The summer doldrums have slowed but not halted the flow of rulings by the U.S. Courts of Appeals, but you can’t say the same about the highest courts in Delaware, New York, and Texas.
Despite the more languid pace of federal-court opinions, we have a cornucopia of them–28 in all. I’m happy to say the backlog is a result of having quite a lot to do in my day job at Susman Godfrey.
The state-court pipelines have paused their deliveries since July 31 (in Delaware), July 17 (Texas), and June 29 (New York)–yielding just one opinion (on a rare instance of declining to order a shareholder meeting to elect directors).
Below the jump you’ll find the latest roundup of blurbs-with-links.
Commercial Appeals Roundup
Federal claim against Wells Fargo for opening fake customer accounts mooted need for survey of state law differences for purposes of settlement class certification. https://cdn.ca9.uscourts.gov/datastore/opinions/2020/07/20/18-16213.pdf
Bar order didn’t meet necessity test. http://media.ca11.uscourts.gov/opinions/pub/files/201911409.pdf
Tax services firm failed to define trade secrets, couldn’t enforce overbroad NDA against former subcontractor, managing director. http://media.ca1.uscourts.gov/pdf.opinions/19-1104P-01A.pdf
Choice of tribal law in payday-loan contracts waived future statutory claims in arbitration, violated public policy. https://ca4.uscourts.gov/opinions/191434.P.pdf
Clause in arbitration contract couldn’t bar court from ruling on whether choice of tribal law violated public policy as advance waiver of statutory claims. https://ca4.uscourts.gov/opinions/192108.P.pdf
Bar on copyright of “useful article” might not apply to model of human skeleton. https://ca10.uscourts.gov/opinions/18/18-1300.pdf
UT’s sovereign immunity didn’t require dismissal of its licensee’s patent-infringement case against Baylor. http://cafc.uscourts.gov/sites/default/files/opinions-orders/19-1424.OPINION.7-24-2020_1624539.pdf
Clean Air Act plaintiffs had to trace harm to chemical/refinery complex’s emissions to have Article III standing. http://ca5.uscourts.gov/opinions/pub/17/17-20545-CV0.pdf
Device that stores list of numbers and uses it to autodial calls violates Telephone Consumer Protection Act. https://opn.ca6.uscourts.gov/opinions.pdf/20a0233p-06.pdf
Arbitration panel’s phase II award didn’t conflict with or supersede its phase I award. http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2020/D07-28/C:19-2336:J:Wood:aut:T:fnOp:N:2553499:S:0
Case study gave enough detail about unnamed “doctor” who lost a leg on vacation to Mexico that jury can decide his defamation claim. https://ecf.ca8.uscourts.gov/opndir/20/07/191290P.pdf
Company’s claim of “ownership interest” in documents possessed by company officer didn’t support right to appeal order compelling production. https://cdn.ca9.uscourts.gov/datastore/opinions/2020/07/27/19-10187.pdf
“General Counsel” of “firm” that a “company” no longer wholly owned could accept service of grand jury subpoena for company. https://cdn.ca9.uscourts.gov/datastore/opinions/2020/07/27/19-10187.pdf
Contract giving up rights to trademark didn’t bar suit to cancel trademark. http://cafc.uscourts.gov/sites/default/files/opinions-orders/19-1567.OPINION.7-27-2020_1625228.pdf
IPR that attacked gaming system patent as obvious didn’t violate APA by relying on points not raised by patent owner.
Securities fraud claim that alleges failure to disclose landlord’s loan to big tenant met scienter test. https://ca2.uscourts.gov/decisions/isysquery/8c262d88-0594-4edd-a2c2-f028c9d372d4/1/doc/19-1095_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/8c262d88-0594-4edd-a2c2-f028c9d372d4/1/hilite/
Paint maker that sued county to stop it from hiring outside counsel on contingent-fee basis failed to present live case or controversy. https://www2.ca3.uscourts.gov/opinarch/193561p.pdf
Direct buyers of Suboxone met Rule 23(b)(3) standard for class treatment of Sherman Act section 2 claim for suppression of generic competition. https://www2.ca3.uscourts.gov/opinarch/193640p.pdf
Copyright owner’s failure to register the work before first act of infringement barred statutory damages. https://ca2.uscourts.gov/decisions/isysquery/39af0dc1-6937-4365-b6b9-4516df310560/2/doc/18-2955_18-2959_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/39af0dc1-6937-4365-b6b9-4516df310560/2/hilite/
Substantial truth of statements about pharmacist’s filling of many opioid prescriptions defeated defamation claims. https://ca4.uscourts.gov/opinions/182078.P.pdf
Forum choice clause barred court it chose from sending case to court it didn’t. http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2020/D08-03/C:19-2930:J:Ripple:aut:T:fnOp:N:2556930:S:0
Plaintiffs’ need for discovery didn’t prevent enforcement of deadline to move for class certification. https://cdn.ca9.uscourts.gov/datastore/opinions/2020/08/03/18-56188.pdf
Jury may decide issue of whether patent is essential to meeting industry standard. http://cafc.uscourts.gov/sites/default/files/opinions-orders/19-2215.OPINION.8-4-2020_1630479.pdf
Qualcomm’s brutal chip-licensing tactics didn’t violate Sherman Act. https://cdn.ca9.uscourts.gov/datastore/opinions/2020/08/11/19-16122.pdf
DMCA doesn’t require knowledge that removing copyright credit from photo will result in photo’s misuse by others. https://ca2.uscourts.gov/decisions/isysquery/ebabd3ff-20be-4e00-8cdd-3c6ba1ece4bb/5/doc/19-446_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/ebabd3ff-20be-4e00-8cdd-3c6ba1ece4bb/5/hilite/
Claims against state for imposing tough Ebola quarantine restrictions failed due to lack of clear constitutional requirements at the time. https://ca2.uscourts.gov/decisions/isysquery/ebabd3ff-20be-4e00-8cdd-3c6ba1ece4bb/3/doc/17-1558_complete_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/ebabd3ff-20be-4e00-8cdd-3c6ba1ece4bb/3/hilite/
Contract providing both that costs of dispute “shall be borne” by parties and that prevailing party “shall be reimbursed” its costs meant prevailing party would bear its costs only until it prevailed. https://opn.ca6.uscourts.gov/opinions.pdf/20a0260p-06.pdf
Software license allowed licensee to share source code with contractors accused of copyright infringement. https://ecf.ca8.uscourts.gov/cgi-bin/today2.pl
Need to fix apparent “drafting error” in Florida court ruling justified Delaware chancery court’s rare refusal to order shareholder meeting to elect directors first. https://courts.delaware.gov/Opinions/Download.aspx?id=308940
That brings us up to date for the Commercial Appeals Roundup. I hope to see you in this same space next Monday, August 24. Be well.
Barry Barnett
Because my practice focuses on complex commercial disputes–especially antitrust, energy, and intellectual property–I keep daily track of important decisions by the U.S. Supreme Court, the 13 U.S. Courts of Appeals, and the highest appeals courts in Delaware, New York, and Texas.
You can follow along during the week on Twitter (@contingencyblog) or here at The Contingency each Monday with this Commercial Appeals Roundup.
Check out my profile on the Susman Godfrey website.