Morrison Foerster’s All Things Appeals provides comprehensive insights and in-depth analyses on the latest trends and complex issues shaping the appellate landscape across various courts.Our <a href="https://www.mofo.com/capabilities/appellate-supreme-court" target="_blank">Supreme Court and Appellate Practice</a> includes two former assistants to the Solicitor General, three partners who have collectively presented argument before the Supreme Court more than two dozen times, and attorneys who have argued hundreds of federal and state appellate court appeals across the country.<h2>About Morrison Foerster</h2>Morrison Foerster is a leading global law firm that transforms complexity into advantage for its clients. Our clients include some of the largest financial institutions, banks, consulting and accounting firms, and Fortune 100, technology, and life sciences companies. Highlighting the firm’s commitment to client service, leadership in market-changing deals and impact litigation, and values-based culture, Morrison Foerster has been repeatedly recognized as one of the top 10 firms on The American Lawyer’s A-List. Year after year, the firm receives significant recognition from Chambers and The Legal 500 across their various guides, including Global, USA, Asia‑Pacific, Europe, UK, Latin America, and FinTech Legal. Our lawyers passionately care about delivering legal excellence while living our values. Morrison Foerster has a long-standing commitment to creating a culture that respects and celebrates differences, while providing an inclusive environment. The firm also has a long history of commitment to the community and society through providing pro bono legal services, including litigating for civil rights and civil liberties, improving public education and fostering the wellbeing of children, advocating for veterans, promoting international human rights, enforcing the right to asylum, and safeguarding the environment.

