Code of Federal Regulations
Supreme Court of Massachusetts resolves 3 issues regarding a reasonable efforts determination when grants of temporary custody are made to the Department of Children and Families
The Supreme Court of Massachusetts has resolved 3 issues regarding a reasonable efforts determination when grants of temporary custody are made to the Department of Children and Families. First the Court found that the judge must make a reasonable efforts determination before transferring custody for up to 72 hours at the emergency hearing. Second, where none of the four exceptions in § 29C apply, exigent circumstances do not excuse the department from making reasonable efforts, however the judge must determine what is reasonable in light of the safety of the child and necessity of immediate remove. Third, if the judge finds that the department did not make reasonable efforts, the judge has the equitable authority to order the department to take reasonable remedial steps. See Decision.
Dec 15, 2017 7:22 PM
Trump Administration Issues Guidance on Asset Management and Insurance Regulation
“On Oct. 26, 2017, the U.S. Treasury Department (Treasury) released the latest installment in a series of reports on financial regulation required by the president's Feb. 3 executive order on the financial system. That order lists seven "core principles" underlying all Federal regulatory efforts in the financial sector generally, (i) empowering American customers, (ii) preventing bailouts, (iii) fostering economic growth, (iv) enabling American competitiveness, (v) advancing American interests in international negotiations, (vi) making regulation efficient and (vii) restoring accountability.” See Article.
Dec 15, 2017 7:21 PM
Indiana Supreme Court: community corrections director lacked the authority to deprive the defendant of good time credit earned,
The Indiana Supreme Court has found that a community corrections director lacked the authority to deprive the defendant of good time credit earned, where the defendant had been in a community corrections facility that was subsequently revoked for failure to abide by the programs terms. The trial court had determined that the defendant was not entitled to good time credit for time served because the corrections director had deprived him of more good time credit days than he was entitled to receive. See Decision.
Dec 15, 2017 7:20 PM
Trump Administration Implements Tightening of Cuba Sanctions
“On November 8, 2017, the Trump administration followed through on its promise to reverse course on the loosening of US sanctions involving Cuba in recent years, in pursuit of its stated policy to ‘channel economic activity away from the Cuban military and to encourage the [Cuban] government to move toward greater political and economic freedom for the Cuban people.’” See Article.
Dec 15, 2017 7:19 PM
2nd Circuit Court finds petitioner's notice of appeal, functional equivalent of section 1292(b) petition
The 2nd Circuit Court found that in the case of Yu v. Hasaki Restaurant, the petitioner’s notice of appeal, which was filed within ten days of the District Court’s order sought to be reviewed, is the functional equivalent of a section 1292(b) petition to invoke jurisdiction over a later filed petition. See Decision.
Dec 15, 2017 7:18 PM
Delaware Bankruptcy Court Holds that it had Constitutional Authority to Approve Non-consensual Third-Party Releases
“On October 3, 2017, Bankruptcy Judge Laurie Selber Silverstein of the United States Bankruptcy Court for the District of Delaware issued a decision holding that the Bankruptcy Court had constitutional authority to approve third-party releases in a final order confirming a plan of reorganization. The Bankruptcy Court determined that, even though the confirmation order directly impacted the adjudication of the merits of certain non-bankruptcy common law claims, it's power to enter the confirmation order was not limited by the United States Supreme Court's decision in Stern v. Marshall, which held that bankruptcy courts lack the constitutional authority to enter final judgments on state law counterclaims.” See Article.
Dec 15, 2017 7:16 PM
Dismissal of claims against Kimberly-Clark "flushable" wipes reversed
The 9th Circuit Court reversed the dismissal of a complaint filed against Kimberly-Clark for the company’s advertisement that cleansing wipes they manufactured were flushable, where the plaintiff claims that this was false advertising. The Court held that “the district court erred by dismissing the original complaint on the ground that plaintiff failed to allege facts showing how she came to believe that the wipes were not flushable. The panel stated that it was aware of no authority that specifically required a plaintiff bringing a consumer fraud claim to allege how she "came to believe" that the product was misrepresented when, as in this case, all the Fed.R.Civ.P. 9(b) considerations had been met.” See Decision.
