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  • Clean Water Act – Liability

    The Clean Water Act distinguishes between point source pollution and nonpoint source pollution, and it regulates point source pollution through permits. The Supreme Court today granted certiorari to decide whether the Clean Water Act requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source, such […]

  • Title VII—Administrative Exhaustion

    Fort Bend County v. Davis, No. 18-525 Title VII requires employment-discrimination plaintiffs to complete the EEOC’s administrative process before filing suit in federal court. The Supreme Court has agreed to resolve a dispute among the federal courts of appeals as to whether the exhaustion requirement is a jurisdictional limitation on the courts or a claim-processing […]

  • Outer Continental Shelf Lands Act—Applicability of State Law

    Parker Drilling Management Services v. Newton, No. 18-389 The Outer Continental Shelf Lands Act (OCSLA) provides that federal law is the exclusive source of law in offshore zones on the Outer Continental Shelf (i.e., the underwater territory that is within the jurisdiction of the United States but beyond the jurisdiction of any particular state). Under […]

  • Freedom of Information Act—Exemption for Confidential Private-Sector Information

    Food Marketing Institute v. Argues Leader Media, No. 18-481 The Freedom of Information Act entitles individuals to request information within the Government’s possession, subject to certain exemptions. Exemption 4 protects from disclosure all “confidential” private-sector “commercial or financial information.” Today, the Supreme Court granted certiorari to consider whether and to what extent proof of competitive […]

  • Bankruptcy Code—Good-Faith Defense to Civil Contempt

    Taggart v. Lorenzen, No. 18-489 A bankruptcy proceeding typically concludes with a discharge order, which “operates as an injunction against the commencement or continuation of an action” to collect the discharged debt. 11 U.S.C. § 524(a)(2). A discharge order must be enforced, if at all, through a court’s contempt powers. The Supreme Court today granted […]

  • Securities Exchange Act of 1934—Inferred Private Rights of Action

    Emulex Corp. v. Varjabedian, No. 18-459 Section 14(e) of the Securities Exchange Act of 1934 generally makes it unlawful for a person to make untrue or misleading statements of material fact in conjunction with a tender offer. The Supreme Court today granted certiorari to resolve a dispute among lower courts as to whether Section 14(e) […]

  • Lanham Act—Immoral or Scandalous Marks

    Iancu v. Brunetti, No. 18-302 Section 2(a) of the Lanham Act provides that a trademark may be issued if it “[c]onsists of or comprises immoral … or scandalous matter.” After the Federal Circuit held these provisions to violate the First Amendment’s Free Speech Clause on its face, the federal government asked the Supreme Court to […]

  • Administrative Law—Deference

    Kisor v. Wilkie, No. 18-15 Under the Administrative Procedure Act (APA), when an agency promulgates regulations that carry the force of law, the agency generally must follow a notice-and-comment rulemaking procedure.  The Supreme Court has held that when the agency subsequently interprets its regulations, the agency’s resolution of ambiguities is entitled to deference.  That rule—often […]

  • Maritime Law—Punitive Damages

    The Dutra Group v. Batterton, No. 18-266 The maritime-law doctrine of unseaworthiness provides a cause of action to seamen injured due to their employer’s failure to provide a seaworthy vessel. This cause of action exists alongside the Jones Act, which provides a separate cause of action for seamen injured or killed as a result of […]

  • Administrative Law—Hobbs Act

    PDR Network, LLC v. Carlton & Harris Chiropractic, Inc., No. 17-1705 The Telephone Consumer Protection Act (TCPA) prohibits the use of a fax machine to send an “unsolicited advertisement.” In 2006, the Federal Communications Commission (FCC) promulgated a rule interpreting “unsolicited advertisement” to include faxes that promote goods or services “even at no cost, such […]