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Seth Lloyd is a partner in the Appellate and Supreme Court practice with particular experience arguing and briefing high stakes patent appeals at the Federal Circuit. Seth is a go-to appellate attorney for complex appeals and has argued many cases in federal and state appellate courts across the country. He is especially skilled in appeals at the intersection of law and technology, where he leverages his strong technical background. Clients appreciate Seth’s ability to distill complicated scientific and legal principles into clear and winning arguments. He takes that approach in the Federal Circuit, where he handles appeals from district courts, the Patent Trial and Appeal Board, and the International Trade Commission. Seth’s winning oral arguments include a successful reversal of three PTAB decisions in a consolidated appeal for a computer memory designer. Seth is also co-chair of the Federal Circuit Bar Association’s Administrative Law & Regulatory Committee. Seth regularly practices in the United States Supreme Court. He has drafted petitions and amicus briefs at the certiorari stage, as well as party and amicus briefs at the merits stage. Seth also moots members of the bar for Supreme Court arguments through the Georgetown Supreme Court Institute and is a barrister in the Edward Coke Appellate Inn of Court. In 2025, Seth won the American Cancer Society Cancer Action Network’s Judicial Advocacy Initiative Award for his pro bono work in support of access to healthcare.Before joining Morrison Foerster, Seth served as a law clerk for Judge Richard G. Taranto of the Federal Circuit. He earned his J.D. from Stanford and holds a Ph.D. in electrical engineering, also from Stanford. During his graduate studies, Seth received the National Defense Science and Engineering Graduate Fellowship, published 10 peer-reviewed articles, and co-invented the subject matter of five U.S. patents.<h4>Appellate Arguments</h4><ul><li><a href="/resources/video-audio/251104-genuine-enabling-tech-llc-v-sony-grp-corp" target="_self">Genuine Enabling Tech. LLC v. Sony Grp. Corp.</a> (25:25) (Fed. Cir.) Prevailed in a precedential decision affirming summary judgment of noninfringement for lack of structural equivalents to a means-plus-function claim limitation. The decision ensured a complete defense victory in a case where the patent owner sought nearly $500 million in damages. </li><li><a href="/resources/video-audio/251208-cpc-patent-technologies" target="_self">CPC Patent Technologies v. Apple Inc.</a> (14:38) (Fed. Cir.) Argued and won affirmance for inter partes review petitioner in challenge to patent claims to biometric security </li><li><a href="/resources/video-audio/251208-cpc-patent-technologies-v" target="_self">CPC Patent Technologies v. Apple Inc.</a> (13:42) (Fed. Cir.) Argued and won affirmance for inter partes review petitioner in challenge to patent claims to biometric security </li><li><a href="/resources/video-audio/251208-cellspin-soft-v-fitbit-llc" target="_self">Cellspin Soft v. Fitbit LLC </a>(40:48) (Fed. Cir.) Argued on behalf of multiple defendants and won affirmance of summary judgment of noninfringement for patent claims related to wireless communications </li><li><a href="/resources/video-audio/251208-cellspin-soft-vs-fitbit-llc" target="_self">Cellspin Soft v. Fitbit LLC</a> (32:28) (Fed. Cir.) Argued and won dismissal of appeal requesting recusal of district court judge</li></ul><ul><li><a href="/resources/video-audio/220114-renesas-electronics-v-broadcom-corporation" target="_self">Renesas Electronics Corp. v. Broadcom Corp.</a> (00:10) (Fed. Cir.) Argued and won affirmance for inter partes review petitioner in challenge to electronic device claims</li><li><a href="/resources/video-audio/251208-ams-osram-usa-v-renesas" target="_self">ams-OSRAM USA v. Renesas Electronics America </a>(00:12) (Fed. Cir.) Argued and won partial reversal, partial affirmance, and partial vacatur of district court trade secrets decision</li><li><a href="/resources/video-audio/170609-netlist-inc-v-diablo-technologies" target="_self">Netlist, Inc. v. Diablo Technologies, Inc.</a> (02:56) (Fed. Cir.) Argued and won reversal for owner of computer memory patents in appeals from three consolidated inter partes reviews</li><li><a href="/resources/video-audio/200610-google-llc-v-netlist-inc" target="_self">Google LLC v. Netlist, Inc.</a> (13:15) (Fed. Cir.) Argued and won affirmance for owner of computer memory patents in consolidated appeals from decade-long reexamination</li><li><a href="/resources/video-audio/220309-apple-inc-v-mph-technologies" target="_self">Apple Inc. v. MPH Technologies Oy</a> (00:16) (Fed. Cir.) Argued for inter partes review petitioner in challenge to computer security claims</li><li><a href="/resources/video-audio/180808-netlist-inc-v-sandisk-llc" target="_self">Netlist, Inc. v. SanDisk LLC</a> (01:53) (Fed. Cir.) Argued for patent owner in consolidated appeals raising APA challenges to inter partes review decisions</li><li><a href="/resources/video-audio/201026-nicole-k-v-stigdon" target="_self">Nicole K. v. Stigdon</a> (00:16) (7th Cir.) Argued for children in Indiana foster care raising constitutional due process claims</li><li><a href="/resources/video-audio/200306-strike-3-holdings" target="_self">Strike 3 Holdings, LLC v. Doe</a> (21:40) (D.C. Cir.) Argued as court-appointed amicus defending an order refusing a subpoena to unmask an internet subscriber’s identity</li><li><a href="/resources/video-audio/161118-harris-v-mangum" target="_self">Harris v. Mangum</a> (00:02) (9th Cir.) Argued as court-appointed amicus defending indigent prisoner’s right to a guardian ad litem</li></ul><h4>Additional Representative Matters</h4><ul><li>Novartis v. Torrent (Fed. Cir.) Revived the validity of Novartis’s foundational patent protecting its blockbuster drug Entresto®</li><li>SNIPR Technologies Ltd. v. Rockefeller University (Fed. Cir.) Revived five SNIPR patents related to CRISPR technology after prevailing in a precedential decision that reversed the Patent Office’s interpretation of the America Invents Act (AIA), under which post-AIA patents could be subjected to pre-AIA interference proceedings</li><li>Broadcom Corp. v. International Trade Commission (Fed. Cir.) Successfully defended ITC’s determination of no Section 337 violation in case involving multiple patents directed to system-on-chip technology for automobile infotainment systems</li><li>Chugai Pharmaceutical Co. v. Alexion Pharmaceuticals (D. Del.) Successfully beat back defendant’s push for summary judgment of invalidity for lack of written description on pharmaceutical genus claims, ultimately helping to secure a $775 million settlement for the patent owner</li><li>C.R. Bard Inc. v. AngioDynamics, Inc. (Fed. Cir.) Secured reversal of district court judgment of non-infringement, no willfulness, and invalidity, reviving Bard’s infringement case on three patents</li><li>Washington University v. Wisconsin Alumni Research Foundation (3d Cir.) Successfully defended trial victory for breach of patent licensing agreement and further won judgment entitling Washington University to prejudgment interest</li><li>Nevro Corp. v. Boston Scientific Corp. (Fed. Cir.) Secured reversal for Nevro of district court judgment of invalidity for indefiniteness</li><li>Federal National Mortgage Association v. Zabriskie (9th Cir.) Won reversal for Fannie Mae of a Fair Credit Reporting Act judgment</li><li>Henson v. Santander Consumer USA Inc. (S. Ct.) Represented U.S. Chamber of Commerce and others as amici supporting respondent in unanimous affirmance of Fair Debt Collection Act decision</li><li>BASF Corp. v. Johnson Matthey Inc. (Fed. Cir.) Won reversal of an invalidity ruling against patentee BASF, reviving its patent claims</li><li>C.R. Bard Inc. v. Medline Industries, Inc. (Fed. Cir.) Won vacatur for petitioner of three Patent Trial and Appeal Board decisions on obviousness for patents to medical device technology</li><li>Altayyar v. Etsy, Inc. (2d Cir.) Secured dismissal of securities fraud case for failure to adequately plead falsity</li><li>Bridge & Post, Inc. v. Verizon Communications, Inc. (Fed. Cir.) Secured dismissal because asserted patents claimed unpatentable subject matter</li><li>Sam Francis Foundation v. Christie’s, Inc. (S. Ct.) Successfully preserved Sotheby’s en banc win at the Ninth Circuit based on the dormant Commerce Clause</li><li>Phigenix, Inc. v. Genentech, Inc. (Fed. Cir.) Secured total victory of noninfringement for Genentech</li><li>Deason v. Fujifilm Holdings Corp. (New York Appellate Division, First Department) Secured reversal in major shareholder challenge to corporate acquisition</li><li>V.L. v. E.L. (S. Ct.) As counsel for children’s guardian ad litem, secured reversal of Alabama Supreme Court’s refusal to grant full faith and credit to Georgia judgment recognizing lesbian mother as legal parent</li></ul>

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Partner

Seth Lloyd is a partner in Morrison Foerster’s Appellate and Supreme Court Practice with broad experience briefing and arguing complex appeals. Seth is particularly sought after for his experience in high stakes patent appeals at the Federal Circuit, where he leverages his strong technical background and deep understanding of patent law. Clients appreciate Seth’s ability to transform complicated scientific and legal principles into clear and winning arguments.

