a facially […]

Bankruptcy—Voidability Of Underwater Mortgage Liens

Section 506(a) of the Bankruptcy Code provides that a creditor’s claim is a “secured claim to the extent of the value of such creditor’s interest in the estate’s interest in such property”—that is, it is a secured claim for an amount equal to the present value of the collateral—and is an “unsecured claim” for the […]