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The Appellate Strategist

Insights on appellate issues, trial consultations, and evaluating appeals

Category Archives: Federal

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California Confirms Preemption by FAA Over State Rule Barring Employee Waiver – Mostly

Posted in California, Federal
In Sonic-Calabasas A, Inc. v. Moreno (Sonic II), the California Supreme Court addressed an employee’s waiver of access to an administrative hearing, in this case a Berman hearing, in an arbitration agreement imposed as a condition of employment. The unanimous court concluded that a categorical rule prohibiting such waivers is preempted by the Federal Arbitration [&hellip… Continue Reading

Ninth Circuit re Stengel: Back to the (En) Banc

Posted in Federal
As we noted here, the Ninth Circuit Court of Appeals’ decision in Stengel v. Medtronic Inc. (676 F.3d 1159 (9th Cir. 2012)) left plaintiffs who sue the manufacturers of pre-market approved devices precious little in the way of potential state-law claims that are not expressly preempted by Riegel or impliedly preempted by Buckman. In fact, the [&hellip… Continue Reading

Attorneys Fees Applications and Appeals: The Timing Effect

Posted in Federal
Federal Rule of Civil Procedure 54(a) allows a claim for attorney’s fees and other nontaxable costs to be made by motion in most cases. Such fees may be recoverable by statute or pursuant to a contract between the parties. In some cases, attorney’s fees are recoverable as a sanction for litigation misconduct. Consequently, fee motions [&hellip… Continue Reading

Sacred Exclusivity: The Ninth Circuit Steers (Well) Clear of the FDA

Posted in Federal
The Supreme Court’s opinion in Buckman Co. v. Plaintiffs’ Legal Committee, 531 U.S. 341, 349-50 (2001), recognizes that any attempt by a plaintiff to enforce the FDCA is preempted by federal law, because Congress entrusted all such enforcement efforts to the sole discretion of the FDA.  In 2010, the Ninth Circuit’s PhotoMedex opinion held that [&hellip… Continue Reading

Why Judicial Vacancies Matter, Part II

Posted in Federal
Last week, two long-standing judicial emergencies in the district courts ended with the Senate’s confirmation of Gregg Jeffrey Costa as a District Court Judge for the Southern District of Texas and David Campos Guaderrama as a District Court Judge for the Western District of Texas. Judge Costa’s seat had been vacant since June 11, 2010, and [&hellip… Continue Reading

How Well Are Senate Confirmation Hearings Working?

Posted in Constitutional Law, Federal, Supreme Court Vacancy
Earlier this week, we discussed “advice and consent.”  Can Senators legitimately ask a Supreme Court nominee about a hot button issue and expect a direct answer? Do Senators have the right to vote up or down on a particular nominee for purely political reasons? Now we turn from the question of what the confirmation process should [&hellip… Continue Reading

Supreme Court: Removal-for-Good-Cause Provision in Sarbanes-Oxley Act Unconstitutional Restraint on President’s Authority

Posted in Federal
The Sarbanes-Oxley Act of 2002 created the Public Company Accounting Oversight Board, an agency with broad authority to regulate accounting firms that perform audits of publicly-traded corporations. The Board is formally placed under the Security and Exchange Commission, but the Commission may only remove Board members pursuant to a stringent good cause requirement. In Free [&hellip… Continue Reading

So What Does “Advice and Consent” Mean Anyway?

Posted in Constitutional Law, Federal, Supreme Court Vacancy
Supreme Court confirmation hearings have come in for a lot of criticism in recent years. They’ve been called a “Kabuki Dance” and a process which has “take[n] on an air of vacuity and farce.” Amid all the discussion of whether or not nominees have become more evasive recently – a subject we’ll address later in the [&hellip… Continue Reading

High Court Sides With Hastings in Religious Student Organization Debate

Posted in Constitutional Law, Federal
Yesterday, a divided U.S. Supreme Court affirmed the University of California, Hastings College of the Law’s right to condition official recognition of a Christian student group on the organization’s agreement to open eligibility for membership and leadership to all students – including homosexual students. In an opinion on behalf of a narrow 5-4 majority, Justice Ginsburg concluded [&hellip… Continue Reading

Two More Circuits Affirm Antitrust Dismissals Against Government Entities

Posted in Antitrust, Federal
It’s been a busy summer at the Circuits for decisions applying the antitrust state action immunity. First up, as we reported three weeks ago, was the Ninth Circuit’s affirmance of the dismissal in Shames v. California Travel and Tourism Commission, [pdf] in which the plaintiffs alleged the California Travel and Tourism Commission had colluded with the rental [&hellip… Continue Reading

Eleventh Circuit Expands Type of Evidence Used to Establish Amount In Controversy for Removal

Posted in Federal
The Eleventh Circuit, in Pretka v. Kolter City Plaza II, Inc. recently reexamined and rejected as dicta broad statements in Lowery v. Alabama Power Co., 483 F.3d 1184 (11th Cir. 2007), that limit the type of evidence used to establish the amount in controversy for removal. The plaintiffs in Pretka, buyers of units in a new [&hellip… Continue Reading

Does It Matter If Your Antitrust Judge Has Been Trained in Economics?