Seth Lloyd

Aileen McGrath is a leading appellate attorney and partner in Morrison Foerster’s Appellate and Supreme Court practice. She represents clients in high-stakes appeals in the U.S. Supreme Court, the Ninth Circuit, the California Supreme Court, and appellate courts across the country, with a particular focus on California appellate litigation.Known for her exceptional legal writing, strategic acumen, and oral advocacy, Aileen is described by clients as “extraordinarily knowledgeable,” “one of the best writers I have ever seen,” and uniquely skilled at crafting “the most effective strategy” in complex, bet-the-company cases. (Chambers USA)A broad range of sophisticated clients turn to Aileen to lead their appeals. Aileen has a robust track record, including arguing in the U.S. Supreme Court and leading many other Supreme Court matters at the merits and certiorari stages. She has also argued multiple appeals in the U.S. Court of Appeals for the Ninth Circuit and California Courts of Appeal and led representations at the California Supreme Court.Aileen’s appellate practice encompasses a broad range of areas, including:<ul><li>Class actions and consumer protection litigation</li><li>Constitutional law and civil rights cases</li><li>Labor and employment disputes</li><li>State and local government litigation</li><li>Administrative law (state and federal)</li></ul>In addition to her appellate work, Aileen is a trusted legal advisor known for her creative problem-solving and strategic collaboration with clients. Before joining Morrison Foerster, Aileen served as Co-Chief of Appellate Litigation at the San Francisco City Attorney’s Office. She also served as Deputy City Attorney on the Complex and Affirmative Litigation team, acting as lead counsel for San Francisco in numerous significant matters at all levels of the judiciary, including the U.S. Supreme Court and California Supreme Court.Aileen served as a law clerk to Justice Stephen Breyer of the U.S. Supreme Court and then-Chief Judge Michael Boudin of the U.S. Court of Appeals for the First Circuit. She also served as a chambers attorney at the California Supreme Court for Justice Mariano-Florentino Cuéllar.Aileen is an active member of the Bar Association of San Francisco and the Association of Business Trial Lawyers Northern California chapter. She maintains a robust pro bono practice, and she has been recognized by the International Municipal Lawyers Association and the California County Counsel’s Association for her dedication to local-government public interest work. She regularly guests lectures about oral advocacy and effective appellate writing at law schools across the country, including Yale Law School, UC Berkeley School of Law, UC Law San Francisco, and American University Washington College of Law. Aileen also frequently speaks publicly about the U.S. Supreme Court and the California Supreme Court.Aileen earned her J.D., magna cum laude, from Harvard Law School, where she was awarded the prestigious Sears Prize, recognizing the top two students in her class. She also served as president of the Harvard Law Review. She received her B.A., magna cum laude, from Columbia University.<h4>Representative Experience</h4><ul><li><a href="/resources/video-audio/240109-george-sheetz-county-el-dorado" target="_self">Sheetz v. County of El Dorado</a> (44:10) Argued on behalf of California local government in a U.S. Supreme Court property-rights case with significant national implications for land-use planning.</li><li>Successfully opposed a U.S. Supreme Court petition for certiorari in a Fourth Amendment case involving a circuit conflict.</li><li><a href="/resources/video-audio/220726-teresa-armstrong-v-michaels-stores" target="_self">Armstrong v. Michaels Stores, Inc.</a> (12:57) Argued and won a Ninth Circuit appeal in a case seeking to upend the standard for analyzing waiver of the right to move to compel arbitration.</li><li>Viqual Medical Technology LLC v. Kaiser Foundation Health Plan, Inc. Argued and won California appeal defending a complete summary judgment victory on behalf of the country’s largest integrated healthcare system in a $900M+ trade secret case involving wearable medical device technologies.</li><li>In re: Décor Holdings Argued and won a Second Circuit victory in a bankruptcy appeal challenging the assumption and assignment of a package pickup and delivery contract to a third-party purchaser in a Chapter 11 proceeding.</li><li>Successfully defeated class certification on behalf of a leading telecommunications company, and successfully led appellate representation to defeat plaintiffs’ Rule 23(f) petition for Ninth Circuit interlocutory review.</li><li>Served as lead counsel to a leading multinational provider of database, cloud, and enterprise technology solutions in a Ninth Circuit appeal, successfully defending final approval of a putative privacy class action settlement.</li><li>Successfully represented American Indian tribe before the Second Circuit in a significant Indian law case challenging New York State officials’ operation of state highway across tribe’s reservation.</li><li><a href="https://www.ca9.uscourts.gov/media/audio/?20191202/18-17308/" target="_blank">City & County of San Francisco v. Barr</a> (10:43) Successfully challenged federal government’s denial of Byrne JAG funding for sanctuary cities, including briefing and arguing appeal before Ninth Circuit and opposing petition for certiorari.</li><li>Successfully briefed and argued appeal in landmark California water rights case challenging the operation of the Hetch Hetchy Reservoir.</li><li><a href="/resources/video-audio/210301-jesica-rivera-v-merrick-garland" target="_self">Rivera v. Garland</a> (00:00) Argued and won a Ninth Circuit immigration victory in a case seeking asylum for a mother and her young daughter who fled gang violence in El Salvador.</li><li><a href="/resources/video-audio/250123-twin-metals-minnesota-llc-v-united-states" target="_self">Twin Metals Minnesota LLC v. United States</a> (59:03) Argued high-profile D.C. Circuit appeal on behalf of a coalition of environmental organizations defending the dismissal of a mining company’s lawsuit threatening to undo government efforts to protect the Boundary Waters Canoe Area Wilderness region.</li><li>Defeated petition for en banc review in D.C. Circuit appeal challenging Department of Interior’s tribal land trust decision</li><li>Successfully defended local government retail ordinance against a dormant Commerce Clause challenge.</li><li>Served as key drafter of the U.S. Supreme Court merits briefing in Hollingsworth v. Perry, which secured marriage equality in California.</li><li>Defeated election challenge to a San Francisco ballot initiative.</li></ul>

San Francisco City Attorney's Office

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Aileen McGrath, a partner in Morrison Foerster’s Appellate and Supreme Court practice, leads high stakes appeals in the U.S. Supreme Court and appellate courts across the country, with a particular focus on courts in California. Aileen has a robust track record, including arguing in the U.S. Supreme Court and leading many other Supreme Court matters at the merits and certiorari stages. She has argued multiple appeals in the U.S. Court of Appeals for the Ninth Circuit and California Courts of Appeal, and she regularly leads representations at the California Supreme Court. A broad range of sophisticated clients turn to Aileen to lead their appeals. They describe her as “one of the best writers I have ever seen,” uniquely skilled at developing “the most effective strategy” in bet-the-company cases, and “extraordinarily knowledgeable.”

