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Archives

  • Bankruptcy Code—Recharacterizing Claims as Capital Contributions

    PEM Entities LLC v. Levin, No. 16-492 When a small business is teetering on the brink of insolvency, the owner of the business will sometimes infuse the business with cash, characterizing the transaction as a loan to be repaid when the business rebounds. If the business ends up in bankruptcy, however, there will sometimes be […]

  • Securities Law—State Court Jurisdiction Over “Covered Class Actions”

    Cyan, Inc. v. Beaver County Employees Retirement Fund, No. 15-1439 Congress enacted the Securities Litigation Uniform Standards Act of 1998 (SLUSA) to prevent certain State private securities class action lawsuits alleging fraud from being used to frustrate the objectives of the Private Securities Litigation Reform Act. Among SLUSA’s reforms was a provision authorizing the removal […]

  • Dodd-Frank Act—Reach of “Whistleblower” Provision

    Digital Realty Trust, Inc. v. Somers, No. 16-1276 The Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 prohibits retaliation against “whistleblowers” who “mak[e] disclosures that are required or protected under the Sarbanes-Oxley Act of 2002” and other securities laws. The Dodd-Frank Act defines a “whistleblower” as an “individual who provides … information relating […]

  • First Amendment—Applicability to Public Accommodations Laws

    Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, No. 16-111 Colorado’s Anti-Discrimination Act prohibits businesses that sell goods to the public from discriminating based on sexual orientation. Today, the Supreme Court granted certiorari to decide whether application of that act to a Christian baker who refused to make a cake for a same-sex couple’s wedding […]

  • Immigration Law—Validity of Executive Orders Limiting Entry of Foreign Nationals

    Trump v. Int’l Refugee Assistance Project, No. 16-1436 Trump v. Hawaii, No. 16-1540 Executive Order No. 13780 suspends the entry of nationals from six foreign countries for a 90-day period.  A variety of lawsuits have been filed to challenge whether the Executive Order violates the First Amendment’s Establishment Clause (by targeting predominantly Muslim nations) or […]

  • America Invents Act—Inter Partes Review

    Oil States Energy Services, LLC v. Greene’s Energy Group, LLC, No. 16-712 The America Invents Act, passed by Congress in 2011, authorizes third parties—including alleged patent infringers—to ask the Patent Trial and Appeal Board of the U.S. Patent & Trademark Office to review existing patents, which may be canceled if any patent claim is found […]

  • Patents—Inter Partes Review

    SAS Institute Inc. v. Lee, No. 16-96 The Leahy-Smith America Invents Act permits third parties to ask the U.S. Patent and Trademark Office to reexamine claims in a patent that has already been issued—a process called “inter partes review.”  Today, the Supreme Court agreed to decide whether, in conducting such a review, the Patent Trial […]

  • Bankruptcy Code—Safe-Harbor Transfers to Financial Institutions

    Merit Management Group, LP v. FTI Consulting, Inc., No. 16-784 Section 546(e) of the Bankruptcy Code, 11 U.S.C. § 546(e), protects certain prepetition payouts by or to financial institutions from clawback by the trustee of the ensuing bankruptcy estate.  In particular, the safe harbor protects transfers made by a debtor by or to a broker, […]

  • Separation of Powers—Authority of Congress to Target Specific Lawsuits

    Patchak v. Jewell,  No. 16-498 In Patchak v. Jewell, a landowner challenged the Secretary of the Interior’s decision to take a nearby property into trust for the Gun Lake Tribe on the ground that the Secretary lacked the power to do so under the Indian Reorganization Act. The case went up to the Supreme Court, […]

  • Alien Tort Statute—Application to Corporations

    Jesner v. Arab Bank, PLC, No. 16-499 The Alien Tort Statute provides that United States district courts “shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” In Kiobel v. Royal Dutch Petroleum, the Supreme […]

  • Securities Exchange Act of 1934—Duty to Disclose

    Leidos, Inc. v. Indiana Pub. Ret. Sys., No. 16-581 Section 10(b) of the Securities Exchange Act of 1934 and accompanying SEC Rule 10b-5 prohibit fraud in connection with the purchase or sale of securities. Item 303 of SEC Regulation S-K requires that certain public filings, including quarterly and annual reports, contain a discussion and analysis […]

  • Bankruptcy Code—Insider Status

    U.S. Bank N.A. v. Village at Lakeridge, LLC, No. 15-1509 The Bankruptcy Code affords special treatment to creditors who are considered “insiders” under the Code. The Code provides that, before a Chapter 11 plan of reorganization may be approved, at least one class of impaired claims must vote in favor of the plan, determined “without […]

  • Personal Jurisdiction—Constitutional Limits of General Jurisdiction

    BNSF Railway Co. v. Tyrrell, No. 16-405 Under the Supreme Court’s ruling in Daimler AG v. Bauman, 134 S. Ct. 746 (2014), a state court may only exercise general personal jurisdiction over a defendant that is “at home” in the forum state. In a case arising under the Federal Employers’ Liability Act, the Supreme Court […]

  • Statutes of Repose—Availiability of American Pipe Tolling

    California Public Employees’ Retirement System v. ANZ Securities, Inc., No. 16-373 In American Pipe & Construction Co. v. Utah, 414 U.S. 538 (1974), the Supreme Court held that “the commencement of a class action suspends the statute of limitations as to all asserted members of the class who would have been parties had the suit […]

  • Fair Debt Collection Practices Act—Debt Collectors

    Henson v. Santander Consumer USA, Inc., No. 16-349 The Fair Debt Collections Practices Act governs the conduct of “debt collectors,” a term that includes any person who “regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.” The Fourth Circuit ruled that a consumer […]

  • National Labor Relations Act—Enforceability of Arbitration Clauses

    Epic Systems Corp. v. Lewis, No. 16-285 Ernst & Young LLP v. Morris, No. 16-300 National Labor Relations Board v. Murphy Oil USA, Inc., No. 16-307 The collective bargaining provisions of the National Labor Relations Act (NLRA) give employees the right to “engage in . . . concerted activities for the purpose of collective bargaining or other […]

  • Biologics Price Competition and Innovation Act—Notice Requirement

    Sandoz Inc. v. Amgen Inc., No. 15-1039 The 2009 Biologics Price Competition and Innovation Act, a component of the Affordable Care Act, created an abbreviated regulatory pathway for the FDA to license “biosimilar” products—i.e., products that are “highly similar” to approved biological products. The statute’s “Notice of commercial marketing” provision requires a biosimilar applicant to provide […]

  • Clean Water Act—Judicial Review

    National Association of Manufacturers v. Department of Defense, No. 16-299 The Clean Water Act confers original jurisdiction on the federal courts of appeals to hear petitions for review of a narrow range of agency actions. The courts of appeals have been divided over how broadly to read that provision. In this case, 31 states and […]

  • 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. […]

  • Hague Service Convention—International Service of Process

    Water Splash, Inc. v. Menon, No. 16-254 The Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters—to which the United States is a party—permits service of process from one member state to another without the use of diplomatic channels. Article 10 provides in pertinent part that the Convention […]