Courts Litigation

(clockwise from top left) U.S. Federal Communications Commission, U.S. Securities and Exchange Commission, National Labor Relations Board, and U.S. Environmental Protection Agency.

Where Federal Agencies Find the Most—and Least—Respect in Circuit Courts

By Marcia Coyle |

A federal agency that's locked in a fight with a corporation over the interpretation of a statute might want to avoid the Ninth Circuit and head into the decidedly more "deferential" Sixth Circuit. That's according to the recent findings of a comprehensive study of the 1978 U.S. Supreme Court decision Chevron U.S.A. v. Natural Resources Defense Council.

Georgetown University Law Center professor David Cole.

ACLU Names Georgetown Law Prof David Cole as New Legal Director

By Tony Mauro |

Cole's career move poses recusal issues for his wife, Judge Nina Pillard of the U.S. Court of Appeals for the D.C. Circuit.

Complaint: United States v. Aetna Inc. and Humana Inc.

By ALM staff |

The U.S. Justice Department on Thursday sued to block the proposed $37 billion merger between Aetna Inc. and Humana Inc.

Complaint: United States v. Anthem Inc. and Cigna Corp.

By ALM staff |

The U.S. Justice Department on Thursday sued to block the proposed $54 billion merger between Anthem Inc. and Cigna Corp., two giants in the health insurance industry.

U.S. Department of Labor

DOL Overstepped Authority in Fiduciary Rule, U.S. Chamber Tells Judge

By Melanie Waddell |

The U.S. Department of Labor, in finalizing its fiduciary rule, "has sought to transform the financial services and insurance industries, stepping far beyond its authority" under the Employee Retirement Income Security Act and the IRS code that governs individual retirement accounts, the U.S. Chamber of Commerce said in its latest court papers in a case in Texas.

McDermott Will & Emery offices at 500 North Capitol street in Washington, D.C. June 11, 2015. Photo by Diego M. Radzinschi/THE NATIONAL LAW JOURNAL.

McDermott Hires Kaye Scholer Labor & Employment Leader, 3 Others


After nearly two decades at Kaye Scholer, longtime employment and civil rights attorney Kerry Scanlon has moved to McDermott Will & Emery to head the firm's U.S. labor and employment litigation practice—bringing three other Kaye Scholer attorneys with him.

U.S. Department of Labor

U.S. Labor Dept. Says Fiduciary Guidance Coming Soon

By Melanie Waddell |

The U.S. Department of Labor plans to "push out guidance fairly shortly" to address questions about compliance with Labor’s fiduciary rule, Timothy Hauser, chief operating officer of DOL's Employee Benefits Security Administration, said Monday.

Judge Kathleen O'Malley, U.S. Court of Appeals for the Federal Circuit

Why This En Banc Patent Ruling Is a Win for the Federal Circuit

By Scott Graham |

Monday's en banc decision on the on-sale bar suggests the Federal Circuit is ready to listen to cues from the U.S. Supreme Court and to follow one of its most patent-savvy jurists.

U.S. Department of Labor in Washington, D.C.

Texas Judge Refuses Labor Dept. Request for Time in 'Persuader Rule' Case

By C. Ryan Barber |

The U.S. Justice Department has until late August to decide whether to appeal a nationwide injunction blocking a new labor rule that requires greater disclosure of discussions between employers and lawyers who try to counter union-organizing campaigns. Before then, the government must respond to the complaint, a Texas federal judge ruled Thursday in rejecting a request for more time.

Scalia's chair and the bench were draped in black after his death on Feb. 13.

Supreme Court Trends in Class Actions after Scalia

By Steffen N. Johnson and Paul N. Harold |

The U.S. Supreme Court's 2015 term will of course most be remembered for the passing of Justice Antonin Scalia, whose untimely death promises to affect the court for years to come—and on everything from high-profile questions of constitutional law to how the court reads statutes and what the court decides. It appears that several decisions this term would have come out differently had Justice Scalia lived to see the end of June. In some areas, however, Justice Scalia's absence appears not to have altered the outcomes, even when the court was closely divided on critical issues.

U.S. Department of Justice.

