From: Appellate Law360 <news-alt@law360.com>

To: <

Subject: Up Next At High Court: Census Brawl Dominates Busy Week

Date: Mon, 22 Apr 2019 07:18:20 +0000

Key entities: Law360 Appellate; "Appellate" in red text; Date: Monday, April 22, 2019; "Follow Appellate Law360" link.

## TOP NEWS

## Up Next At High Court: Census Brawl Dominates Busy Week

The Trump administration's attempt to put a citizenship question on the census is the most high-profile case at the Supreme Court this week, but the justices will also tackle issues affecting government contractors and Title VII plaintiffs as it closes out the final argument session of the 2018 term.

Read full article >>

## Analysis

## Census Citizenship Question Case Likely To Turn On APA L

Attorneys anticipate that the question of whether Commerce Secretary Wilbur Ross violated the Administrative Procedure Act will take center stage during oral arguments at the U.S. Supreme Court on Tuesday, in a case challenging his decision to include a question about citizenship status on the 2020 census.

Read full article >>

## Analysis

## Supreme Court To Mull Title VII's Presuit Hurdles

The U.S. Supreme Court on Monday will hear a Texas county's challenge to a Fifth Circuit decision letting a worker pursue a religious discrimination claim she didn't make to the U.S. Equal Employment Opportunity Commission first, a case that could resolve a circuit split over what workers have to do before bringing federal discrimination suits.

Read full article >>

## Analysis

## High Court FOIA Case May Alter Labor Agency's Disclosures
L  L

The U.S. Supreme Court will hear arguments Monday about the standard for The U.S. Supreme Court will hear arguments Monday about the standard for invoking a key exception to the Freedom of Information Act in a case that could make it harder for employers with federal contracts to keep the reams of data they send to the Office of Federal Contract Compliance Programs under wraps, experts say.

Read full article >>

## Analysis

## 6th Circ. Ruling Raises Bar For Social Media Terrorism Suits

The Sixth Circuit's recent dismissal of a suit blaming Facebook, Twitter and YouTube for radicalizing the man who carried out the 2016 mass shooting at the Pulse nightclub in Florida makes clear that such Anti-Terrorism Act suits have a slim chance of success.

Read full article >>

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| Cooley |
| DLA Piper |
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## DC CIRCUIT

## UPS Can't Reverse Pa. Facility's Unionization, DC Circ. Says

The D.C. Circuit on Friday rejected UPS Ground Freight Inc.'s effort to overturn the unionization of employees at a Pennsylvania distribution facility, ruling that the International Brotherhood of Teamsters and the National Labor Relations Board had followed all the rules for certifying the union.

Decision attached I Read full article »

## DC Circ. Won't Nix OK Of $500M Award Against Kazakhstan

Kazakhstan was unable to convince the D.C. Circuit on Friday that a lower court had wrongly refused to consider evidence that a half-billion-dollar arbitration award against it, which was issued to two Moldovan oil and gas investors, had been tainted by fraud.

I document attached I Read full article »

## Wireless Cos. Urge DC Circ. To Toss FCC's Verizon Fee Ruling

Two wireless providers jointly urged the D.C. Circuit on Friday to reverse a Federal Communications Commission ruling that the roaming rates Verizon charged to local carriers are reasonable, contending the rates aim to quash smaller competitors.

1 document attached I Read full article »

## FEDERAL CIRCUIT

## Fed. Circ. Says Court Wrongly Tossed $7.5M IP Verdict

A Federal Circuit panel on Friday said a lower court wrongly threw out a $7.5 million jury verdict against Novozymes NS in a patent case over technology that helps with ethanol processing, deciding the district court erred when it found the patents were anticipated by an earlier invention.

Opinion attached I Read full article »

## Fed. Circ. Backs ITC In Roomba Co.'s Claim Construction Row

A split Federal Circuit panel on Friday sided with the U.S. International Trade Commission's finding that one of Roomba maker iRobot's patents had not been infringed, delivering a setback to the robot vacuum company months after it clinched an import ban against several of its rivals for ripping off another of its cleaning patents.

Opinion attached I Read full article »

## Full Fed. Circ. Won't Eye Reviving $19M Samsung IP Verdict

The Federal Circuit won't reconsider its decision to throw out a $19.2 million patent infringement verdict against Samsung, despite arguments from a nonpracticing entity that the panel wrongly substituted its own judgment for the jury's.

Order attached i Read full article »

## Fed. Circ. Affirms PTAB Ax Of Hologic Medical Device Patent

The Federal Circuit on Friday ruled a Hologic patent related to a treatment for abnormal menstrual bleeding was invalid because it would have been obvious, upholding a decision from the Patent Trial and Appeal Board.