Aileen McGrath

Brian Matsui is a partner in Morrison Foerster’s Appellate and Supreme Court practice. Brian is a go-to appellate advocate for sophisticated clients in complex appeals.Brian has a nationwide appellate practice. He has argued cases in federal and state appellate courts throughout the country, winning appeals involving commercial disputes, securities litigation and enforcement, government contracts, consumer class actions, and intellectual property. He has led appeals in the D.C., Second, Fourth, Fifth, Ninth, Eleventh, and Federal Circuits. His arguments include significant victories in class action appeals and in appeals for leading financial services companies, with multiple victories in the Ninth Circuit, where he clerked. Brian has recently gone six for seven when representing appellants, including a precedential victory in the Ninth Circuit in a licensing dispute concerning alleged patent misuse. He also argued and won a D.C. Circuit appeal against the Securities and Exchange Commission (SEC) about the retroactivity of part of the Dodd-Frank Act. As a result of Brian’s win, the SEC had to change its enforcement practices against certain securities industry professionals.Clients frequently turn to Brian for his substantial experience with appeals in the Federal Circuit, praising him as “an invaluable advocate in patent matters” (Chambers USA). Brian has won 15 of his last 17 appeals in that Court. His arguments before the Federal Circuit include winning appeals from district courts, the Patent Trial and Appeal Board, and the International Trade Commission. He has handled appeals in a myriad of industries, including mobile devices, pharmaceuticals, medical devices, semiconductors, and software.Brian also plays a key role on trial teams, advising clients on both critical legal issues and appellate preservation. He recently argued and prevailed against a summary judgment invalidity motion in a case involving Chugai Pharmaceutical Co. Ltd.’s revolutionary antibody recycling technology, which ultimately led to a $775 million settlement on the eve of trial for Chugai.A former law clerk for the United States Supreme Court, Brian has authored many briefs in that Court, including on important constitutional and statutory interpretation issues. He often represents clients’ interests in amicus briefs in significant Supreme Court cases affecting the business community.Leading publications have recognized Brian for his appellate skills. Chambers USA ranks him in its Intellectual Property: Appellate category, The Legal 500 US recommends him for Appellate Litigation, and the National Law Journal named him one of its Minority 40 Under 40.Brian also dedicates significant time to pro bono matters. He argued and won two significant appeals—in the Second and Ninth Circuits—obtaining reversals of judgments that had denied private rights of action under the Child Welfare Act in precedential decisions. Brian also led the Morrison Foerster team who co-counseled a successful Eighth Amendment challenge to Florida’s imposition of a life without the possibility of parole sentence to a juvenile offender convicted of a non-homicide crime.Brian serves on the board of directors of the Lawyers’ Committee for Civil Rights Under Law. For years, Brian chaired the ABA’s seven-person Standing Committee for Amicus Curiae Briefs. He served on the American Intellectual Property Law Association’s amicus committee and co-chaired the National Asian Pacific American Bar Association’s amicus committee. Brian also served as an appellate lawyer representative for the Ninth Circuit. Before entering private practice, Brian clerked on the United States Supreme Court for Justice Anthony M. Kennedy. He also clerked for Judge Pamela Ann Rymer in the Ninth Circuit and Judge David F. Levi in the Eastern District of California.While in law school, Brian served as managing editor of Volume 51 of the Stanford Law Review and was elected to the Order of the Coif.<h4>Representative Oral Arguments</h4><ul><li><a href="/resources/video-audio/260219-snipr-technologies-ltd-v-rockefeller" target="_blank">SNIPR Technologies Ltd. v. Rockefeller University</a> (Fed. Cir.). Prevailed in a precedential decision reversing the Patent Office’s interpretation of the America Invents Act (AIA) that subjected patents post-dating the Act to pre-AIA interference proceedings. The decision revived five of SNIPR’s patents related to CRISPR technology. </li><li><a href="/resources/video-audio/220114-broadcom-corporation-v-renesas-matsui" target="_self">Renesas Electronics Corporation v. Broadcom Corporation</a> (12:40) (Fed. Cir.). Successfully argued and briefed multiple appeals from an International Trade Commission (ITC) decision and several Patent Trial and Appeal Board decisions related to an ITC investigation initiated by Broadcom involving systems-on-chip powering automobile infotainment systems. </li><li><a href="/resources/video-audio/210706-cr-bard-v-medline-industries" target="_self">C.R. Bard Inc. v. Medline Industries, Inc.</a> (0:45) (Fed. Cir.). Won vacatur of three Patent Trial and Appeal Board decisions on obviousness. </li><li><a href="/resources/video-audio/260219-advanced-voice-recognition-systems-inc" target="_self">Advanced Voice Recognition Systems, Inc. v. Apple Inc.</a> (14:30) (Fed. Cir.). Secured a complete victory in appeal from Patent Trial and Appeal Board that all challenged patent claims were unpatentable. </li><li><a href="/resources/video-audio/260219-william-paulus-v-ocera-therapeutics" target="_self">William Paulus v. Ocera Therapeutics, Inc.</a> (13:25) (9th Cir.). Successfully argued and briefed appeal in a putative shareholder class action involving a tender offer. </li><li><a href="/resources/video-audio/260219-kurtz-v-costco-wholesale-corporation" target="_self">Kurtz v. Costco Wholesale Corporation</a> (9:23) (2d Cir.). Successfully petitioned for review of a class certification decision, then argued and obtained a remand for the district court to reconsider its certification decision, and an eventual reversal on an injunctive class certification decision. </li><li><a href="/resources/video-audio/161117-gregory-bartko-v-sec.html" target="_self">Gregory Bartko v. SEC</a> (0:53) (D.C. Cir.). Successfully argued and obtained precedential ruling that the Securities and Exchange Commission could not retroactively apply the Dodd-Frank Act’s industry-wide sanctions on securities professionals for certain securities violations. </li></ul>

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Brian Matsui is a partner in Morrison Foerster’s Appellate and Supreme Court practice. For nearly 20 years, Brian has been a go-to appellate advocate for sophisticated clients in complex appeals nationwide. He has argued numerous cases in federal and state appellate courts throughout the country, winning appeals involving commercial disputes, securities litigation and enforcement, government contracts, consumer class actions, and intellectual property. Clients turn to Brian for his substantial experience in patent appeals in the Federal Circuit. He has argued more than 20 times in that Court, winning appeals from both district courts, the Patent Trial and Appeal Board, and the International Trade Commission. Brian excels at applying significant legal principles to complex technologies in a way that distills them for the Court.