U.S. Justice Dept. Wins Record Settlement for Merger-Reporting Violations

By C. Ryan Barber |

An activist investment firm has agreed to pay a record-setting $11 million penalty to settle charges connected to Halliburton Co.'s abandoned bid to acquire rival oilfield-services provider Baker Hughes Inc., the U.S. Justice Department said Tuesday.

SEC's First Whistleblower Office Leader Announces Departure as Awards Mount

By C. Ryan Barber |

Sean McKessy, the first leader of the U.S. Securities and Exchange Commission's whistleblower program, is stepping down this month, the agency said Friday. The SEC's whistleblower office, since its creation in 2011 under the Dodd-Frank Act, has doled out more than $85 million to 32 whistleblowers, who can receive between 10 and 30 percent of sanctions that exceed $1 million.

Adnan Syed enters Courthouse East in Baltimore prior to a hearing on Wednesday, Feb. 3, 2016.  After spending 16 years in prison, Syed, convicted of murder, who was at the center of the podcast

Adnan Syed’s Defense Team Grows, Adding Hogan Lovells

By Lizzy McLellan |

The defense team for Adnan Syed has brought on some Big Law assistance as it prepares for a new criminal trial, granted by the Baltimore City Circuit Court last week.

U.S. Department of Justice.

Feds Say No Determination Yet on 'Persuader Rule' Appeal

By C. Ryan Barber |

The U.S. Justice Department is weighing whether to appeal a Texas judge's decision this week to put a nationwide freeze on the Labor Department's "persuader" rule, a regulation designed to give workers more information about discussions between employers and the lawyers who help them resist union-organizing campaigns.

U.S. Supreme Court

U.S. Supreme Court Passes on Tribal Casino Labor Case

By C. Ryan Barber |

The U.S. Supreme Court declined on Monday to consider whether the National Labor Relations Board has authority over Native American enterprises on tribal land, refusing to wade into a debate that has divided federal appeals courts and carries implications for thousands of casino workers.

U.S. Supreme Court.

SCOTUS Asks Justice Department to Weigh In on Key Patent Cases

By Scott Graham |

The cases at issue test the first-sale doctrine of patent exhaustion and the regulatory framework for biologic drugs.

Tennessee Supreme Court building in Nashville, Tennessee.

Justices Asked to Protect Against Ineffective Lawyers in Parental Termination Cases

By Jamie Schuman |

Criminal defendants are guaranteed the effective assistance of counsel. A certiorari petition to the U.S. Supreme Court asks whether that protection should apply in termination of parental rights proceedings as well.

U.S. Securities and Exchange Commission building

SEC Awards Second-Largest Whistleblower Award

By C. Ryan Barber |

The U.S. Securities and Exchange Commission on Thursday awarded the second highest bounty in the history of the agency's whistleblower program, agreeing to pay a former company employee more than $17 million for tips that advanced an investigation.

U.S. Supreme Court building in Washington, D.C.

A 'Chaotic and Thrilling' Month at the Supreme Court

By Marcia Coyle |

How best to describe the month of June at the U.S. Supreme Court, when the justices—and their clerks—race toward the finish line? "Chaotic and thrilling," Mayer Brown's Brian Netter, who clerked for Justice Stephen Breyer in the October 2010 term, said. At least for the law clerks.

U.S. Securities and Exchange Commission building in Washington.

Morgan Stanley Settles SEC Data-Privacy Charges for $1M

By C. Ryan Barber |

Morgan Stanley Smith Barney LLC will pay $1 million to settle charges that it failed to adequately protect customer information, allowing an employee to take home confidential data that was later targeted in a cyberattack and offered for sale online.

Verdicts & Settlements

A summary of the week's notable cases.

Kraft brand parmesan cheese on the shelves of a Walgreens store in Washington, D.C. April 27, 2016.

Parmesan Suits Alleging Wood-Pulp Filler Consolidated in Chicago

By Amanda Bronstad |

A federal judicial panel has transferred more than 50 class actions to Chicago alleging that four brands including Kraft and Target are mislabeled "100% Grated Parmesan Cheese" because they contain fillers made from wood pulp.

Demonstrators outside the Supreme Court in 2015.

