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On May 18, 2022, the U.S. Court of Appeals for the Fifth Circuit issued its decision in Jarkesy v. Securities and Exchange Comm’n, in which it examined the constitutionality of an agency civil money penalty enforcement proceeding.
The US Court of Appeals for the Federal Circuit dismissed the appeal of a disappointed movant seeking prejudgment interest and a new damages trial after concluding that the district court did not enter an appealable final order despite closing the case nearly three years before the appeal was filed. Halo Electronics, Inc. v. Bel Fuse Inc., Case No. 2021-1861 (Fed. Cir. May 6, 2022) (per curiam) (nonprecedential).
The US Court of Appeals for the Federal Circuit vacated a district court’s noninfringement decision that was based on a negative claim construction and remanded with instructions for the district court to determine what affirmative claim construction should be adopted. Sound View Innovations, LLC v. Hulu, LLC, Case No. 21-1998 (Fed. Cir. May 11, 2022) (Prost, Mayer, Taranto, JJ.)
In yet another “sue and settle” case, the U.S. Environmental Protection Agency has proposed entering into a consent decree agreeing to rule on the Center for Biological Diversity’s (CBD) petition to classify discarded polyvinyl chloride (PVC) as a hazardous waste under the Resource Conservation and Recovery Act (RCRA). Part of a broader initiative to decrease the volume of plastic waste, this may result in a rule classifying a wide range of PVC-containing industrial, commercial, and retail materials and products as hazardous wastes when discarded.
On May 16, 2022, the United States Supreme Court ruled that limiting the repayment of candidate loans to their own campaign to $250,000 (codified under 52 U.S.C. § 30116(j)) is unconstitutional. The Plaintiffs, Ted Cruz for Senate and Senator Ted Cruz, filed suit against the Federal Election Commission (“FEC”), stating that the repayment limitation unconstitutionally infringes the First Amendment rights of the Senator, the Campaign, and any individuals who might seek to make post-election contributions.
Like the federal government, many states have adopted False Claims Act (FCA) provisions that exclude tax matters from coverage. The federal model makes clear that matters under the Internal Revenue Service are not covered by the law, and in the vast majority of cases, states also explicitly exclude tax from coverage. However, there is a growing number of states seeking to extend FCA liability to tax cases in which “knowing” causes of action apply to any person that knowingly conceals, avoids or decreases an obligation to pay the state. In such states, FCA liability, including punitive penalties and damages, will be argued to create liability for certified public accountants (CPAs) and other tax professionals who advise clients to take a favorable tax position on a tax return or simply file a return with an “error.” Under a “knowing” standard, an “error” is asserted to exist when the taxpayer’s position differs from someone else’s view of the law—the reasonableness of the position simply does not matter.
The US Court of Appeals for the Federal Circuit reversed and remanded a district court decision regarding experimental use under 35 U.S.C. § 102(b) and the application of enhanced damages based on an allegedly flawed noninfringement and invalidity opinion. Sunoco Partners Mktg. & Terminals L.P. v. U.S. Venture, Inc., Case Nos. 20-1640; -1641. (Fed. Cir. Apr. 29, 2022) (Prost, Reyna, Stoll, JJ.)
The US Court of Appeals for the Federal Circuit vacated and remanded a Patent Trial & Appeal Board (Board) decision finding the challenged claims patentable because the Board impermissibly rested its motivation-to-combine analysis on evidence of general skepticism in the field of invention. Auris Health, Inc. v. Intuitive Surgical Operations, Case No. 21-1732 (Fed. Cir. Apr. 29, 2022) (Dyk, Prost, JJ.) (Reyna, J., dissenting).
Recent statements by Biden administration officials have raised the question of whether the Trump-era tariffs imposed on goods imported from China will be terminated or allowed to expire.
In so ruling, the high court rejected the conclusion of several lower court decisions that had allowed such state law remedies for violations of the FLSA.
Most employment-based permanent residency applications require the applicant to go through the PERM labor certification process where the U.S. Department of Labor (DOL) certifies that there are not sufficient U.S. workers able, available, and qualified to fill a position.
On May 18, 2023, the United States Supreme Court issued its long-awaited decision in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, a case that presented the Court with an opportunity to bring clarity to the often highly subjective standards lower courts apply when deciding the issue of fair use of visual works of art under copyright law.
It is more important than ever that employers understand the serious long-term, non-monetary consequences of settling or accepting Occupational Safety and Health Administration (OSHA) citations.
A new Washington law regulating employers’ use of production quotas or production standards for employees working at warehouse distribution centers (House Bill 1762) will go into effect on July 1, 2024.
As a part of the Consolidated Appropriations Act, 2023 (CAA), Congress passed new exceptions to the Physician Self-Referral Law (Stark Law) and the federal Anti-Kickback Statute (AKS) allowing certain healthcare entities to provide mental health or behavioral health improvement and/or maintenance programs to physicians and other clinicians.
On May 17, 2023, the Texas Senate approved Senate Bill No. 14 (SB 14), prohibiting physicians from providing gender-affirming medical care to minors experiencing gender dysphoria (distress that results from having one’s gender identity not match one’s sex assigned at birth).
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