Dec 15, 2017 7:15 PM
Oklahoma Supreme Court strikes Okla. Stat. tit. 12, § 19.1
In John v. Saint Francis, a plaintiff-patient filed a medical negligence action against a surgeon. The surgeon filed a motion to dismiss for failure to attach an affidavit of merit. The District Court found that “the affidavit requirement in Okla. Stat. tit. 12, § 19.1, unconstitutionally imposed substantial and impermissible impediments on the patient's right to access the courts and certified its ruling.” The Oklahoma Supreme Court agreed, striking Section 19.1 as “an impermissible barrier to court access and an unconstitutional special law.” See Decision.
Dec 15, 2017 7:14 PM
Arkansas Supreme Court: circuit court should award relief necessary to ensure same-sex spouses have same rights on children's birth certificates
The Arkansas Supreme Court has, upon remand from the U.S. Supreme Court, remanded, stating “on remand, the circuit court should award declaratory and injunctive relief as necessary to ensure that same-sex spouses are afforded the same right as opposite-sex spouses to be listed on a child's birth certificate in Arkansas, as required under Pavan v. Smith, supra. Extending the benefit of the statutes at issue to same-sex spouses will implement the mandate of the Supreme Court of the United States without an impermissible rewriting of the statutes.” See Decision.
Dec 14, 2017 9:29 PM
The Trump DOJ’s View on Merger Enforcement and Remedies Explained
“President Trump's head of the Department of Justice's Antitrust Division, Makan Delrahim, recently explained that the division will cut back on behavioral commitments such as consent orders regulating conduct and will instead rely more on structural changes such as divestitures to remedy merger concerns. This could signal significant changes in how the DOJ resolves concerns with proposed mergers going forward.” See Article.
Dec 14, 2017 9:26 PM
FCC votes in favor of "FCC Acts to Restore Internet Freedom"
On Thursday, December 14, the Federal Communications Commission (FCC) voted in favor of the “FCC Acts to Restore Internet Freedom.” This will have the effect of removing the majority of the regulatory network that was in place to govern broadband providers. See Press Release.
Dec 14, 2017 9:26 PM
Environmental Protection Agency Will Not Pursue Financial Assurance Rule for Hardrock Mining
“On December 1, the Environmental Protection Agency (EPA) announced that it will not promulgate a final rule requiring hardrock mining facilities (i.e., facilities for the extraction, beneficiation, and processing of metals and non-metallic, non-fuel minerals) to establish financial assurances under Section 108(b) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).” See Article.
Dec 14, 2017 9:25 PM
Court erred by imposing a "rare" and "exceptional" circumstances requirement before a trial court may apply a contingency fee multiplier
The Supreme Court of Florida quashed a 5th District decision in an attorney’s fees dispute. The Florida Supreme Court found that trial courts may not apply a contingency fee multiplier to an award of attorney's fees to a prevailing party only in "rare" and "exceptional" circumstances, stating “the Fifth District erred by imposing a "rare" and "exceptional" circumstances requirement before a trial court may apply a contingency fee multiplier.” See Decision.
Dec 14, 2017 9:24 PM
Second Circuit: Secured Lender Not Entitled to a Make Whole Premium in ‘Cramdown’ Restructuring, But May Be Entitled to Higher Interest Rate
“On October 20, in Matter of M.P.M. Silicones, L.L.C., the United States Court of Appeals for the Second Circuit held that secured noteholders were not entitled to an approximately $200 million make-whole premium when their notes were exchanged for new notes as part of a Chapter 11 plan. Under the relevant indenture, a make-whole premium was due only in the event of an optional redemption of the notes; once the bankruptcy filing accelerated the notes' maturity, repayment was neither optional nor a redemption. The Second Circuit also held that restructured secured debt may be entitled to an "efficient market" rate rather than the typically lower "formula" or "prime-plus" rate used in Chapter 13 cases.” See Article.
Dec 14, 2017 9:22 PM
Pennsylvania Supreme Court: a sexual abuse evaluator may not testify to his opinion in certain situations
The Supreme Court of Pennsylvania found that in a criminal prosecution, a sexual abuse evaluator may not testify to his opinion that a child was sexually assaulted, where there is no physical evidence of abuse, and the opinion is premised upon the expert's apparent acceptance of the child's reporting and description. See Decision.