North Carolina Blue Cross Sues Feds for $130M in Health Care Payments

By C. Ryan Barber |

Blue Cross and Blue Shield of North Carolina on Thursday became the latest insurer to take the federal government to court over the Affordable Care Act, arguing that it is owed nearly $130 million under a program designed to limit the financial risks of entering new health care markets.

(left to right) Anne Brynn, Debra Levin and Barbara Grayson of Jenner & Block.

Litigation-Focused Jenner Seizes Wealth Management Opportunity

By Roy Strom |

When Jenner & Block leaders contemplated starting the private wealth practice the firm announced last week, one proponent of the idea may have helped sway them more than others: Lester Crown, the 90-year-old Chicagoan and patriarch of one of America’s wealthiest families.

Solicitor General Donald Verrilli Jr. (2011)

Chart: Donald Verrilli's Wins, Losses in the Big Cases

By Tony Mauro |

Donald Verrilli Jr. represented the United States in 38 Supreme Court arguments since becoming U.S. solicitor general in 2011. Here's a look at his wins and losses in some of the biggest cases.

The Everly Brothers, Don and Phil, perform on July 31, 1964.

CBS Wins Fight Over Rights to Play Oldies

By Amanda Bronstad |

CBS has amped up the fight over sound recordings made prior to 1972 with a rare win in California. A federal judge in the Central District of California granted summary judgment on Monday in a case brought by four recording companies asserting rights over 174 sample song recordings, including “All I Have To Do Is Dream” by the Everly Brothers and Mahalia Jackson’s “Go Tell It on the Mountain.”

Justices Take Dispute Over False Claim Act's Sealing Requirement

By Marcia Coyle |

The U.S. Supreme Court, stepping into legal fallout from Hurricane Katrina, agreed on Tuesday to hear State Farm Fire & Casualty's appeal that it did not fraudulently shift certain damages claims to the federal government for payment. The case, State Farm Fire & Casualty v. United States, ex rel. Rigsby, involves the False Claims Act, a regular source of high court litigation in recent years.

Bonus Compensation Clawbacks Are New Norm

By Marc Fagel, Monica Loseman and Scott Campbell |

Top executives are forced to give back money even when the SEC doesn't allege personal misconduct.

The SEC: Challenges, Clawbacks, and the Constitution

Litigators who focus on securities enforcement and appellate law take the pulse of the courts this week on significant trends involving the U.S. Securities and Exchange Commission.

U.S. Supreme Court building in Washington, D.C.

Cross-Listed Securities Cases Present Challenges

By Joseph A. Fonti and Cynthia Hanawalt |

Where a transaction clears could determine whether or not investors have a remedy under U.S. law.

U.S. Securities & Exchange Commission building in Washington, D.C.

SEC In-House Forum Is Constitutionally Uncertain

By Jason M. Halper, Robert M. Loeb, Kelsi Corkran and Marc R. Shapiro |

Federal trial courts, confronting challenges to the agency's administrative law judges, appear divided.

Verdicts & Settlements

A summary of the week's notable cases.

Trump Taj Mahal Casino in Atlantic City, NJ.

The Supreme Court Faces a Different Trump Contest

By Marcia Coyle |

The name "Trump" is on ballots, hotels, casinos and now a U.S. Supreme Court petition. The justices on Thursday are scheduled to take their first look at Unite Here Local 54 v. Trump Entertainment Resorts, a case that arose out of the bankruptcy of the Trump Taj Mahal Casino in Atlantic City.

Judges of the U.S. Court of Appeals for the D.C. Circuit.
Main: Merrick Garland.
(l-r) Top row: Janice Rogers Brown, Laurence Silberman, A. Raymond Randolph, and Brett Kavanaugh.
(l-r) Second row: Stephen Williams, Judith Rogers, Cornelia Pillard, and Douglas Ginsburg.
(l-r) Third row: Robert Wilkins, David Sentelle, Thomas Griffith, and Patricia Millett.
(l-r) Bottom row: David Tatel, Sri Srinivasan, Karen LeCraft Henderson, and Harry Edwards.

Ten Cases to Watch for This Summer From the D.C. Circuit

By Zoe Tillman |

Merrick Garland’s nomination to the U.S. Supreme Court in March catapulted the U.S. Court of Appeals for the D.C. Circuit into the national spotlight. Still, the business of the court pressed on. And many cases on the 2015-2016 docket were newsworthy in their own right. A look at 10 of the most significant cases argued this term that haven’t been decided yet.