Opinion attached I Read full article »

## Fed. Circ. Affirms ITC Ax Of Car Toll Patent Claims

The Federal Circuit on Friday invalidated parts of two patents covering technology used in electronic toll systems, upholding the U.S. International Trade Commission's decision in an infringement case Neology Inc. brought against rival companies.

Dechert
Divine & Estes
Dressman Benzinger
Duane Morris
Earthjustice
Edelson PC
Epstein Becker Green
Evans & Dixon
Faegre Baker
Fenwick & West
Fisch Sigler
Fisher Phillips
Fletcher Heald
Freeborn & Peters
Freshfields Bruckhaus
Fried Frank
Frost Brown Todd
Gibson Dunn
Goodwin
Grant & Eisenhofer
Greenberg Traurig
Hart McLaughlin
Hirschfeld Kraemer
Hogan Lovells
Holland & Knight
Horn Aylward
Hunter Smith
Hunton Andrews Kurth
Jackson Murdo
Jones Day
Keefer Wood
King & Spalding
Kirkland & Ellis
Kobre & Kim
Kutak Rock
Latham & Watkins
Law Offices of Stephan C. Volker
Leonard Carder
Lewis Brisbois
Littler Mendelson
Logan Logan & Watson
Lucas Magazine
Manatt Phelps
Markowitz & Richman
Mayer Brown
Morgan Brown & Joy
Morgan Lewis
Morrison & Foerster
Munger Tolles
Nabors Giblin

Norris & Keplinger

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## Opinion attached I Read full article »

## Fed. Circ. Won't Revive Server Patent Axed By PTAB

The Federal Circuit on Friday upheld the Patent Trial and Appeal Board's decision to invalidate claims from a Rosetta-Wireless Corp. network server patent challenged by Apple and Samsung, and agreed that the data solutions company can't amend its patent.

Opinion attached I Read full article 0

## SECOND CIRCUIT

## 2nd Circ. Kills $5M Deal Award Against Brazilian Reinsurer

The Second Circuit has declined to enforce a $5 million settlement award against reinsurer IRB Brasil Resseguros SA, finding that it was not a party to the agreement between insurer National Indemnity Co. and steelmaker Companhia Siderurgica Nacional.

1 document attached I Read full article »

## 2nd Circ. Won't Revive Ex-Mt. Sinai Worker's Race Bias Suit

The Second Circuit on Friday refused to revive a fired worker's race bias suit against Mount Sinai Health System, saying she'd made a "glaringly disproportionate" number of errors while on the job.

1 document attached I Read full article »

## Madoff Trustee Fights Bid To Pause Foreign Clawback Ruling

The trustee for Bernie Madoffs fraudulent investment firm has asked the Second Circuit not to stay its decision that he can claw back billions in Ponzi scheme proceeds transferred between foreign parties, saying defendants' planned U.S. Supreme Court appeal is unlikely to succeed.

1 document attached I Read full article »

## THIRD CIRCUIT

## 3rd Circ. Says Immigration Board's Examination Fell Short

The Third Circuit Friday revived a bid from an Indonesian national to avoid deportation, finding that the Board of Immigration Appeals failed to mention many pieces of compelling evidence he presented and that some of those it did mention contradicted its findings.

Opinion attached I Read full article )>

## Comcast Keeps Installer Antitrust Suit Win At 3rd Circ.

The Third Circuit affirmed a defeat for two Pennsylvania cable installers that accused Comcast of anti-competitive tactics that drove them out of business, reasoning Friday that the telecommunications giant wasn't their only potential business in the region.

Opinion attached I Read full article »

## NJ Urges 3rd Circ. To Stop PennEast Pipeline Condemnations

New Jersey on Thursday urged the Third Circuit to overturn a lower court's decision allowing the PennEast Pipeline Co. to file condemnation lawsuits against the state for land the company wants for a $1 billion natural gas pipeline project.

