Minding Your Business

Proskauer’s perspective on developments and trends in commercial litigation.

Tag Archives: U.S. Supreme Court

The FTC’s Enforcement Power: How AMG Reshapes the Landscape

In a unanimous opinion, the U.S. Supreme Court held that Section 13(b) of the FTC Act does not authorize the Federal Trade Commission to seek monetary relief in the form of restitution or disgorgement, despite the agency’s redoubled practice of seeking such relief under the Act since 2012. The Court’s opinion significantly reshapes the FTC’s … Continue Reading

CAFC Tightens Enablement Standard for Functional Claiming of Antibodies

In the recent case of Amgen Inc. v. Sanofi, Aventisub LLC, the Federal Circuit affirmed the district court’s invalidation of certain of Amgen’s antibody patent claims, concluding that the claims were not “enable[d]” under 35 U.S.C. § 112. This decision establishes that it is more difficult to satisfy the enablement requirement for antibody claims that … Continue Reading

Circuit Split Deepens as Eleventh Circuit Rejects “Risk of Identity Theft” Theory of Standing in Data Breach Suit

On February 4, 2021, the Eleventh Circuit affirmed the dismissal of a customer’s proposed class action lawsuit against a Florida-based fast-food chain, PDQ, over a data breach. The three-judge panel rejected the argument that an increased risk of identity theft was a concrete injury sufficient to confer Article III standing, deepening a circuit split on … Continue Reading

Do All Class Members Have Standing For Mere Statutory Violations? The Supreme Court Will Decide

On March 30, the Supreme Court will hear arguments on whether a damages class action, is permitted by Article III of the Constitution or Rule 23 of the Federal Rules of Civil Procedure where the majority of the class has suffered no actual injury. Notably, this is the first time the Supreme Court will apply … Continue Reading

Could the FTC Pass the Torch to the Consumer Financial Protection Bureau to Oversee the Fintech Industry?

The change in the White House administration combined with a potential ground-breaking Supreme Court decision may move the oversight and enforcement for marketing by the fintech sector from the Federal Trade Commission (“FTC”) to the Consumer Financial Protection Bureau (“CFPB”).  This would be a tectonic shift.… Continue Reading

Supreme Court to Weigh in on Constitutionality of Patent and Trial Appeal Board Appointments

The Supreme Court recently granted three petitions for certiorari challenging the Federal Circuit’s holding in Arthrex v. Smith & Nephew that administrative patent judges of the Patent Trial and Appeal Board (PTAB) are unconstitutionally appointed. Under the Patent Act, PTAB judges are appointed by the Secretary of Commerce in consultation with the Director of the … Continue Reading

Supreme Court Decides No Signature, No Problem

On June 1, 2020, the U.S. Supreme Court delivered a unanimous opinion regarding the relationship between domestic equitable estoppel and the enforcement of arbitration agreements. In GE Energy Power Conversion France SAS, Corp., Converteam SAS v. Outokumpufka Stainless USA, LLC, et al., (“GE Energy Power”), the Court addressed the question of whether the Convention on … Continue Reading

Supreme Court Narrowly Rejects Second Circuit’s Sweeping “Defense Preclusion” Doctrine

Earlier this month, the United States Supreme Court unanimously rebuffed the Second Circuit’s attempt to expand the scope of res judicata to include the so-called concept of “defense preclusion” – a novel doctrine that would have barred defendants from raising defenses not asserted in previously adjudicated disputes regardless of whether the disputes share a common … Continue Reading

Latest Attack on the Affordable Care Act Soundly Defeated: “The Government should honor its obligations.”

President Obama’s Affordable Care Act has survived yet another challenge in the federal courts. In a resounding 8-1 decision this Monday, April 27, 2020, the U.S. Supreme Court ruled that health insurance companies who suffered losses entering the new marketplaces established by the Affordable Care Act (“ACA”) were entitled to compensation for those losses.… Continue Reading

State Liquor Law Tossed: Industry Changes Ahead

In a decision with major implications for fans of wine, liquor, or free trade, the Supreme Court has affirmed a ruling that struck down a Tennessee law, which imposed certain residency requirements to operate retail liquor stores, as impermissibly violating the Commerce Clause. Tennessee Wine and Spirits Retailers Assn. v. Thomas. Justice Alito, writing for the majority … Continue Reading

Consolidation, Like Marriage, Preserves the Distinct Identities and Rights of Its Constituents

In its recent decision in Hall vs. Hall, the U.S. Supreme Court ruled unanimously that after a final decision in one of several consolidated cases, the losing party has the immediate right to appeal that decision, even when other consolidated cases are still pending. Courts may consolidate cases for efficiency. Writing for the Court, Justice … Continue Reading
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