  • Bankruptcy Law—Intellectual Property License Agreements

    Mission Product Holdings Inc. v. Tempnology, LLC, No. 17-1657 Section 365 of the Bankruptcy Code provides that a bankruptcy trustee may “assume or reject any executory contract” of the debtor and that “the rejection of an executory contract … constitutes a breach of such contract.” The Supreme Court today granted certiorari to decide whether the […]

  • Patent Law—Authority of Government to Institute Patent Review Proceedings

    Return Mail Inc. v. U.S. Postal Service, No. 17-1594 Section 18 of the Leahy-Smith America Invents Act authorizes a “person” who “has been sued for infringement” of a covered-business-method patent to institute a review of the validity of the patent by the U.S. Patent and Trademark Office. The federal government cannot be a defendant in […]

  • Copyright Act—“Full Costs” to Prevailing Parties

    Rimini Street, Inc. v. Oracle USA Inc., No. 17-1625 Under the Copyright Act, a court has discretion to “allow the recovery of full costs by or against any party,” in addition to an award of attorneys’ fees to the prevailing party. In this case, after a jury entered a verdict in favor of Oracle USA […]

  • Class Action Fairness Act—Class Actions Asserted As Counterclaims

    Home Depot U.S.A. Inc. v. Jackson, No. 17-1471 The Class Action Fairness Act (“CAFA”) authorizes “any defendant” in a state-court class action to remove the case to a federal district court, so long as the dispute concerns more than $5 million and minimal diversity requirements are satisfied. This case arose when the respondent was named […]

  • Preemption—Failure-to-Warn Claims in Pharmaceutical Cases

    Merck Sharp & Dohme Corp. v. Albrecht, No. 17-290 In a sequel to Wyeth v. Levine, 555 U.S. 555 (2009), the Supreme Court has granted certiorari to decide whether state-law failure-to-warn claims are preempted by a decision of the Food and Drug Administration (FDA) that rejected a proposal by the defendant drug manufacturer to warn […]

  • Fair Debt Collection Practices Act—Non-Judicial Foreclosure Proceedings

    Obduskey v. McCarthy & Holthus LLP, No. 17-1307 The question presented in this case is whether the Fair Debt Collections Practices Act (FDCPA), which protects against unfair and deceptive practices by “debt collectors,” applies to nonjudicial foreclosure proceedings. In the decision below, the Tenth Circuit affirmed the district court’s dismissal of the petitioner’s FDCPA lawsuit, […]

  • Copyright Law—Prerequisites to Filing Infringement Suit

    Fourth Estate Public Benefit Corporation v., LLC, No. 17-571 Section 411(a) of the Copyright Act provides that a civil action for copyright infringement may not be brought “until preregistration or registration of the copyright claim has been made in accordance with this title.” 17 U.S.C. § 411(a). In this case, the Supreme Court will […]

  • Federal Arbitration Act—“Wholly Groundless” Exception to Arbitrability

    Henry Schein Inc. v. Archer & White Sales Inc., No. 17-1272 The Federal Arbitration Act (FAA) requires that the terms of contractual arbitration provisions be enforced. In Rent-A-Center, West, Inc. v. Jackson, 561 U.S. 63, 68-69 (2010), the Court held that the FAA also requires enforcement of “agree[ments] to arbitrate ‘gateway’ questions of ‘arbitrability,’ such […]

  • Patent Law—Prior Art

    Helsinn Healthcare S.A. v. Teva Pharmaceuticals USA Inc., No. 17-1229 The Leahy-Smith America Invents Act (AIA) prohibits patents from issuing for “prior art.” Prior art has long included inventions that were already in public use or that were “on sale,” but the AIA’s definition of “prior art” was amended in 2011 to include inventions that […]

  • Class Actions—Time to Appeal Class Certification

    Nutraceutical Corp. v. Lambert, No. 17-1094 Federal Rule of Civil Procedure 23(f) establishes a fourteen-day deadline to seek leave to appeal an order granting or denying class certification. Most lower courts have concluded that this and similar mandatory but non-jurisdictional deadlines must be strictly enforced. After the U.S. Court of Appeals for the Ninth Circuit […]