Posted in Antitrust, Federal
It’s no secret to those of us who’ve been defending antitrust cases for a number of years that economic expert witnesses are a more important part of the defense team than ever before. Triers of fact often must evaluate complex economic analyses of the competitive effect of sophisticated business strategies. According to Judge Richard Posner of the [&hellip… Continue Reading

Ninth Circuit Tosses Antitrust Claim Against State Agency Accused of Price-Fixing

Posted in Antitrust, Federal
Can a government agency conspire to fix prices? When it comes to the California Travel and Tourism Commission, the Ninth Circuit says the answer is "no." Shames v. California Travel and Tourism Commission [pdf]. The CTTC consists of a dozen commissioners appointed by the Governor, and two dozen selected by the tourism industry. In 2006, the passenger rental [&hellip… Continue Reading

ALI Resumes Work on Restatement (Third) of Torts: Economic Torts

Posted in Federal
During this morning’s special session at the American Law Institute’s Annual Meeting, Director Lance Liebman has announced that work is resuming on the Restatement (Third) of Torts: Economic Torts and Related Wrongs with Reporter Professor Ward Farnsworth.  A few more details about the Institute’s new project on insurance law have also become available.  Principles of [&hellip… Continue Reading

Former Solicitor General Waxman Endorses Kagan Nomination

Posted in Federal, Supreme Court Vacancy
Last night, former Solicitor General Seth Waxman addressed the American Law Institute. He strongly endorsed the nomination of current Solicitor General Elena Kagan to the Supreme Court, stating that "It is and should be a foregone conclusion that she will be confirmed." Waxman told the members of having worked with Kagan in the weeks leading up to [&hellip… Continue Reading

Justice Stephen Breyer Addresses the American Law Institute

Posted in Federal
Justice Stephen Breyer of the Supreme Court spoke this afternoon before a standing-room-only crowd at the Annual Meeting of the ALI. At Justice Breyer’s suggestion, rather than making an address, he responded to questions from several ALI members. ALI Director Lance Liebman asked how the Court’s role as the final arbiter of so many crucial questions [&hellip… Continue Reading

Solicitor General Elena Kagan Nominated for Supreme Court

Posted in Federal, Supreme Court Vacancy
This morning, President Obama announced that Solicitor General Elena Kagan is his nominee to succeed retiring Justice John Paul Stevens on the Supreme Court. The President had this to say about his nominee: Elena is widely regarded as one of the nation’s foremost legal minds. She’s an acclaimed legal scholar with a rich understanding of constitutional law. She is [&hellip… Continue Reading

Supreme Court Short List Down to One?

Posted in Federal, Supreme Court Vacancy
CBS News is reporting that President Obama will announce his nominee to replace retiring Supreme Court Justice John Paul Stevens on Monday morning. In the weeks since Justice Stevens announced his retirement, the Appellate Strategist has profiled each of the short list candidates: Solicitor General Elena Kagan Judge Diane Wood of the U.S. Circuit Court of [&hellip… Continue Reading

Supreme Court Short List Profiles: Judge Merrick Garland of the D.C. Circuit

Posted in Federal, Supreme Court Vacancy
Our series of profiles of potential nominees to replace retiring Supreme Court Justice John Paul Stevens continues with Judge Merrick Garland of the U.S. Court of Appeals for the District of Columbia Circuit. Judge Garland’s credentials are impeccable.  An honors graduate of Harvard University and Harvard Law School, he clerked for Judge Henry Friendly of [&hellip… Continue Reading

Supreme Court Short List Profiles: Judge Diane Wood of the 7th Circuit Court of Appeals

Posted in Federal, Supreme Court Vacancy
In the days following Justice John Paul Stevens’ announcement in April that he would step down from the Supreme Court, the speculative “short list” of candidates to replace him steadily lengthened. But one name that was mentioned almost immediately was Judge Diane Wood of the U.S. Court of Appeals for the Seventh Circuit. At age 59, [&hellip… Continue Reading

Supreme Court Short List Profiles: Janet Napolitano, Secretary of Homeland Security

Posted in Federal, Supreme Court Vacancy
Our series of profiles of possible Supreme Court nominees to replace the retiring Justice John Paul Stevens continues with the Secretary of Homeland Security, Janet Napolitano. After finishing at the top of her class at Santa Clara University — earning a Truman Scholarship and graduating summa cum laude with Phi Beta Kappa honors — Napolitano [&hellip… Continue Reading