Demonstrators outside the U.S. Supreme Court on the day of arguments in the immigration case <i>United States v. Texas</i>. April 18, 2016.

As the Supreme Court Weighs Immigration Plan, a Texas Judge’s Order Causes a Big Stir

By Marcia Coyle |

While the challenge to Obama administration’s plan to delay deportations of certain illegal immigrants awaits a decision in the U.S. Supreme Court, some immigration groups want the justices, however they decide, to keep the case from returning to the original district court judge.

United States Postal Service Headquarters Building in Washington, D.C.

Justices, Reviving Employee's Race Claim, Open Wider Window to Sue

By Tony Mauro |

The U.S. Supreme Court on Monday gave plaintiffs in workplace discrimination cases more time to file complaints against their employers. By a 7-1 vote, the court said the 45-day deadline for initiating a constructive-discharge claim can begin running from the day the employee resigns—not the day of the last discriminatory workplace incident. Business advocates criticized the decision, which could enable lawsuits filed years after alleged discriminatory acts occur.

Robert Mueller.

Obama's Justice Dept. Defends Bush DOJ in Post-9/11 Supreme Court Case

By Marcia Coyle |

The Obama administration is defending former U.S. Attorney General John Ashcroft and his FBI director Robert Mueller III in the U.S. Supreme Court over claims they are liable for their roles in the post-Sept. 11 roundup and detention of Muslim, Arab and South Asian men.

Paul Smith of Jenner & Block.

Did the Justices Send a Message to the EEOC in a Legal-Fee Case?

By Tony Mauro |

By ruling in favor of awarding legal fees to a company that the government accused of widespread sexual harassment, the U.S. Supreme Court may have been sending a broader message that the Equal Employment Opportunity Commission needs to clean up its act.

Jenner & Block's Washington, D.C. offices.

Justices Allow Attorney Fee Awards Without Victory on Merits

By Tony Mauro |

In a ruling that could mean more attorney fee awards for employers in workplace discrimination cases, the U.S. Supreme Court on Thursday said defendants don’t have to win on the merits to be counted as the “prevailing party.”

Sonia Sotomayor.

Sotomayor Pushed Mandatory Pro Bono. What Do You Think?

By ALM Staff |

Justice Sonia Sotomayor this week said she's in favor of "forced labor"—mandatory pro bono. Not a new concept, sure, but the justice's remarks generated considerable buzz. Tell us what you think. Good idea, or bad? How would it work? Join the conversation.

Demonstrators outside the U.S. Supreme Court on the day of arguments in the case <i>Zubik v. Burwell,</i> which challenges the Health and Human Services Contraception Mandate on behalf of religious nonprofit organizations.

Justices Issue Narrow Rulings on Path to Consensus

By Marcia Coyle |

The U.S. Supreme Court on Monday demonstrated that the "straight and narrow" may not be just the path to honest and moral behavior, but also a path to consensus on a bench struggling without a critical ninth vote.

Sister Loraine Marie Maguire, of Little Sisters of the Poor, (front, with glasses, at mic), addressing media outside the U.S. Supreme Court, on the day of arguments in the case Zubik v Burwell, which challenges the Health and Human Services Contraception Mandate on behalf of religious nonprofit organizations. March 23, 2016.

Justices Tell Lower Courts to Craft Compromise for Contraceptive Insurance

By Tony Mauro and Marcia Coyle |

The U.S. Supreme Court, ruling Monday on the contraceptive insurance requirement in the Affordable Care Act, returned the dispute to lower courts without weighing whether the mandate violates First Amendment rights of religious nonprofit employers.

Verdicts & Settlements

A summary of the week's notable cases.

Andrew Ceresney, director of the SEC’s Division of Enforcement.

SEC Awards Whistleblower $3.5 Million for Help in Ongoing Investigation

By C. Ryan Barber |

Before being awarded more than $3.5 million on Friday, the latest tipster to benefit from the Securities and Exchange Commission’s whistleblower program was rebuffed. But SEC enforcement staff later provided additional information underscoring the whistleblower’s significance to the investigation, according to the final order.

