WASHINGTON, D.C. - The U.S. Supreme Court should deny a petition for writ of certiorari filed by a retirement plan trustee because the trustee waived the right to assert a timeliness defense under Section 1113(1) of the Employee Retirement Income Security Act and because the 11th Circuit U.S. Court of Appeals did not err in finding that Section 1113(1) is subject to express waiver even though it is a statute of repose as opposed to a statute of limitations, the U.S. secretary of the Labor says in a May 21 response to the petition (Robert N. Preston, et al. v. Secretary, U.S. Department of Labor, No. 17-1328, U.S. Sup.).
WASHINGTON, D.C. - A summary affirmance upholding invalidity findings by the Patent Trial and Appeal Board that was issued the same day, and involves the same patent claims, collaterally estops a patent owner from asserting the patent "in any further proceedings," a divided Federal Circuit U.S. Court of Appeals ruled sua sponte on May 23 (XY LLC v. Trans Ova Genetics LC, Nos. 2016-2054, -2136, Fed. Cir.).
NEW YORK - A New York federal jury on May 22 found a former drug executive and former pharmacy executive guilty of executing a $9.7 million kickback scheme (United States v. Gary Tanner, et al., No. 17-61, S.D. N.Y.).
TRENTON, N.J. - A federal judge in New Jersey on May 22 bifurcated a trial to determine the amount of restoration costs companies who sold gasoline containing methyl tertiary butyl ether (MTBE) should pay to remediate groundwater, finding that a jury should determine the amount of future costs the companies should pay followed by a bench trial to determine past costs (New Jersey Department of Environmental Protection, et al. v. Amerada Hess Corp., et al., No. 15-6468, D. N.J., 2018 U.S. Dist. LEXIS 85514).
WASHINGTON, D.C. - The U.S. solicitor general on May 22 told the U.S. Supreme Court that it should rule whether there is "clear and convincing evidence" that the Food and Drug Administration rejected a stronger femur fracture warning for Fosamax and whether that action preempts warning claims made after the FDA's ruling (Merck Sharp & Dohme Corp. v. Doris Albrecht, et al., No. 17-290, U.S. Sup.).
NEW YORK - Concluding that the interactive space on President Donald J. Trump's Twitter account qualifies as a public forum, a New York federal judge on May 23 found that the president and a top aide violated the First Amendment to the U.S. Constitution by blocking Twitter users from the account based on opposing political views (Knight First Amendment Institute at Columbia University, et al. v. Donald J. Trump, et al., No. 1:17-cv-05205, S.D. N.Y.).
HARRISBURG, Pa. - A widow on May 18 asked the Pennsylvania Supreme Court to review whether her husband's settlement involving Federal Employers' Liability Act (FELA) nonmalignant pulmonary disease claims can bar her subsequent action alleging he contracted and died of lung cancer, after both the trial and intermediate appellate court concluded that it did (Margaret Jarrett, et al. v. Consolidated Rail Corp., No. 210 EAL 2018, Pa. Sup.).
WILMINGTON, Del. - A subcontractor who installed the windows in a man's home says in a May 18 motion for summary judgment filed in Delaware state court that there is no evidence that his work caused water intrusion that has prevented a man from selling his home (Gary Loh v. Muirfield Associates LLC, et al., No. N16C-09-234, Del. Super., New Castle Co.).
CENTRAL VALLEY, N.Y. - S&P Enterprises Inc., a McDonald's franchisee, has paid $8,829 in penalties to resolve child labor violations in 11 New Jersey fast food restaurants, the U.S. Department of Labor's Wage and Hour Division (WHD) announced May 18.
CHICAGO - Gillian Flynn, author of the bestselling novel "Gone Girl" and screenplay of the same name, won dismissal on May 21 of allegations that her work infringed a copyrighted screenplay titled "Out of the Blue" (Leslie Weller v. Gillian Flynn, et al., No. 17-8799, N.D. Ill., 2018 U.S. Dist. LEXIS 84591).
SEATTLE - A Washington federal judge on May 18 partially granted a plaintiff's motion to strike a 403(b) plan administrator's affirmative defenses in a putative class action lawsuit alleging breach of fiduciary duties under the Employee Retirement Income Security, but allowed the affirmative defense under ERISA's safe-harbor provision to stand (Jenny Johnson, et al. v. Providence Health & Services, et al., No. 17-1779, W.D. Wash., 2018 U.S. Dist. LEXIS 84108).
CHICAGO - Allegations by Becton, Dickinson and Co. that a competitor falsely advertised its medical sharps as the "safest in the world" fail as a matter of law, an Illinois federal judge ruled May 20 (Daniels Sharpsmart Inc. v. Becton, Dickinson and Co., No. 17-6940, N.D. Ill., 2018 U.S. Dist. LEXIS 84314).
WILMINGTON, Del. - U.S. Judge Richard G. Andrews of the District of Delaware on May 22 turned away a constitutional challenge to the covered business method (CBM) review procedure established in 2011 by the Leahy-Smith America Invents Act (AIA), 112 P.L. 29, 125 Stat. 284 (Dr. Lakshmi Arunachalam v. International Business Machines Corporation, No. 16-281, D. Del.).
