Code of Federal Regulations
Rhode Island Supreme Court affirms termination of parental rights where father is service two consecutive life sentences
On November 29, the Rhode Island Supreme Court upheld a family court decree terminating the respondent’s parental rights, finding that “in light of the uncontradicted evidence of parental unfitness in this case, we are satisfied that any errors complained of were harmless beyond a reasonable doubt.” In this case, the respondent had been convicted of murder and was serving two consecutive life sentences. See Decision.
Dec 7, 2018 7:15 PM
Dismissal of Involuntary Bankruptcy Petition Against Taberna CDO is Win for Securitization Industry
“On November 8, 2018, Judge Vyskocil of the U.S. Bankruptcy Court for the Southern District of New York issued a decision dismissing the involuntary petition that had been filed against Taberna Preferred Funding IV, Ltd., a non-recourse CDO, thus ending a nearly seventeen-month-long saga that was followed closely by bankruptcy practitioners and securitization professionals alike.” See Article.
Dec 7, 2018 7:14 PM
California Building Standards Commission votes to require solar energy for homes built after 2020
On December 6, the California Building Standards Commission voted in favor of a new regulation that will require all new homes in California built after 2020 to have solar energy capacities. See Document.
Dec 7, 2018 7:13 PM
President Trump announces nomination for Attorney General
President Trump announced, today, that he will be nominating William Barr to the position of Attorney General. See Tweet.
Dec 7, 2018 7:13 PM
Wisconsin High Court Issues Order on Changes to Default Judgment Rule
“The Wisconsin Supreme Court recently issued an order adopting a modification to the state's default-judgment rule. The order, which the court issued Oct. 23, adopts a rule-change proposal the Judicial Council brought in April...Starting Jan. 1, the modification gives trial court judges the authority to find in default plaintiffs and other parties who don't respond to cross claims or counterclaims.” See Article.
Dec 7, 2018 7:12 PM
U.S. Supreme Court remands endangered species habitat case
On November 27, the U.S. Supreme Court held that the Endangered Species Act allows the Secretary of the Interior to designate private land as a “critical habitat.” The Court reasoned that “Section 1533(b)(2) describes a unified process for weighing the impact of designating an area as critical habitat. The provision's first sentence requires the Secretary to "tak[e] into consideration" economic and other impacts before designation, and the second sentence authorizes the Secretary to act on his consideration by providing that he "may exclude any area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of" designation.” The Court then remanded the decision for the lower court to consider whether “the Service's assessment of the costs and benefits of designation and resulting decision not to exclude Unit 1 was arbitrary, capricious, or an abuse of discretion.” See Decision.
Dec 7, 2018 7:10 PM
District Court Finds that the Convention on the Recognition and Enforcement of Foreign Arbitral Awards is not Preempted by State Law Prohibiting Arbitration of Insurance Disputes
“A district court judge in the U.S. District Court for the Eastern District of Louisiana has issued an order attempting to resolve the apparent tension created by Louisiana law barring compulsory arbitration provisions in insurance contracts, a contract containing both an arbitration provision and a "conformity to statute" clause, the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, and the McCarran-Ferguson Act.” See Article.
Dec 7, 2018 7:10 PM
Arizona Supreme Court: environmental damage to public land with religious, cultural, or emotional significance to the plaintiff is not special injury for public nuisance purposes
On November 29, the Arizona Supreme Court held that “environmental damage to public land with religious, cultural, or emotional significance to the plaintiff is not special injury for public nuisance purposes.” In this case, the Hopi Tribe had challenged the use of reclaimed water to make artificial snow on land sacred to them. See Decision.
Dec 6, 2018 9:41 PM
5th Circuit Holds Executory Contract Not Listed On Bankruptcy Schedules is Automatically Rejected Upon Expiration of 60-Day Period in Chapter 7 and Not Capable of Being Sold
“The Fifth Circuit recently held in RPD Holdings, L.L.C. v. Tech Pharmacy Services, that a patent license that was not specifically listed on the debtors' bankruptcy schedules was automatically deemed rejected where it was not assumed within 60 days of the cases' conversion from Chapter 11 to Chapter 7.” See Article.
Dec 6, 2018 9:39 PM
Federal Court finds California's SB 50 unconstitutional
On November 1, a federal court held that California’s law regulating the recording of conveyances of federal public lands in California (“SB 50”) is is unconstitutional because it violates the doctrine of intergovernmental immunity. See Decision.
Dec 6, 2018 9:38 PM
The Intercircuit Exclusionary Rule
Author, James Durling, discusses the existing choice-of-law approach to resolving intercircuit suppression disputes and argues that the choice-of-law approach conflicts with existing doctrine and choice-of-law theory. Durling also argues that “the current good-faith exception to the exclusionary rule most likely requires courts to account for another circuit's precedent in determining whether an officer reasonably relied upon a binding interpretation of the law.” See Article.