U.S. Securities and Exchange Commission building in Washington, D.C.

SEC In-House Judges are Unconstitutional, Barred Investment Adviser Tells D.C. Circuit

By Zoe Tillman |

The U.S. Securities and Exchange Commission’s in-house law judges are unconstitutionally hired for their jobs, a lawyer for an investment adviser, barred for life by the agency, told a federal appeals court in Washington on Friday.

Garland's Record: Agencies Win, Prosecutors Win and Judges Agree With Him (Mostly)

By Zoe Tillman |

A common refrain since Merrick Garland’s nomination to the U.S. Supreme Court is that he’s a “moderate” judge—not a firebrand activist, but certainly someone who would shift the high court’s ideological balance to the left. So what does it mean to be a “moderate” judge?

Retired union steamfitter Mike Reynders of Fort Atkinson, right, holds a sign in support of Wisconsin Gov. Scott Walker while listening to Lt. Gov. Rebecca Kleefisch speak Tuesday, April 10, 2012, in Dane, Wis. Walker and Kleefisch spent the day campaigning around the state two months away from the June 5 recall election.

Denied Pro Bono Help, Wisconsin Prosecutors Appeal Campaign Finance Ruling

By Marcia Coyle |

The petition’s backdrop is the special-prosecutor investigation into whether Wisconsin Gov. Scott Walker illegally coordinated fundraising and spending with outside groups on his behalf in the 2011-2012 recall campaigns.

Tom Girardi and his wife Erika Jayne during the episode “Horsing Around

Plaintiffs Lawyer Tom Girardi's Finances Pried Open in Misappropriation Suit

By Amanda Bronstad |

Plaintiffs attorney Thomas Girardi has been ordered to turn over documents detailing his personal net worth and the finances of his Los Angeles law firm, Girardi Keese, as part of a lawsuit alleging he misappropriated more than $12.5 million from a settlement over hormone replacement therapy drug Prempro.

Vaping Company Sues FDA Over New Regulations

By Zoe Tillman |

Covington & Burling, representing Nicopure Labs LLC, on Tuesday sued the U.S. Food and Drug Administration over new vaping rules, which were published today. The company, which sells the devices and manufactures the "e-liquid" used, filed a lawsuit Tuesday in Washington claiming the agency overstepped its authority.

U.S. Securities and Exchange Commission building in Washington, D.C.

SEC: Congress Has Tied Our Hands on Spending Disclosure Rule

By C. Ryan Barber |

In May 2014, Stephen Silberstein asked the SEC for a rule requiring corporations to disclose their political spending. Monday, the SEC said it cannot grant or deny his request for a rule because Congress has tied the agency’s hands.

Judge Terrence Boyle.

North Carolina Turns to Prominent Conservative Lawyer to Defend 'Bathroom' Law

By Zoe Tillman |

A go-to lawyer for Republican governors facing scandal and controversy, solo practitioner Karl "Butch" Bowers Jr., will represent North Carolina Gov. Patrick McCrory as he defends a state law that requires transgender state employees to use the bathroom that corresponds to the gender on their birth certificates.

Consumer Financial Protection Bureau director Richard Cordray, left, and New Mexico Attorney General Hector Balderas, right, sit together at the Albuquerque Convention Center in Albuquerque, N.M., on Thursday, May 5, 2016, before the start of a bureau meeting.

Who Wins in a World Without Forced Arbitration?

By C. Ryan Barber |

In the highly charged debate over arbitration, businesses and consumer groups have tussled over the question of who stands to gain from the Consumer Financial Protection Bureau's proposed ban on contract clauses that prevent class actions.

The Center for Auto Safety urged a California judge to unseal records in a case that accused Chrysler of concealing safety defects.

Big Business Wants Justices to Step Into Sealed Document Fight

By Marcia Coyle |

The business community is lining up behind a major automaker in a U.S. Supreme Court fight over the test for keeping sealed court documents sealed throughout litigation.