PASADENA, Calif. - The Ninth Circuit U.S. Court of Appeals on May 21 affirmed a lower federal court's finding that insureds' bad faith, breach of contract and negligence claims arising from an alleged theft loss are time-barred (Dean Seymour, et al. v. State Farm General Insurance Company, No. 17-5529, 9th Cir., 2018 U.S. App. LEXIS 13166).
WASHINGTON, D.C. - U.S. Supreme Court review of a federal court's ruling that the Housing and Economic Recovery Act of 2008 (HERA) supersedes the statute of repose on certain state and federal securities laws is not necessary because the ruling is in line with similar rulings in every other federal circuit court to review the issue, the Federal Housing Finance Agency (FHFA) argues in a May 18 respondent's brief filed in the Supreme Court (David Findlay, et al. v. Federal Housing Finance Agency, No. 17-1300, and Nomura Securities International Inc. v. Federal Housing Finance Agency, No. 17-1302, U.S. Sup., 2018 U.S. S. Ct. Briefs LEXIS 1965).
TAMPA, Fla. - A federal judge in Florida on May 18 granted in part motions for partial summary judgment filed by a window and door manufacturer seeking recovery of $3 million it paid to resolve five defects lawsuits in Alabama state court, finding that its insurer, Liberty Mutual Fire Insurance Co., could not raise defenses of res judicata, contributory bad faith, comparative bad faith and mitigation (MI Windows & Doors LLC, et al. v. Liberty Mutual Fire Insurance Co., No. 14-cv-3139-T-23MAP, M.D. Fla., 2018 U.S. Dist. LEXIS 83918).
DENVER - A Colorado federal judge on May 18 signed off on an equal pay settlement between the Equal Employment Opportunity and the University of Denver under which the university will pay $2.66 million in damages to seven female professors and increase those same professors' salaries (Equal Employment Opportunity Commission v. University of Denver, No. 16-2471, D. Colo.).
URBANA, Ill. - An Illinois federal jury on May 18 returned a verdict for a rent-to-own retailer in a transgender discrimination suit brought by the Equal Employment Opportunity Commission on behalf of a former employee who alleged that she was fired after transitioning (U.S. Equal Employment Opportunity Commission v. Rent-A-Center East, Inc., No. 16-2222, C.D. Ill.).
SCRANTON, Pa. - A water exclusion in a homeowners insurance policy is unambiguous and precluded coverage for damages caused when sewage backed up into an insured's basement; as a result, an insurer did not act in bad faith in denying coverage, a federal judge in Pennsylvania ruled May 21 in granting the insurer's motion for summary judgment (Audrey Sank v. Allstate Insurance Co., No. 16-1620, M.D. Pa., 2018 U.S. Dist. LEXIS 84943).
PHILADELPHIA - An investor's unsuitability claim under Section 10(b) of the Securities Exchange Act of 1934 fails because the investor is unable to show that TD Ameritrade Inc. and two of its subsidiaries recommended or purchased securities for her that led to extensive losses on her investments, a federal judge in Pennsylvania ruled May 21 in granting a motion to dismiss (Marianne Antczak v. TD Ameritrade Clearing Inc., et al., No. 17-4947, E.D. Pa., 2018 U.S. Dist. LEXIS 84570).
NEW ORLEANS - The Fifth Circuit U.S. Court of Appeals on May 22 ruled that a Texas federal judge did not err in granting Viacom International Inc. summary judgment on its allegation that plans to name a restaurant "The Krusty Krab" would represent trademark infringement (Viacom International Inc. v. IJR Capital Investments LLC, No. 17-20334, 5th Cir., 2018 U.S. App. LEXIS 13331).
NEW YORK - A Second Circuit U.S. Court of Appeals panel on May 21 upheld a federal judge in New York's decision to sentence a man who pleaded guilty to fraudulently procuring $13,961 in unemployment insurance benefits from the New York Department of Labor while working as a correctional officer to six months in prison, holding that the judge sufficiently explained that the sentence was based on the brazen nature of the offense (United States v. Andrew Kessler, No. 17-2317-cr, 2nd Cir., 2018 U.S. App. LEXIS 13088).
PASADENA, Calif. - The Ninth Circuit U.S. Court of Appeals on May 21 found that a lower federal court erred in holding that an insurer has no duty to defend or indemnify Office Depot Inc. in an underlying qui tam lawsuit, reversing and remanding (Office Depot Inc. v. AIG Specialty Insurance Company, No. 17-55125, 9th Cir., 2018 U.S. App. LEXIS 13136).
DENVER - The 10th Circuit U.S. Court of Appeals on May 22 affirmed a lower federal court's finding that an insurer had no duty to defend against an underlying class action or the Colorado attorney general's investigation of a law firm insured because the underlying claims arose from billing practices, which are not professional services under the insurance policy (Evanston Insurance Company v. Law Office of Michael P. Medved, et al., No. 16-1464, 10th Cir., 2018 U.S. App. LEXIS 13270).
LOS ANGELES - A homeowner filed a class action complaint on May 17 against a mortgage loan company and financial services company for engaging in an illegal kickback scheme involving reinsurance payments arising out of force-placed hazard insurance policies (Kathleen Angel Eisenberg v. Ocwen Loan Servicing LLC, et al., No. 18-04157, C.D. Calif.).