Dec 14, 2017 9:22 PM
President Trump Officially Kills Arbitration Rule
“On November 1, President Donald J. Trump signed a resolution passed by Congress to nullify the Consumer Financial Protection Bureau's Arbitration Rule. The Senate narrowly passed a resolution to repeal the Rule in late October, ensuring that the controversy would make its way to the President's desk. Trump's signature ensures that the hotly-debated Rule will not go into effect in early 2018 as scheduled.” See Article.
Dec 14, 2017 9:21 PM
Patent Office to Implement Substantial Fee Increases for Post-Grant Review Proceedings
“In a final rule issued November 14, 20171, the United States Patent and Trademark Office (USPTO) has revised its fee schedule, effective January 16, 2018. The agency justified its fee increases as needed to ‘support the USPTO's progress toward its strategic goals like pendency and backlog reduction, patent quality enhancements, technology modernization, staffing optimization, and financial sustainability.’” See Article.
Dec 14, 2017 2:12 AM
Louisiana governor executive order prohibiting "sexual orientation" or "gender identity" discrimination an unconstitutional interference with legislative authority
In April 2016, the Governor of Louisiana issued an executive order requiring that all state contracts include a provision where the contractor cannot discriminate on several bases including “sexual orientation” and “gender identity.” The Louisiana Court of Appeals affirmed the portion of the judgment granting injunctive relief. The Court reasoned, “the Governor's Executive Order constituted an unconstitutional interference with the authority vested solely in the legislative branch of our state government by expanding the protections that currently exist in anti-discrimination laws rather than directing the faithful execution of the existing anti-discrimination laws of this state.” See Decision.
Dec 14, 2017 2:12 AM
Superior Court of Pennsylvania: section 9799.24(e)(3) of SORNA violates the federal and state constitutions
The Superior Court of Pennsylvania has found that “that section 9799.24(e)(3) of SORNA violates the federal and state constitutions because it increases the criminal penalty to which a defendant is exposed without the chosen fact-finder making the necessary factual findings beyond a reasonable doubt.” Additionally, the Court found that “trial courts cannot designate convicted defendants SVPs (nor may they hold SVP hearings) until our General Assembly enacts a constitutional designation mechanism.” See Decision.
Dec 14, 2017 2:09 AM
Intellectual Property: Federal Circuit Upholds ITC Finding of Invalidity of Patent as ‘Abstract Idea’ under Alice Corp. v. CLS Bank Int’l
“[In October,] in Creative Technology Ltd. v. International Trade Commission, the Court of Appeals for the Federal Circuit upheld the International Trade Commission's (ITC) determination regarding patent invalidity under the Supreme Court's 2014 decision in Alice Corp. Ptv. Ltd. v. CLS Bank Int'l. The patent at issue, U.S. Patent No. 6,928,433, disclosed a user interface for portable media players. The claimed interface utilized an "organizational hierarchy" that organized musical tracks in a series of lists organized by category, subcategory, and item.” See Article.
Dec 14, 2017 2:08 AM
Bitcoin entered futures trading
On December 1st, the U.S. Commodity Future Trading Commission announced “the Chicago Mercantile Exchange Inc. (CME) and the CBOE Futures Exchange (CFE) self-certified new contracts for bitcoin futures products, and the Cantor Exchange (Cantor) self-certified a new contract for bitcoin binary options.” See Press Release.
Dec 14, 2017 2:07 AM
Utah Code section 31A-22-305.3 requires that all vehicles covered under the liability provisions also be covered under the underinsured provision
The Utah Supreme Court has found that Utah Code section 31A-22-305.3 requires that all vehicles covered under the liability provisions of an automobile insurance policy must also be covered under the underinsured motorist provisions of that policy, and with equal coverage limit, unless a named insured waives the coverage by signing an acknowledgment form meeting certain statutory requirements. See Decision.
Dec 14, 2017 2:07 AM
Intellectual Property Protection for Artificial Intelligence
“Beyond the traditional practice of litigation, opinion work and proceeding before the U.S. Patent and Trademark Office, attorneys are more frequently being engaged by clients confronting the impact of artificial intelligence technology on businesses. Unlike many intellectual property issues that percolate up from the lab bench to the C-suite, interest in developing a strategy for addressing AI is being driven at the highest corporate levels. A panel at the 2017 World Economic Forum in Davos-Klosters, Switzerland, for instance, focused on AI as a disruptive technology that will drive productivity as it continues to make its way into enterprise systems and computing platforms.” See Article.