Brian Matsui

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Morrison Foerster’s All Things Appeals provides comprehensive insights and in-depth analyses on the latest trends and complex issues shaping the appellate landscape across various courts.Our <a href="https://www.mofo.com/capabilities/appellate-supreme-court" target="_blank">Supreme Court and Appellate Practice</a> includes two former assistants to the Solicitor General, three partners who have collectively presented argument before the Supreme Court more than two dozen times, and attorneys who have argued hundreds of federal and state appellate court appeals across the country.

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The Federal Circuit’s Ollnova Decision Sharpens the Rules for Patent Verdict Forms and § 101 Jury Instructions

Supreme Court Confirms No Private Right of Action Under Section 47(b) of the Investment Company Act

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No Writ, New Law: Ninth Circuit Uses Denied Mandamus Petition to Settle PSLRA Lead Plaintiff Rebuttal Standard

The Second Circuit Holds That Federally Chartered Corporations Have No Citizenship Under § 1332, Limiting Diversity Jurisdiction

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How much precision do patent jury verdict forms require? And how should district courts instruct juries on the factual issues underlying Section 101 patent eligibility? In Ollnova Technologies Ltd. v. ecobee Technologies ULC, Nos. 2025-1045, -1046 (Fed. Cir. June 4, 2026), the Federal Circuit addressed both questions and, in doing so, vacated an infringement verdict and $11.5 million damages award.Ollnova sued ecobee in the Eastern District of Texas, alleging that ecobee’s smart thermostats infringed four patents related to wireless communications in building automation systems. The case reached the jury with a partially resolved § 101 patent-eligibility issue as to one of the asserted patents. The district court had held that the ’495 patent was directed to an abstract idea under Alice step one, yet declined to resolve step two, finding that factual disputes remained as to whether the asserted limitations were “well-understood, routine, and conventional.” The jury ultimately returned a verdict of infringement, resolved the ’495 patent’s step-two factual dispute in Ollnova’s favor, and awarded $11.5 million in lump-sum damages. But the trial structure left two problems. The infringement verdict form asked only whether ecobee infringed “ANY” asserted claim of “the Asserted Patents,” without requiring the jury to identify which patent was infringed. And the § 101 instructions did not tell the jury what abstract idea was identified by the district court at Alice step one or  that the abstract idea itself could not supply the inventive concept at step two. Both of these issues, the Federal Circuit held, constitute reversible error.The Verdict Form: The Federal Circuit first held that the district court abused its discretion by submitting a single combined infringement question. Citing its recent decision in Optis Cellular Tech., LLC v. Apple Inc., 139 F.4th 1363, 1373 (Fed. Cir. 2025), the Federal Circuit reaffirmed that where multiple patents are asserted, the Seventh Amendment’s unanimity requirement demands, at a minimum, a separate infringement question for each asserted patent. A single “any patent” question creates an unacceptable risk that jurors will agree only that some patent was infringed, while disagreeing about which one.The Federal Circuit did not go further, however. It expressly declined to decide whether the verdict form also needed to be broken out on a claim-by-claim basis, because ecobee had argued only for a patent-by-patent breakdown. That question remains open.The § 101 Jury Instruction: The Federal Circuit also held that the district court’s jury instruction and verdict form on the ’495 patent’s eligibility under § 101 were erroneous. At the motion-to-dismiss stage, the district court had determined the ’495 patent’s claims directed to the abstract idea of “controlling generic components using information from two separate sources,” but concluded that factual disputes remained at Alice step two. The district court submitted the step-two factual question to the jury but instructed it only to decide whether the claim limitations were “well-understood, routine, and conventional.” The district court did not disclose the abstract idea or instruct the jury that the abstract idea itself cannot supply the inventive concept.That approach, the Federal Circuit held, was error. The court clarified that while bifurcating the step-one legal question (decided by the court) from the step-two factual questions (sent to the jury) is permissible, the abstract idea must be disclosed to the jury. Step two, after all, asks what the claim contains beyond the abstract idea, a question a jury cannot answer without knowing what the abstract idea is.In a footnote, the Federal Circuit also discussed a related procedural risk. District courts routinely deny § 101 motions to dismiss and motions for summary judgment based on step-two fact disputes without committing to a firm definition of the abstract idea at step one. The Federal Circuit affirmed that practice but flagged its risk: if step one is resolved only after trial and the abstract idea identified then differs from what was implicitly assumed during the jury charge, a new trial may be required.Takeaways: Ollnova sends two clear signals for patent litigants. First, in cases where multiple patents are at issue, litigants should insist on (at minimum) patent-by-patent infringement questions on verdict forms; a catch-all “ANY” question risks a verdict that cannot survive appellate review. Second, district courts that send Alice step two to a jury must both identify the abstract idea on the record and instruct the jury that it cannot serve as the inventive concept.

Associate

Casey J. Lincoln

Casey Lincoln

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On June 11, 2026, the U.S. Supreme Court issued a 6-3 decision in FS Credit Opportunities Corp. et al. v. Saba Capital Master Fund, Ltd., et al., holding that Section 47(b) of the Investment Company Act of 1940 (ICA) does not give private parties a right to sue for rescission of contracts that allegedly violate the ICA. The Court reversed the Second Circuit, resolving a circuit split and foreclosing Section 47(b) as a private right of action.Read the <a href="https://www.mofo.com/resources/insights/260615-supreme-court-confirms-no-private-right-of-action" target="_self">full client alert</a>.

Chair of Investment Management Group

Kelley Howes is chair of the Investment Management Group, co-head of the Securities + Derivatives Regulatory Solutions team, and managing partner of the firm’s Denver office.