Brief attached ! Read full article 0

## FOURTH CIRCUIT

4th Circ. Trims Sanctions In Fired CarMax Worker's Arbitration

Norton Rose Fulbright
Oliver Price & Rhodes
Orrick Herrington
Panza Maurer & Maynard
Paul Hastings
Paul Weiss
Pepper Hamilton
Perkins Coie
Petti & Briones
Pierce Bainbridge
Priddy Cutler
Quinn Emanuel
Rathbun Cservenyak
Robbins Russell
Ropes & Gray
Sheppard Mullin
Shook Hardy
Sidley Austin
Simpson Logback
Sive Paget
Skadden
Smith Law Services
Tran Law Firm
Tucker Law Group
Venable LLP
Vorys Sater
Weil Gotshal
White & Case
Wilk Auslander
WilmerHale
Wilson Sonsini
Windels Marx
Wolf Haldenstein
Wollmuth Maher
Wright Close
Wyatt Tarrant
Young Conaway

Zebersky Payne

## COMPANIES

Amazon.com Inc.
American Bar Association
American Civil Liberties Union
American Museum of Natural
History 
Apple Inc.
Association of Corporate Counsel
BB&T Corp.
BNP Paribas
CVC Capital Partners
CalAtlantic Group Inc.

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A former CarMax employee who claims he was unfairly fired deserved some sanctions from a district court for arguing aspects of his arbitration award appeal that were already rejected, but he also raised a fresh argument that didn't warrant a penalty, the Fourth Circuit ruled.

Opinion attached I Read full article »

## FIFTH CIRCUIT

## Anti-Straight Bias Not Forbidden By Title VII: 5th Circ.

A Fifth Circuit panel said Friday that federal workplace discrimination law does not block employers from firing straight workers because of their sexuality, refusing to budge from its stance that Title VII of the Civil Rights Act does not cover sexual orientation.

Decision attached I Read full article »

## 5th Circ. Says Interstate Travel Axes Oil Workers' OT Suit

The Fifth Circuit has affirmed a federal judge's decision absolving Welltec Inc. from oil field workers' wage and hour claims, saying federal overtime pay requirements don't apply because the workers regularly drove across state lines.

Opinion attached I Read full article »

## Old Ruling Shouldn't Direct Texas Tribal Gaming, 5th Circ. Told

The Ysleta del Sur Pueblo argued Thursday that the Fifth Circuit shouldn't have relied on an error-filled 1994 ruling against it to decide that the Alabama-Coushatta Tribe of Texas can't offer bingo under state law, joining the chorus of voices urging the full court to take another look.

3 documents attached I Read full article »

## SIXTH CIRCUIT

## NCAA Referee Passes Death Threats Suit To 6th Circ.

An NCAA men's basketball referee on Friday turned to the Sixth Circuit after his suit accusing two Kentucky radio hosts of inciting death threats and negative reviews of his business was dismissed under First Amendment protections.

1 document attached I Read full article »

## SEVENTH CIRCUIT

## $2.8M Housing Fund Row Belongs In New Suit, 7th Circ. Says

The Seventh Circuit said an Illinois city and a housing company must start from scratch in a fight over $2.8 million in reserve funds held by the U.S. Department of Housing and Urban Development.

Complaint attached I Read full article »

## Uphold Arbitration Order In Biometric Case, Southwest Urges

Southwest Airlines employees who are accusing the company of unlawfully collecting their biometric data are trying and failing to sidestep the federal arbitration requirements preempting their suit, the airline told the Seventh Circuit on Thursday.

1 document attached I Read full article »

## NINTH CIRCUIT

## Enviros Say Trump Must Live With Keystone Rejection

Two environmental groups have told the Ninth Circuit that the federal government is wrongly attempting to dodge a ruling invalidating its permit for

California Rural Legal Assistance
Foundation Inc.
CarMax Business Services LLC
Citigroup Inc.
Comcast Corp.
Companhia Siderurgica Nacional
Edgeworth Economics LLC
Electronic Frontier Foundation
Essendant Inc.
Exxon Mobil Corp.
Facebook 
Florida Power & Light Co.
Food Marketing Institute
GVC Holdings PLC
Geico 
General Re Corp.
Google Inc.
HSBC Holdings PLC
Hologic Inc.
Intel Corp.
International Brotherhood of
Teamsters 
International Speedway
Corporation 
JAMS Inc.
JEA 
Johnson & Johnson
Kapsch TrafficCom AG
Kentucky Bar Association
Lowe's Companies Inc.
MGM Resorts International
MetLife Inc.
Minerva Surgical Inc.
National Collegiate Athletic
Association 
National Congress of American
Indians 
National Hispanic Medical
Association 
National Indemnity Co.
Natural Resources Defense
Council 
NeoPollard Interactive LLC
New York Immigration Coalition
New York University
Novozymes 
Orlando Utilities Commission
PricewaterhouseCoopers 
Purdue Pharma LP
QUALCOMM Inc.
Samsung Electronics Co. Ltd.
Southwest Airlines Co.

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the Keystone XL pipeline just because President Donald Trump signed a new permit last month.

