17 Analyses of this case by attorneys

  1. Following Repeal of the Individual Mandate, Twenty States Challenge the Affordable Care Act

    Sheppard, Mullin, Richter & Hampton LLPJordan GrushkinJune 15, 2018

    v. Sebelius, 567 U.S. 519, 558, 574 (2012).[4] 42 U.S.C. § 18091(2)(I); King v. Burwell, 135 S. Ct. 2480, 2487 (2015).[5]Complaint at 16-17.

  2. Ninth Circuit Adds to Circuit Split on Dodd-Frank Anti-Retaliation Protection for Internal Whistleblowers

    Eversheds Sutherland (US) LLPAmelia Toy RudolphMarch 10, 2017

    Terms can have different operative consequences in different contexts.” In support, the majority cited King v. Burwell, 135 S. Ct. 2480, 2493 n.3 (2015) (“‘the presumption of consistent usage readily yields to context,’ and a statutory term may mean different things in different places”). The majority also invoked a treatise co-authored by Justice Scalia to the effect that “[Statutory d]efinitions are, after all, just one indication of meaning – a very strong indication, to be sure, but nonetheless one that can be contradicted by other indications.”

  3. Arista Networks, Inc. v. Cisco Systems, Inc. (Fed. Cir. 2018)

    McDonnell Boehnen Hulbert & Berghoff LLPNovember 13, 2018

    The panel based its decision on the language of § 311(a), which states that "a person who is not the owner of a patent" can file a petition for IPR. This language "leaves no room for assignor estoppel in the IPR context" according to the opinion (the panel agreeing with Arista's argument in this regard) and where, as here, the statutory language is "unambiguous" the Court is obliged to "enforce it according to its terms," citing King v. Burwell, 135 S. Ct. 2480, 2489 (2015). The panel expressly rejected Cisco's argument that not applying assignor estoppel in the IPR context was inconsistent with its availability as a defense before a district court or the International Trade Commission that could result in "forum shopping," saying that this outcome was "an intentional congressional choice": Such a discrepancy between forums—one that follows from the language of the respective statutes—is consistent with the overarching goals of the IPR process that extend beyond the particular parties in a given patent dispute.

  4. Following Repeal of the Individual Mandate, Twenty States Challenge the Affordable Care Act

    Sheppard Mullin Richter & Hampton LLPMatthew GoldmanJune 18, 2018

    v. Sebelius, 567 U.S. 519, 558, 574 (2012). [4] 42 U.S.C. § 18091(2)(I); King v. Burwell, 135 S. Ct. 2480, 2487 (2015). [5] Complaint at 16-17.

  5. Deference Provided to Regulations When There’s a Drafting Error

    McDermott Will & EmeryK. Christy Vouri-MissoApril 4, 2018

    v. US 56 Fed. Cl. 228 (2003), rev’d on other grounds 379 F.3d 1303 (Fed. Cir. 2004); see alsoKing, et al. v. Burwell, et al., 135 S. Ct. 2480, 2505 (2015) (Scalia Dissent) (“Only when it is patently obvious to a reasonable reader that a drafting mistake has occurred may a court correct the mistake. The occurrence of a misprint may be apparent from the face of the law, as it is where the Affordable Care Act ‘creates three separate Section 1563s.

  6. Amicus Briefs Filed in Mohawk Tribe's Motion to Dismiss IPRs

    McDonnell Boehnen Hulbert & Berghoff LLPKevin E. NoonanJanuary 30, 2018

    Further, an agency acting beyond its purview lacks legitimacy and accountability. Controversial measures such as Petitioners' proposed restrictions on tribal sovereign immunity require a broader national democratic debate than an agency like the Board can provide [citing Hampton v. Mow Sun Wong, 426 U.S. 88, 116 (1976), Greene v. McElroy, 360 U.S. 474 (1959), and King v. Burwell, 135 S. Ct. 2480, 2489 (2015)]. This institutional incompetence is exacerbated by the allegations that: [T]he Allergan/Mohawk contract is a 'sham agreement'[,] a 'sham assignment'[,] a 'scheme[] to buy tribal immunity for dubious activities'[,] and even an example of 'rent-a-tribe' schemes" [internal quotation marks and citation omitted] because "[n]ot only are these arguments highly disrespectful to the sovereign Tribe, but adjudicating them will embroil the Board in an intrusive and politically charged inquiry into tribal motivations and the policy wisdom of tribal economic freedom.

  7. Health Update - November 2017

    Manatt, Phelps & Phillips, LLPJacqueline C. WolffNovember 28, 2017

    The court found, however, that the plaintiffs’ “implied appropriation” argument effectively seeks to resolve an ambiguity in the ACA’s language where none appears to exist. As the Supreme Court held in King v. Burwell, 135 S. Ct. 2480 (2015), language that is unambiguous in isolation can become ambiguous upon reading other parts of a statute. (Id.

  8. The Legality of Cost-Sharing Reduction Payments Under the ACA

    Manatt, Phelps & Phillips, LLPAndrew StruveNovember 28, 2017

    The court found, however, that the plaintiffs’ “implied appropriation” argument effectively seeks to resolve an ambiguity in the ACA’s language where none appears to exist. As the Supreme Court held in King v. Burwell, 135 S. Ct. 2480 (2015), language that is unambiguous in isolation can become ambiguous upon reading other parts of a statute. (Id.

  9. Inside the Courts – An Update From Skadden Securities - June 2017

    Skadden, Arps, Slate, Meagher & Flom LLPJay KasnerJune 10, 2017

    The court reasoned that the definition of “whistleblower” found in Dodd-Frank — which includes only those employees who report potential wrongdoing “to the Commission” — is not dispositive. Rather, as the U.S. Supreme Court stated in King v. Burwell, 135 S. Ct. 2480 (2015), “[t]he use of a term in one part of a statute ‘may mean a different thing’ in a different part, depending on context.” That is so even where the statute contains a “definitional provision” specifically defining the term.

  10. Circuit Split on Whistleblower Protections Widens

    Orrick, Herrington & Sutcliffe LLPMike DelikatMarch 16, 2017

    Therefore, “[l]eaving employees without protection for that required preliminary step would result in early retaliation before the information could reach the regulators.” Citing King v. Burwell, 135 S. Ct. 2480, 2489 (2015), for the proposition that statutory “[t]erms can have different operative consequences in different contexts,” the majority held that the fact that “[Dodd-Frank]’s definitional provision describes ‘whistleblowers’ as employees who report ‘to the Commission’ thus should not be dispositive of the scope of the [Dodd-Frank]’s later anti-retaliation provision.” Dissenting, Judge Owens wrote that the court should “quarantine King and its potentially dangerous shapeshifting nature to the specific facts of that case to avoid jurisprudential disruption on a cellular level.”