Kelley A. Howes

Kelley Howes is Co-Chair of the Investment Management Group and Managing Partner of the Denver office. She has experience with a wide range of legal, regulatory, compliance, corporate governance, insurance, and other matters relating primarily to the representation of U.S. registered and unregistered investment companies, offshore funds, registered investment advisers, transfer agents, and broker-dealers.

Kelley Howes

Seth Lloyd is a partner in the Appellate and Supreme Court practice with particular experience arguing and briefing high stakes patent appeals at the Federal Circuit.

Co-Head of Securities + Derivatives Regulatory Solutions

Val Dahiya is a partner in the firm’s Broker-Dealer Compliance + Regulation and Capital Markets practice groups, Co-Head of its Securities + Derivatives Regulatory Solutions team, and Co-Lead of the firm’s Digital Assets practice within the Fintech Group.

Val Dahiya is a partner in the firm’s Capital Markets and Broker-Dealer Compliance + Regulation practice groups, and Co-Head of its Securities + Derivatives Regulatory Solutions team.

Val Dahiya

Garrett Bosch

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In federal court, litigants may appeal only a handful of interlocutory issues, such as preliminary injunctions and class certification. But many cases also involve other issues that either party may wish to challenge when an interlocutory appeal brings them before an appellate court. These situations implicate the elusive doctrine of pendent appellate jurisdiction, which permits appellate review of those “other” issues in limited circumstances. The Fourth Circuit confronted one of those rare cases in Polk v. Montgomery County Public Schools, where it held that it could exercise pendent appellate jurisdiction over the merits of constitutional claims during an interlocutory appeal from the denial of preliminary injunctive relief. See 166 F.4th 400 (2026). The plaintiff, a substitute teacher, brought religious freedom claims under Section 1983 and Title VII against a school district over its pronoun policies. After the plaintiff sought a preliminary injunction on all of her claims, the school district moved to dismiss them under Rule 12(b)(6). The district court granted the motion to dismiss the Section 1983 claims but denied it as to the Title VII claim. Because it had already dismissed the Section 1983 claims, the district court then considered her motion for a preliminary injunction as to only the Title VII claim. Although the district court denied that request, it never expressly stated that it was also denying preliminary injunctive relief for the already-dismissed Section 1983 claims.The plaintiff then filed an interlocutory appeal of the denial of the preliminary injunction under 28 U.S.C. § 1292(a)(1). Yet her brief did not challenge the denial of the preliminary injunction on her Title VII claim—the only one that the district court had expressly ruled on. She instead challenged the denial of injunctive relief on the constitutional claims, specifically arguing that the district court had improperly dismissed those claims on the merits. See Appellant Br., 2025 WL 984855, at *6 (challenging “whether the district court properly dismissed [her] constitutional claims”). As the Fourth Circuit recognized, this teed up a tricky issue of appellate jurisdiction. Preliminary injunctions are immediately appealable under Section 1292(a)(1), but mid-case dismissals on the merits are not. So the only way for the plaintiff to challenge the dismissal of her constitutional claims was through the doctrine of pendent appellate jurisdiction. This “discretionary exception to the final judgment requirement . . . permits appellate courts to . . . review issues that are not otherwise subject to immediate appeal when such issues are so interconnected with immediately appealable issues that they warrant concurrent review.” Polk, 166 F.4th at 410. In simplified form, if a party takes a valid interlocutory appeal of one issue, then the appellate court can also review other issues that are sufficiently “interconnected” with the immediately appealable issue. This interconnectedness will be present in two situations: “(1) when an issue is inextricably intertwined with a question that is the proper subject of an immediate appeal; or (2) when review of a jurisdictionally insufficient issue is necessary to ensure meaningful review of an immediately appealable issue.” Id. Although it acknowledged that pendent appellate jurisdiction should be used “sparingly,” the Fourth Circuit found that it justified review of the dismissed constitutional claims. The court reached that conclusion by making two moves. First, it concluded that the district court had denied the plaintiff a preliminary injunction on her constitutional claims. Even if the lower court did not explicitly deny the injunction request, it effectively did so when it dismissed the constitutional claims under Rule 12(b)(6). This meant that the court could review the denied preliminary injunction on the constitutional claims under Section 1292(a)(1)—i.e., that this denial was “an immediately appealable issue.” And second, the only way to review that denial of injunctive relief on the constitutional claims was to review the dismissal of them on the merits. Indeed, if the constitutional claims remained dismissed, then the appellate court could not grant injunctive relief on them to begin with. The merits dismissal of the constitutional claims was thus “inextricably intertwined with” and “necessary to ensure meaningful review of” the district court’s denial of preliminary injunctive relief—placing them within the narrow scope of pendent appellate jurisdiction.Satisfied with its appellate jurisdiction, the Fourth Circuit proceeded to review the plaintiff’s challenge to the dismissal of constitutional claims. Although the court sided with the plaintiff on jurisdiction, it ultimately ruled against her on the merits, holding that the district court had correctly dismissed her constitutional claims. Polk offers a handful of practical lessons for litigants navigating interlocutory appeals. For one thing, it demonstrates that “sparingly” does not mean never. While pendent appellate jurisdiction is limited and seldom invoked, appellate courts will occasionally use it to review side issues, so long as they are closely related. And on a more cautionary note, Polk shows that pendent appellate jurisdiction can be a double-edged sword. Plaintiffs who succeed in securing interlocutory review of an otherwise unappealable issue may find that victory short-lived when the appellate court reaches the merits and conclusively rules against them.

Karl J. Mihm

Karl Mihm

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Inextricably Intertwined: The Fourth Circuit Invokes Rare Doctrine of Pendent Appellate Jurisdiction

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In federal court, litigants may appeal only a handful of interlocutory issues, such as preliminary injunctions and class certification. But many cases also involve other issues that either party may wish to challenge when an interlocutory appeal brings them before an appellate court.