1 document attached I Read full article »

Wells Fargo Battles Cert. In Reimbursement Fight At 9th Circ. Wells Fargo urged the Ninth Circuit on Friday to reverse a lower court's decision to certify a class of 2,000 home mortgage consultants and bankers who claim the bank didn't reimburse their expenses or pay commissions on time, arguing that the expenses were optional and commissions can't be determined classwide.

Read full article >>

## 9th Circ. Gives EPA 90 Days To Respond In Pesticide Case

The Ninth Circuit on Friday gave the U.S. Environmental Protection Agency 90 days to respond to objections filed by health and environmental groups over the agency's decision not to ban the pesticide chlorpyrifos.

Order attached I Read full article »

## ELEVENTH CIRCUIT

## 11th Circ. Tosses Underpayment Class Action Against Geico

The Eleventh Circuit on Friday threw out a class action accusing Geico of under-reimbursing health care providers for their services, holding that the lead plaintiff lacked standing to bring the suit in the first place.

Opinion attached I Read full article »

## NEW YORK

## NY Panel Greenlights Museum Of Natural History Expansion

A New York state appeals court on Thursday greenlighted the American Museum of Natural History's planned expansion into Theodore Roosevelt Park, finding that the museum has had a right to the disputed land since 1877.

Opinion attached I Read full article »

## FLORIDA

## Home Builder Gets Atty Fees In Property Maintenance Suit

Home builder CalAtlantic can recover attorney fees after residents at a Florida development dropped a lawsuit against it over property maintenance, with a state appeals court finding Friday that the suit fell within fees provisions in a declaration governing the community.

Opinion attached | Read full article >>

## Fla. Energy Choice Ballot Initiative Attacked From All Corners

A slew of major Florida interests that are rarely in harmony have lambasted a ballot initiative that purports to create a right to a competitive energy market but that opponents say will upend the energy market in the Sunshine State

8 documents attached I Read full article »

## Carlton Fields Nabs Fla. Appellate Pro From Akerman

Carlton Fields has brought aboard a Florida appellate and trial litigator and former St. Petersburg Times journalist as of counsel in its Miami and Tampa offices, the firm announced Thursday.

Read full article >>

## KANSAS

## Staples Inc.

State Farm
Taylor Bean & Whitaker Mortgage
Corp. 
The Nature Conservancy
The Wait Disney Co.
TransCanada Corporation
Twitter Inc.
Uber Technologies Inc.
UniCredit 
United Farm Workers
United Parcel Service Inc.
United Technologies Corp.
Verizon Communications Inc.
Wal-Mart Stores Inc.
Wells Fargo & Co.
Yale University
Yelp Inc.
YouTube Inc.
iRobot Corporation

## GOVERNMENT AGENCIES

Alabama-Coushatta Tribe of Texas
Chicago Department of Aviation
Delaware Court of Chancery
Department of Commerce
Equal Employment Opportunity
Commission 
European Commission
European Union
Federal Bureau of Investigation
Federal Communications
Commission 
Federal Energy Regulatory
Commission 
Federal Trade Commission
Florida State Senate
Florida Supreme Court
International Trade Commission
Montana Department of Revenue
National Indian Gaming
Commission 
National Labor Relations Board
Native Village of Noatak
New Jersey Department of
Environmental Protection
Office of Federal Contract
Compliance Programs
Securities and Exchange
Commission 
Texas Workforce Commission
U S Census Bureau
U.S. Department of Agriculture

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## Med Mal Suit Filed 1 Day Late Nixed By Kan. Supreme Court

The Kansas Supreme Court on Friday affirmed the dismissal of a suit accusing health care providers of negligently causing a patients death, saying the patient's estate failed to present evidence that an electronic filing issue caused the suit to be lodged one day after the statute of limitations expired.

Opinion attached I Read full article »

## KENTUCKY

## Ky. Court Upholds Atty Firing For Refusing Non-Solicit Deal

Kentucky's highest court has unanimously affirmed a lower court's ruling that a law firm did not wrongfully terminate an attorney after she refused to sign a non-solicitation agreement involving clients, as the deal did not violate state legal ethics rules.

Opinion attached I Read full article »

## MICHIGAN

## Live Nation Not Responsible For Concertgoer's Broken Ankle

Promoter Live Nation and Michigan International Speedway are off the hook from a lawsuit brought by a concertgoer who fell and broke her ankle in nearby woods while leaving a music festival, a Michigan appeals court held Thursday.

2 documents attached | Read full article >>

## MONTANA

## Exxon Tells Mont. Justices Dividend Deduction Cap Improper

The Montana Department of Revenue ignored its own guidance when the agency didn't permit Exxon Mobil Corp. to fully deduct dividend payments from subsidiaries that hold most of their business assets internationally, the oil giant told the state Supreme Court.