Dec 14, 2017 2:06 AM
Colorado Supreme Court: Sixth Amendment right to hire counsel of choice includes the right to fire that counsel without showing good cause, even when a defendant seeks court-appointed counsel as a replacement
The Supreme Court of Colorado has held that “the Sixth Amendment right to hire counsel of choice includes the right to fire that counsel without showing good cause, even when a defendant seeks court-appointed counsel as a replacement.” However, before granting the defendant’s request to release retained counsel, the trial court must ensure that the defendant understands the consequences of doing so. In the case at hand, the attorney and client suffered a breakdown in communication. The trial court found it was too late in the process for counsel to exit because of non-payment and offered the defendant two options: continue with his retained counsel or represent himself. The defendant chose to continue with his retained counsel. See Decision.
Dec 14, 2017 2:05 AM
Applied Underwriters Inc., Loses Argument to Enforce Mandatory Forum Selection Clause in Reinsurance Contract
“On September 12, the District Court for Connecticut denied a motion to transfer predicated on a mandatory forum selection clause in a reinsurance contract. . . The court  analyzed whether the clause would be enforceable under the law of the chosen forum state (Nebraska). As part of that analysis, the court had to determine if Aiello had sufficient minimum contacts to establish personal jurisdiction in Nebraska. "[T]here is a clear distinction between conventional commercial contracts and those that arise in the business of insurance." While an insurance company that markets policies to residents of a given state establishes sufficient minimum contacts within that state, the insureds do not simultaneously establish sufficient contacts with the insurer's home state.” See Article.
Dec 12, 2017 5:26 PM
Supreme Court Refuses to Hear Password-Sharing Case, Leaving Scope of Criminal Liability Under Computer Fraud and Abuse Act Unclear
“On Tuesday, October 10, 2017, the United States Supreme Court denied certiorari in Nosal v. United States, 16-1344. Nosal asked the Court to determine whether a person violates the Computer Fraud and Abuse Act's prohibition of accessing a computer "without authorization" when using someone else's credentials (with that other user's permission) after the owner of the computer expressly revoked the first person's own access rights.” See Article.
Dec 12, 2017 5:25 PM
Motion for partial stay of preliminary injunction in case challenging prohibition of transgender individuals in the military denied
On December 11, the U.S. District Court for the District of Columbia denied a motion for partial stay of a preliminary injunction pending appeal in the case of the prohibition of transgender individuals entering the military. The Court found that none of the 4 factors considered when considering a motion to stay an injunction pending appear justified the stay in this case. See Order.
Dec 12, 2017 5:25 PM
Important tax information for those affected by California wildfires
Authors Genevieve Larson and Yin Ho provide guidance on property tax questions arising from the recent California wildfires. They note, “if a fire or other sudden disaster destroys your real property or causes damage in excess of $10,000 dollars, you are entitled to an immediate reduction of your property tax liability beginning on the date of damage or destruction. To obtain the reduction, you must submit an application with your local assessor.” See Article.
Dec 12, 2017 5:24 PM
White House announces space exploration intentions
In a press release, the White House announced that “President Donald J. Trump has signed a space policy directive instructing the National Aeronautics and Space Administration (NASA) to pursue manned extraterrestrial exploration.” See Press Release.
Dec 12, 2017 5:23 PM
DOJ Announces Revised FCPA Corporate Enforcement Policy
“On November 29, 2017, Deputy Attorney General Rod Rosenstein expanded upon the Department of Justice's ("DOJ") long-running efforts to encourage companies to self-disclose Foreign Corrupt Practices Act ("FCPA") violations by announcing a revised FCPA Corporate Enforcement Policy that the DOJ has incorporated into the United States Attorneys' Manual. The revised policy effectively codifies with certain "improvements" the so-called "FCPA Pilot Program" that DOJ started in April 2016 and extended in April 2017.” See Article.
Dec 12, 2017 5:22 PM