E. Barrett Prettyman Court House in Washington, D.C.

AP's Race and Ethnicity Editor Sues News Outlet for Alleged Discrimination

By Zoe Tillman |

Sonya Ross, the race and ethnicity editor at the Associated Press, filed a discrimination lawsuit Monday that accuses the news organization of marginalizing her and denying her opportunities for promotion because of her race, age and gender. Ross, a former White House reporter, claimed the AP retaliated against her after she complained about disparate treatment.

Verdicts & Settlements

A roundup of the week's notable cases.

With Energy Bankruptcies, Uncertainty is Certain

By Mark D. Sherrill |

The current crop of exploration and production company bankruptcies may have an eventual effect on the energy industry, but it could take years for the result to come into focus.

From left to right, Georgetown University Law center dean William Treanor, Solicitor General Donald Verrilli Jr., Supreme Court Justice Ruth Bader Ginsburg, Deputy Solicitor General Michael Dreeben, and Justice Elena Kagan. April 27, 2016.

Justices Praise DOJ's Dreeben After Contentious 100th Argument

By Tony Mauro |

Three U.S. Supreme Court justices on Wednesday praised deputy U.S. solicitor general Michael Dreeben just hours after his 100th appearance before the court—a tough argument in which the court gave Dreeben an unusually hard time. "He's made these 100 arguments—fabulous—and he's remained sane," Justice Stephen Breyer said.

Bill Robinson.

Former ABA Leader Takes Aim at 'Persuader' Rule in House Hearing

By C. Ryan Barber |

In 2011, when he was president of the American Bar Association, Bill Robinson III sent a letter to the Labor Department expressing "serious concerns" that a proposal to require more disclosure of companies' union-busting activities would compromise attorney-client confidentiality. On Wednesday, he appeared before a congressional panel to say that his objections to department's "persuader rule" still stand.

Former Virginia Gov. Bob McDonnell speaks outside the Supreme Court in Washington, Wednesday, April 27, 2016, after the Supreme Court heard oral arguments on the corruption case of McDonnell.

The Hypotheticals That Could Doom the Case Against Bob McDonnell

By Tony Mauro |

Deputy U.S. Solicitor General Michael Dreeben argued his 100th case on Wednesday, and it may have been his toughest—in part because of the wild array of hypotheticals the justices threw at him and his adversary.

Lisa Blatt.

Lisa Blatt's End-Run Play Puts Redskins Case Before Supreme Court

By Tony Mauro |

Appellate advocates usually wait for a federal appeals court to rule before they take a case to the U.S. Supreme Court. Lisa Blatt, head of Arnold & Porter's appellate and Supreme Court practice, leapfrogged over the U.S. Court of Appeals for the Fourth Circuit to get her petition in the Washington Redskins trademark dispute before the justices. Blatt's unusual strategy invoked a rarely used rule of the Supreme Court that allows parties to seek certiorari before an appeals court has ruled.

Laurie Higginbotham, of Whitehurst, Harkness, Brees, Cheng, Alsaffar & Higginbotham, during a press conference held at the National Press Club in Washington, D.C.  October 13, 2015.

Military Gender-Bias Case Put on Hold at Supreme Court

By Tony Mauro |

A case before the U.S. Supreme Court that posed a novel claim of gender discrimination in the military has been sidelined after the government initiated talks to settle the case. The petition challenged an aspect of the "Feres doctrine," an exception to the Federal Tort Claims Act that shields the U.S. government from being held liable for injuries suffered by military personnel for activities "incident to service."

Retired Supreme Court Justice John Paul Stevens (2014)

Stevens Recounts His Clashes With Scalia

By Tony Mauro |

Retired U.S. Supreme Court Justice John Paul Stevens on Monday reminisced about the "legendary" collegiality of his late colleague Antonin Scalia, while also recounting their sharp disagreements over the right to bear arms and other issues.

Chart: The 2015 Top Verdicts

The biggest awards of the year, plus the top verdict categories.

Robert Plant.

Led Zeppelin 'Stairway' Trial Likely to Proceed Without Drug, Alcohol Evidence

By Amanda Bronstad |

A federal judge in Los Angeles on Monday tentatively excluded evidence of drug and alcohol use from the May 10 copyright infringement trial over Led Zeppelin’s iconic “Stairway to Heaven.” At the same time, a lawyer suing the band asked that members Robert Plant and Jimmy Page clarify whether they plan to show up in court.