The Private Securities Litigation Reform Act (PSLRA) establishes a process for appointing the lead plaintiff in securities class actions. The statute is silent, however, on the evidentiary standard governing challenges to a presumptive lead plaintiff’s adequacy. Meanwhile, a petition for a writ of mandamus is one of the few vehicles for obtaining immediate appellate review of an otherwise unreviewable interlocutory ruling—such as an order appointing a lead plaintiff. But it is considered a “drastic and extraordinary” remedy reserved for cases where a petitioner’s right to relief is “clear and indisputable.”In In re Crain Walnut Shelling, F.4th, No. 25-5435, 2026 WL 1252327 (9th Cir. May 7, 2026), the Ninth Circuit denied a mandamus petition but used the opportunity to settle a question that no circuit had definitively addressed—the standard of proof for rebutting whether a presumptive lead plaintiff is adequate. The Court’s decision clarifies standards governing securities litigation while offering insight into how it analyzes whether mandamus relief should be granted.Preponderance of the evidence governs lead plaintiff challengesA district court initially found that Crain Walnut had established it should presumptively be the lead plaintiff in a putative securities class action, noting Crain’s asserted $49 million in losses dwarfed another potential lead plaintiff’s $12 million. But the district court allowed discovery into Crain’s adequacy, and that discovery “proved problematic.” Crain Walnut’s CEO stated in his deposition that he would refuse to produce financial records, and the company offered inconsistent facts about its organizational structure. The district court ultimately concluded that Crain’s presumptive adequacy to be lead plaintiff had been rebutted and appointed a different lead plaintiff.The district court reached that conclusion based on its view of the PSLRA’s standard of proof for rebutting the adequacy of a presumptive lead plaintiff. The PSLRA does not specify a specific evidentiary standard, stating only that the presumption may be rebutted “upon proof.” The district court adopted a lowered “genuine and serious doubt” standard drawn from language in two prior Ninth Circuit cases.The Ninth Circuit rejected that approach, holding that the preponderance of the evidence standard applied. The Court rested its conclusion on three pillars. First, the Supreme Court has long recognized preponderance of the evidence as the default in civil litigation, most recently in E.M.D. Sales, Inc. v. Carrera, 604 U.S. 45 (2025). Second, the Ninth Circuit has held that “adequacy” in class actions under Rule 23 is governed by the preponderance standard, and the PSLRA’s adequacy standard is the same. Third, in balancing the interests of the parties, the lead plaintiff determination is procedural, affecting only how claims are processed, and the preponderance standard “allows both parties to share the risk of error in roughly equal fashion.”Absence of clear error delivers the “mortal blow” in a mandamus petitionAlthough the Court denied the writ, the opinion offers insight into how the Ninth Circuit analyzes mandamus petitions.The panel applied the Ninth Circuit’s five-factor test from Bauman v. U.S. District Court, 557 F.2d 650 (9th Cir. 1977), beginning with the third factor—whether the district court’s order was clearly erroneous—“because such analysis may be dispositive.” The clear error standard is “significantly deferential” and requires a “definite and firm conviction that a mistake has been committed.”The Court found that the district court’s application of the wrong evidentiary standard “would have amounted to clear error” had it relied solely on that standard. But the district court had reasoned in the alternative (in an order denying reconsideration) that Crain Walnut’s presumption was rebutted even under the correct preponderance standard. The Ninth Circuit concluded that alternative ruling was not clearly erroneous given evidence undermining Crain Walnut’s credibility.Even though the third factor delivered the “mortal blow,” the Court addressed the remaining factors per Bauman’s guidance. The first and second factors, which assess whether the petitioner has an adequate alternative remedy, favored mandamus. Because interlocutory appeals are unavailable for orders designating a lead plaintiff, the Ninth Circuit has consistently recognized that mandamus is the only realistic avenue for review.The fourth and fifth factors are typically “mutually exclusive.” The fourth—whether the error below is “oft-repeated”—was not met because Crain Walnut cited no cases showing courts routinely apply the wrong standard. The fifth factor, however, favored mandamus because no circuit court had “definitively” established the standard of proof.Notably, even while denying relief (and acknowledging that the lack of authority favored granting the petition), the Court took the opportunity to settle the standard of proof question, demonstrating that denied petitions can still shape the law.

No Writ, New Law: Ninth Circuit Uses Denied Mandamus Petition to Settle PSLRA Lead Plaintiff Rebuttal Standard 

Rianna Hidalgo

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No Writ, New Law: Ninth Circuit Uses Denied Mandamus Petition to Settle PSLRA Lead Plaintiff Rebuttal Standard