Brief attached I Read full article »

## EXPERT ANALYSIS

## In Virtual Teams For Mass Torts, The 'Law Team' Is Critical

A critical component of any virtual law team assembled for mass tort litigation is a dedicated "law team," which tackles the legal strategy and drafts the many necessary pleadings, motions and other submissions, say attorneys at Pepper Hamilton and Faegre.

Read full article >>

## LEGAL INDUSTRY

## Analysis

## BigLaw Forced Arbitration Expected To Survive Amid #MeToo

Even though social media pressure spurred on by Harvard law students has led several BigLaw firms to change course on mandatory arbitration, experts say arbitration has gotten a bad rap and so-called coercive contracts, in some form, will ultimately survive the #MeToo movement.

Read full article >>

## Analysis

## Looking To Go Green? Here's How It Can Work For Your Firm

As another Earth Day arrives, environmental consciousness is on the minds of many in the legal industry, and despite a number of challenges, going

- U.S. Department of Homeland
Security

- U.S. Department of Housing and
Urban Development

- U.S. Department of Justice

- U.S. Department of Labor

- U.S. Department of State

- U.S. Department of Transportation

- U.S. Environmental Protection
Agency

- U.S. House of Representatives

- U.S. Immigration and Customs
Enforcement

- U.S. Supreme Court

United States Court of Appeals for
the Third Circuit

Wisconsin Supreme Court

Ysleta del Sur Pueblo

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green is not only a possibility but an opportunity as well.

## Read full article » Read full article >>

## In Civil Rights Arena, Practice Groups A Rare But Potent Force

Although a rarity among firms, dedicated practice groups focused on civil rights cases can have a big impact, proponents say, taking cases solo attorneys and government regulators can't.

Read full article >>

## Analysis

## 5 Times Lawyers Settled During The Big Show

Apple and Qualcomm grabbed headlines when they decided to settle their differences before a San Diego federal jury could decide their multibilliondollar antitrust dispute. But they aren't the first high-profile litigants to think twice about having a jury decide their fate once they got to court.

Read full article >>

## Analysis  Analysis

## Gibson Dunn Ups The Ante On Gambling After High Court Win

Gibson Dunn, the law firm that led the fight to overturn a federal ban on sports betting, has launched a revamped practice group focused on sports betting and gambling, positioning itself to take advantage of the rapidly expanding, newly legal market.

Read full article >>

## Baker Donelson's Growth Recognized Its Roots, Ex-Chief Says

During Ben Adams' 16 years at the helm of Baker Donelson, the firm doubled its offices and attorneys, carrying out a growth strategy that the departing chairman told Law360 bet on the firm's roots to prepare for its future.

Read full article >>

## Q&A

## Q&A With 'Queen Of Torts' Sheila Birnbaum

Dechert LLP's Sheila Birnbaum, known as the "Queen of Torts," recently discussed with Law360 the changes in product liability laws she has seen over her long career, her proudest achievement as a lawyer and the challenges of representing Purdue Pharma in the multidistrict litigation over the opioid crisis.

Read full article >>

## More Women Taking Reins Among Tech Giants' Legal Chiefs

Women are increasingly heading up the legal departments of the largest companies in California's Silicon Valley as well as the corporations on the S&P 100, though men continue to hold the bulk of those positions, a biannual report by Fenwick & West LLP reveals.

Read full article >>

## Most 2016 Law Grads Who Took The Bar Passed, ABA Says

About 88.6% of 2016 law school graduates who took the bar exam within two years of completing school passed the test, the American Bar Association said Friday, noting that the class of 2016's two-year success rate is about the same as that of 2015 graduates.

Read full article >>

## GC Cheat Sheet: The Hottest Corporate News Of The Week

Google has been accused in a derivative suit of hiding workplace harassment, a Duane Morris partner said law firms are dropping the ball in addressing misconduct and employers are seeking to fortify Trump administration regulations against court attacks. These are some of the stories in legal news you may have missed in the past week.

Read full article >>

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## In Case You Missed It: Hottest Firms And Stories On Law360

For those who missed out, here's a look back at the law firms, stories and expert analyses that generated the most buzz on Law360 last week.

Read full article >>

## Podcast 
Law360's Pro Say: Mueller Madness

After more than two years of speculation, Special Counsel Robert Mueller's report about Russian interference with the 2016 election has been released and there are plenty of legal revelations to unpack. So we'll do just that on this week's Pro Say podcast.

Read full article >>

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