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2 More Judges Decline To Dismiss ERISA Tobacco Surcharge Lawsuits

Two more federal judges have ruled that some or all claims survive dismissal in putative class actions challenging surcharges that health plan administrators require tobacco or nicotine users to pay, and a motion to compel arbitration has been granted in another similar case.

Pa. Supreme Court: Order To Compel Arbitration Not Appealable In Uber Injury Suit

PHILADELPHIA — The Pennsylvania Supreme Court on Jan. 21 vacated an appellate court judgment finding that a trial court order granting a petition to compel arbitration is an appealable collateral order in a negligence suit against Uber Technologies Inc. and related parties, finding that the appellate court lacked jurisdiction over the issue of whether there was a valid arbitration agreement.

11th Circuit: Attorney Logs In Lead Smelter Case Are Not Protected By Privilege

ATLANTA — An 11th Circuit U.S. Court of Appeals panel on Jan. 21 affirmed a lower court’s denial of a motion for a protective order sought by a law firm in a complex discovery dispute over allegations of fraud in an underlying case involving claims brought by Peruvian citizens who say there were injured by exposure to lead from a smelting operation. The panel held that the law firm was not entitled to attorney-client privilege or work product protection for documents related to the firm’s efforts to recruit plaintiffs for the case against the smelter.

Federal Circuit Affirms Denial Of Patent Owner’s JMOL Of Infringement Motion

WASHINGTON, D.C. — A Federal Circuit U.S. Court of Appeals panel on Jan. 21 affirmed a Minnesota federal judge’s refusal to grant a patent owner’s posttrial request for judgment as a matter of law of infringement and patent validity, but the panel vacated portions of the judge’s final order that improperly applied to unasserted patent claims.

7th Circuit Reverses Bar On Little Caesars’ Use Of ‘Pizza Puff’ Phrase

CHICAGO — A federal judge in Illinois applied the wrong legal standards for genericness and fair use when issuing a preliminary injunction barring the companies behind the Little Caesars pizza chain from using the phrase “Pizza Puff” when advertising a new cupcake-like pizza product, a Seventh Circuit U.S. Court of Appeals panel held; the panel determined that the judge failed to adequately analyze whether another food entity’s “Pizza Puff” mark was protectible.

High Court Hears Arguments On President’s Control Of Federal Reserve Seat

WASHINGTON, D.C. — The solicitor general told the U.S. Supreme Court on Jan. 21 that the justices should stay a preliminary injunction that reinstated Federal Reserve Gov. Lisa D. Cook after she was purportedly removed by President Donald J. Trump in August via a social media post as the removal was proper since it was due to “deceit[ful]” or “gross[ly] negligen[t]” mortgage applications Cook submitted in 2021, prior to her being nominated to that post, and that the Federal Reserve has been given over the years what “is clearly quintessential executive power.”

D.C. Circuit Panel Denies Airport Board Challenge To Cybersecurity Amendment

WASHINGTON, D.C. — The District of Columbia Circuit U.S. Court of Appeals on Jan. 20 denied a petition filed by the Spokane Airport Board seeking review of the Transportation Security Administration’s (TSA) emergency amendment requiring certain airport security programs to include specified cybersecurity measures, finding in part that TSA’s regulatory authority includes the addition of cybersecurity plans to airport security programs.

Colorado Supreme Court Partly Grants Certiorari In Coronavirus Coverage Dispute

DENVER — The Colorado Supreme Court on Jan. 20 partly granted a retirement communities owner insured’s petition seeking review of a Colorado appeals court majority’s opinion that partly reversed a lower court’s ruling in favor of the insurer in the insured’s lawsuit seeking coverage for its losses arising from the coronavirus pandemic.

Split Federal Circuit Says Judge Wrongly Excluded Experts From Patent Row

WASHINGTON, D.C. — A split Federal Circuit U.S. Court of Appeals panel on Jan. 20 reversed a Pennsylvania federal judge’s decision to exclude two expert witnesses in a dispute brought by a physician who claims DePuy Synthes Sales Inc. and related DePuy entities induced surgeons to infringe certain claims of his patents; the panel majority held that the judge wrongly treated claim construction and survey methodology questions as admissibility issues and not questions for a jury.

6th Circuit Finds Dispute Remains As To Some Claims In Suit Over Stock Sale

CINCINNATI — A Sixth Circuit U.S. Court of Appeals panel affirmed in part and reversed in part a lower court’s grant of summary judgment in favor of a biomedical research company and its controlling members in a suit brought by its founder alleging they violated securities laws and breached their fiduciary duties by not informing him that they were considering private-equity financing when he sold his stake in the company, finding a genuine dispute of material fact exists as to the founder’s fiduciary duties claim but not as to his securities law claims.

Split 1st Circuit Revives Lanham Act Claims Against Puerto Rico Over Baseball Icon

BOSTON — A partially split First Circuit U.S. Court of Appeals panel largely affirmed a Puerto Rico federal judge’s decision to dismiss a suit against Puerto Rican government entities brought by the sons of legendary baseball player Roberto Clemente for putting his image on license plates without their authorization, but the panel majority held that Clemente’s heirs had adequately raised Lanham Act claims against the government officials in their personal capacity to survive a motion to dismiss.

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