Dec 6, 2018 9:37 PM
7th Circuit Publicly Reprimands Lawyer Over Problems with Brief
“The U.S. Seventh Circuit Court of Appeals recently publicly reprimanded a Chicago lawyer for taking a brief and changing it in ways that went beyond its specific orders.” See Article.
Dec 6, 2018 9:36 PM
Third Circuit Remands W.R. Grace Decision Concerning Plan Channeling Injunction and Insurance Providers, Providing Additional Insights for Third Parties and Claimants
“In a recent Third Circuit decision arising out of the W.R. Grace bankruptcy proceedings, In re W.R. Grace & Co., the Third Circuit has provided additional guidance regarding statutory requirements that must be met in order to properly direct claims pursuant to a channeling injunction in accordance with Section 524(g), specifically with respect to insurance companies that have provided insurance to a debtor. The Court, in vacating the Bankruptcy Court's decision that certain asbestos claims brought against W.R. Grace's insurers may be enjoined, held that the Bankruptcy Court must consider applicable state law principles in connection with a determination as to whether claims fall within the permissible scope of an injunction under Section 524(g)(4).” See Article.
Dec 6, 2018 9:36 PM
Wisconsin legislature approves bill designed to limit incoming governor's power
On Wednesday, the Wisconsin legislature approved a series of bills designed to limit power of the new democratic governor. These measures are designed to reduce the power of the incoming governor and the executive branch in general. See Legislation.
Dec 6, 2018 9:35 PM
Department of Commerce to Establish New Export Controls on Emerging Technologies
“On Monday November 19, 2018, BIS published an invitation to comment on the criteria for establishing new export controls on what it calls "emerging and foundational technologies." The new controls are authorized under the Export Control Reform Act of 2018 and the Foreign Investment Risk Review Modernization Act of 2018 (known as FIRRMA).” See Article.
Dec 6, 2018 9:34 PM
Seeking District Court Assistance for An IPR Proceeding
“Although discovery is limited in IPR proceedings, there are alternatives to moving the PTAB to permit discovery. As demonstrated by Juniper Networks, a party can move a District Court to permit confidential information produced in an action to be used in an IPR proceeding. Parties also should consider negotiating the ability to use certain information in IPR proceedings when first negotiating the terms of a Protective Order in District Court litigation.” See Article.
Dec 5, 2018 9:43 PM
NY Bar Association Encourages NY to re-examine mandatory court fees for those convicted of crimes
On November 26, the New York Bar Association released a statement urging New York to re-examine mandatory court fees imposed on individuals convicted of criminal offenses and violations. The bar association noted that “[g]iven that the aims of the criminal justice system are in no way advanced by these mandatory surcharges and fees, and that the revenue does not enhance the court budget, the Legislature should simply abolish them for all those convicted of a crime or violation, or, at a minimum, restructure them to be imposed on a sliding scale consistent with an individual defendant’s ability to pay.” See Statement.
Dec 5, 2018 9:33 PM
District Court Clarifies Rules Related to the IRS Formal Document Requests for Documents Outside of the U.S.
“In Veg Corp. v. U.S., the district court refused to analyze compliance with IRS document requests in a vacuum, and, instead, considered the parties' understanding of the document requests.” See Article.
Dec 5, 2018 9:33 PM
U.S. Supreme Court vacates rejection of constitutional challenge to mandatory state bar fees
On December 3, the U.S. Supreme Court issued an opinion in the case of Fleck v. Wetch. Fleck filed suit challenging the constitutionality of required bar association fees for attorneys after discovering that his bar association made a large donation to oppose a ballot measure that Fleck had donated money in favor of. The 8th Circuit Court rejected Fleck’s constitutional challenges and upheld that mandatory dues. The U.S. Supreme court vacated this decision and remanded the case to be considered in light of Janus v. State. See Decision.
Dec 5, 2018 9:32 PM
IL Appellate Court Rules: New Landlord May Not Be Entitled to Unpaid Rent
“The Illinois Appellate Court ruled in favor of a commercial tenant after the new landlord attempted to collect accrued unpaid rent owed to the previous landlord, who had assigned the lease to the new landlord. In affirming the lower court's ruling, the court held that the new landlord did not have standing to sue for unpaid rent which accrued prior to the conveyance to the new landlord. Additionally, the court noted that, unlike debt obligations, rent accrual is a chose in action that is not assignable. The decision raises questions about the strength of assignment and non-waiver lease provisions as well as succeeding landlords' rights.” See Article.
