Second Circuit -- Server Down

The Second Circuit server has been down for a couple hours -- any opinions that rolled today will be listed Monday, so long as the crick don't rise.  Addio!

Federal Circuit -- ASTRAZENECA V. AUROBINDO

Drug patent valid, as although the solution might have been an obvious one to try, it would have required a venture into a new and promising field of experimentation

No inequitable conduct, as although the withheld citation was possessed and discussed,  likely inference of malice is lacking.

Reissue was valid, as the lawyers had an inadequate grasp of the law. 

[When reading a patent case, MB can relate to that.  Again, entertainment purposes only.]

US based Hatch-Waxman ANDA claimant has liability on the claim, given the identity of interests with the foreign subsidiary for whom the claim was ostensibly filed.

Concurrence:  US based ANDA claimant has liability because it intends to actively engage in the subsequent production of the generic.

Dissent - Reissue was bad given lack of due diligence


ASTRAZENECA V. AUROBINDO

DC Circuit -- Jamal Kifafi v. Hilton Hotel Retirement Plan

As the modification to an ERISA plan during the pendency of class certification for an action challenging the plan claimed that the prior arrangement was legal, the change did not make the suit moot, as the company's understanding of the relevant law apparently doesn't preclude further problems in this area.

Where there are three ways of a plan complying with the relevant statute, a court's order that it undertake one in particular is a fair exercise of equitable powers.

Beneficiaries' receipt of payments indicating an unfairly backloaded plan did not cause the claim to accrue for purposes of the statute of limitations where identifying the difference would require the application of complex law to complex facts.

Beneficiaries who participated in the plan prior to the administrator's making of a statement that proved noncompliance with the statute are also eligible for relief, if the scheme was essentially the same during their participation.

When imposing an equitable remedy, a court may hold that participants in an illicitly backloaded plan can mature out of the injury by accruing benefits during the later (inappropriately) lucrative payment periods.

Trial court did not abuse discretion in barring nonunion years of work from claim at class certification, as nonunion service was not itself inherently part of the claim.

Jamal Kifafi v. Hilton Hotel Retirement Plan

DC Circuit -- Marilyn Vann v. Department of the Interior

Ex Parte Young claim against chief of Indian tribe may proceed without necessary joinder of the tribe itself, as joinder is barred by sovereign immunity.

Marilyn Vann v. Department of the Interior

DC Circuit -- Malla Pollack v. Thomas Hogan

Ultra vires action by officers of the federal government creates an exception to Sovereign Immunity, even absent proof of consequent Constitutional harm.

Malla Pollack v. Thomas Hogan

DC Circuit -- Khairulla Khairkhwa v. Barack Obama

No clear error in District Court's holding that petitioner, a former provincial Governor was more likely than not a part of the Taliban forces.

Khairulla Khairkhwa v. Barack Obama

DC Circuit -- PMCM TV, LLC v. FCC

Agency erred in barring transfer of company's broadcast licenses to non-proximate states.

Achieves the intent of the legislation - better allocation of the stations across the states.

PMCM TV, LLC v. FCC

DC Circuit -- Medco Health Sol. of Las Vegas v. NLRB

When an employee wears a union t-shirt critical of an employee incentives program but created by another shop owned by the same company, it is concerted activity.

Non-monetary incentive/recognition program is a term or condition of employment, as it is an attempt to improve productivity.

Less deference due Board on employee/customer relations than on management/employee relations.

Board erred in striking down blanket ban on provocative and insulting clothing - more evidence needed on effect on customers of the business.

Medco Health Sol. of Las Vegas v. NLRB

Eleventh Circuit -- Robert Alan Witcher, et al. v. Valery W. Early, III

As petitioner kept luxury items (tractor, RV, camper) and was therefore able to pay their debts to some degree, the Chapter 7 Bankruptcy petition was an abuse of process under the totality standard, even if not under the means-test standard.

Robert Alan Witcher, et al. v. Valery W. Early, III

Eighth Circuit -- Robert Cochran v. Dave Dormire

State court's decision that counsel's lack of objection to critical testimony was not ineffective assistance was not unreasonable.

State court's decision that apparent lack of interview of alibi witness by deft counsel was not ineffective assistance was not unreasonable.

Where the alibi is for the 'early evening' and the crime was at or around 6:30, the alibi is not exclusive with the crime. (Burglary, shooting, etc)

Robert Cochran  v.  Dave Dormire

Seventh Circuit -- Martin Woolley v. Dave Rednour

Where state lower court court finds ineffective assistance and the Court of Appeals expressly declines to reach the issue, federal Habeas review is de novo.

When the response to well-signalled critically inculpatory evidence at a trial in a capital case is not a strong cross and an expert witness in rebuttal, but rather a sketch on a legal pad shown during closing, that's ineffective assistance.

No prejudice, though, as the deft is the only one who could have contradicted the story, and he didn't take the stand, and absent disproof, the confession - whether or not written to protect the other suspect, the deft's wife - would have ensured the verdict.

Martin Woolley v. Dave Rednour

Sixth Circuit -- Art Shy v. Navistar Int'l

Health plan administrator, functioning as ERISA fiduciary, is not due deference on interpretation of plan terms, as grant of authority to do so is not express and clear.

Substituting Medicare for the plan's prescription plan benefit was a major change, not an administrative one.

District Court had jurisdiction to enforce terms of Settlement Agreement, as the contest was not one of individual eligibility for the plan but overall interpretation.

Equitable relief to the class as a whole did not constitute monetary damages.

Where plan members were subjected to premia in violation of the consent decree, court did not err in awarding judgment without an evidentiary hearing to determine if those costs had been offset.


Art Shy v. Navistar Int'l

Fourth Circuit -- James Blakely v. Robert Wards

Summary Judgment dismissals count as strikes for purposes of the frivolous litigation provisions of PLRA.

Key is whether the decision facially establishes that court held the criteria to be met.

James Blakely v. Robert Wards

Fourth Circuit -- US v. Nicolas Carpio-Leon

Illegal aliens do not have the 2A right to bear arms.

Right is limited to law-abiding members of the political community.

Deference to political branches on matters of immigration.

Statute survives rational basis, as illegal guns are a burden on commerce and a threat to government officials.


US v. Nicolas Carpio-Leon

Fourth Circuit -- Ashland Facility Operations v. NLRB

Election results not tainted, as NAACP official was not an apparent agent of the union when racially inflected comments were made.

Comments were about working conditions at the facility and therefore not per se inflammatory.

Heightened scrutiny does not apply where racially based comments were made by a third party.  Circuit split flagged.

Comments were outside critical period of election anyway.

No  abuse of discretion in the ALJ's limitaiton of the subpoena duces tecum to documents relating to the critical period of the election.

Ashland Facility Operations v. NLRB