Dec 5, 2018 9:31 PM
U.S. Supreme Court hears arguments in Helsinn Healthcare S.A. v. Teva Pharmaceuticals USA Inc.
On December 4, the U.S. Supreme Court heard arguments in the case of Helsinn Healthcare S.A. v. Teva Pharmaceuticals USA Inc. This case presents the issue of “whether, under the Leahy-Smith America Invents Act, an inventor’s sale of an invention to a third party that is obligated to keep the invention confidential qualifies as prior art for purposes of determining the patentability of the invention.” See Update.
Dec 5, 2018 9:28 PM
SEC Settles Two ICO Enforcement Actions
“The U.S. Securities and Exchange Commission (SEC) recently settled two initial coin offering (ICO) enforcement actions grounded on the sale of unregistered securities. The two settlements, one with CarrierEQ Inc. (or AirFox) and the other with Paragon Coin Inc., are the first time the SEC has imposed civil penalties on companies solely for offering digital tokens in an ICO.” See Article.
Dec 5, 2018 9:25 PM
California Appeals Court Upholds Legislative Workaround that Mooted CEQA Suit Targeting Development Project in Los Angeles
“In August 2018, the California Court of Appeal decided Citizens Coalition Los Angeles v. City of Los Angeles, commonly referred to as "Target II," which arose from a years-long challenge by citizen activist organizations to the development of a Super Target in Hollywood, California.” See Article.
Dec 5, 2018 9:24 PM
A resource has been added Michigan Law Review
Dec 5, 2018 2:16 AM
District Court Permits Recovery of Worldwide Damages for Direct Infringement in Decision Certified for Interlocutory Appeal
“In Power Integrations, Inc. v. Fairchild Semiconductor International, Inc., et al., Judge Stark ruled that the Supreme Court's holding in WesternGeco LLC v. ION Geophysical Corp., allowing for recovery of lost profits from foreign sales for infringement under 35 U.S.C. § 271(f)(2) can be applied to sales stemming from run-of-the-mill direct infringement under 35 U.S.C. § 271(a) and should not be limited to only those sales stemming from the specific form of indirect infringement at issue in WesternGeco.” See Article.
Dec 4, 2018 8:24 PM
NY Court of Appeals: non-citizen who shows potential deportation from charged crime is entitled to jury trial
On November 27, the New York Court of Appeals held that “a noncitizen defendant who demonstrates that a charged crime carries the potential penalty of deportation i.e. removal from the country is entitled to a jury trial under the Sixth Amendment.” See Decision.
Dec 4, 2018 8:23 PM
FDA’s Refreshed Approach to Device Safety Would Require Major Changes to 501(k) Program
“On November 26, 2018, FDA Commissioner Scott Gottlieb and device center director Jeff Shuren issued a statement outlining a plan to modernize the 510(k) pre-market review program to bolster medical device safety. The 510(k) program relies on a device being compared to a legally marketed predicate device; i.e., a similar device that was already determined to be legally marketable. Most devices come to market through the 510(k) pathway.” See Article.
Dec 4, 2018 8:22 PM
Illinois Appellate Court Rules that Class Settlement Objectors Engaged in Fraud on the Court
“Professional class settlement objectors can be a thorn-in-the-side for employers and class counsel attempting to settle class actions. Their M.O. is often the same - frivolously object, appeal its denial, settle out of court, and withdraw. It is already hard enough to obtain court approval of a class-based settlement without adding into the mix such tactics undertake by objectors. But the good news for employers is that courts are closely reviewing conduct of objectors to determine if sanctions are appropriate. That is exactly what happened in Clark v. Gannett Co.” See Article.
Dec 4, 2018 8:21 PM
US Securities and Exchange Commission Charges Digital Asset Trading Platform Founder for Operating Unregistered Exchange
“On November 8, 2018, the Securities and Exchange Commission has accused the founder of a digital asset trading platform of failing to register as a national securities exchange. Without admitting or denying the charges, the founder agreed to pay $300,000 in disgorgement and a $75,000 penalty, and to cease and desist from future violations of Section 5 of the Securities Exchange Act of 1934.” See Article.
Dec 4, 2018 8:14 PM
MA Supreme Court affirmed the suppression of evidence where police "froze" a house while obtaining a warrant
On November 7, the Massachusetts Supreme Court affirmed a motion for suppression where police officers "froze" a house while they obtained a warrant. The Court held that the evidence presented at the suppression hearing did not establish that the officers had ‘specific information supporting an objectively reasonable belief that evidence will indeed be removed or destroyed unless preventative measures are taken.’” See Decision.
Dec 4, 2018 8:13 PM