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For purposes of diversity jurisdiction under 28 U.S.C. § 1332, is a federally chartered corporation (which is not incorporated in any state) a citizen of the state where it has its principal place of business? In Schneiderman v. American Chemical Society, 172 F.4th 158 (2d Cir. 2026), a divided Second Circuit panel said no, holding that such a corporation has no citizenship at all for purposes of § 1332. Schneiderman creates a split with the Fourth Circuit (in Navy Federal Credit Union v. LTD Financial Services, LP, 972 F.3d 344 (4th Cir. 2020)) and has significant implications for any litigant seeking to bring—or to defeat—a diversity action involving a federally chartered entity. Arnold Schneiderman, a New York citizen, sued the American Chemical Society (ACS), a federally chartered corporation with its principal place of business in D.C., for disability discrimination under state law. The district court dismissed for lack of jurisdiction, concluding that Schneiderman had failed to establish diversity of citizenship.At issue was § 1332(c)(1), which provides that “a corporation shall be deemed to be a citizen of every State and foreign state by which it has been incorporated and of the State or foreign state where it has its principal place of business.” The puzzle: Should the word “and” in § 1332(c)(1) be construed to join independent clauses disjunctively, so a corporation is deemed to be a citizen of the state where it principally does business, regardless of whether it has been incorporated by any state? Or should the “and” be read as a correlative conjunction, so a corporation is deemed to be a citizen not only of its state of incorporation, but also of the state where it has its principal place of business—thus rendering the provision inapplicable to a corporation that is not incorporated by any state? The Second Circuit adopted the second reading. Writing for the majority, Judge Raggi (joined by Judge Merriam) observed “textual ambiguity” in “how the word ‘and’ combines § 1332(c)(1)’s principal-place-of-business provision with its state-of-incorporation provision.” Schneiderman, 172 F.4th at 168. To resolve this textual ambiguity, the majority turned to statutory context and legislative history:<ul><li>Textual context. Judge Raggi emphasized that the word “every” in “every State … by which [a corporation] has been incorporated,” combined with the present-perfect tense “has been incorporated,” presupposes that the corporation in question has in fact been incorporated by at least one state.</li><li>Broader statutory context. The majority observed that courts have long understood § 1332(c)(1)’s two clauses to confer “dual citizenship” on state-incorporated corporations, thereby narrowing diversity jurisdiction, not expanding it (as construing “and” disjunctively would do for federally chartered corporations). Judge Raggi also pointed to Congress’s repeated enactment of targeted statutes expressly identifying specific federally chartered corporations as state citizens—legislation that would be unnecessary if § 1332(c)(1) already did the work.</li><li>Legislative history. The majority explained that legislative history indicated “the singular concern prompting § 1332(c)(1) was controlling growth in the federal courts’ diversity docket.” Id. at 182. Reading “and” disjunctively would not comport with this purpose.</li></ul>The majority thus concluded § 1332(c)(1) identifies state citizenship by reference to a corporation’s principal place of business only for corporations incorporated by a state or a foreign state, not for federally chartered corporations. Judge Menashi dissented, reasoning that the statutory text “straightforwardly” deems a federally chartered corporation a citizen of the state where it has its principal place of business and that the two clauses of § 1332(c)(1) are structurally independent, with each clause providing a separate basis for conferring citizenship. Id. at 191 (Menashi, J., dissenting). He also opined that, even if § 1332(c)(1) did not apply to a federally chartered corporation, ACS would still be a citizen of D.C. under the common-law “localization doctrine,” pursuant to which some courts have deemed federally chartered corporations with activities confined to a single state to be citizens of that state. (The majority had declined to reach the localization issue because Schneiderman had expressly waived it as a basis for jurisdiction here.)Moving forward, plaintiffs suing federally chartered corporations in the Second Circuit may not rely on § 1332 as a basis for jurisdiction. But while that statutory door may be closed, plaintiffs may still try to invoke the localization doctrine, an issue the Second Circuit has not yet addressed definitively.

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Alison H. Hung

Alison Hung

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In Jules v. Andre Balazs Properties, 608 U.S. ___, 2026 WL 1336216 (U.S. May 14, 2026), the Supreme Court resolved a circuit split that had arisen under the Federal Arbitration Act (FAA), 9 U.S.C. § 1 et seq. In a brief opinion, the Court unanimously held that if a federal court has stayed claims in a pending action under the FAA, it maintains jurisdiction to later confirm or vacate any resulting arbitral award. While the opinion is straightforward, the underlying facts reflect a quiet irony that shows how a plaintiff’s initial strategy can potentially backfire.The factsAdrian Jules worked at the Chateau Marmont Hotel in Los Angeles. When he accepted the job, he signed an agreement that any disputes arising out of his employment would be resolved by arbitration. Notwithstanding the agreement, when his employment ended, he filed an unlawful-discrimination suit in federal court.After the employer invoked the arbitration clause, the district court stayed the federal proceedings under Section 3 of the FAA pending arbitration. Jules went to arbitration. He lost—on every claim—and the arbitrator awarded roughly $34,500 in sanctions against him for litigation misconduct, including his refusal to participate in the arbitral hearing on his own claims.The employer returned to the same federal district court to confirm the award. Jules opposed confirmation and moved to vacate, arguing that under Badgerow v. Walters, 596 U.S. 1 (2022), the district court lacked jurisdiction: the parties were not diverse, the amount in controversy was below $75,000, and the confirm-or-vacate motions presented no independent federal question because the FAA does not itself create federal jurisdiction.It was a legally serious argument. But it ran headlong into an obstacle that Jules himself had created.The jurisdictional reasoningIn Badgerow, the Court had held that a party seeking to confirm or vacate an arbitral award in a freestanding federal action—filed for that purpose alone—cannot manufacture jurisdiction by looking through the FAA motion to the underlying dispute. Without diversity or a federal question on the face of the motion, there is no federal jurisdiction.That rule would have protected Jules—if he had honored his arbitration agreement. Had Jules proceeded directly to arbitration as the agreement required, the employer’s subsequent motion to confirm the award in federal court would have been exactly the kind of freestanding action Badgerow forecloses. No diversity, no federal question, no federal forum. The employer’s enforcement options would have been limited to state court.But Jules didn’t honor the agreement. He filed in federal court, establishing federal question jurisdiction under 28 U.S.C. § 1331. And the stay did not extinguish that jurisdiction—it merely paused the proceedings. When the parties returned with their confirm-or-vacate motions, the court looked not at those motions in isolation, but at the suit already before it: the one Jules had filed. The federal court’s jurisdiction carried through to the end.The irony is pointed. By ignoring his arbitration agreement and filing in federal court, Jules handed the employer a federal enforcement mechanism that would not have existed had he simply complied with the agreement in the first place. The federal forum he chose to pursue his claims became the federal forum used to confirm the award against him. The rope, so to speak, was Jules’.What the Court heldThe Court confirmed that a federal court that stays claims under Section 3 of the FAA retains jurisdiction to confirm or vacate the resulting award under Sections 9 and 10. Because the court has jurisdiction over the original claims and does not lose that jurisdiction while the case is stayed pending arbitration, it retains jurisdiction to determine whether the arbitral award resolving those claims is valid and should be confirmed. The Badgerow rule applies only to freestanding confirm-or-vacate actions with no pre-existing federal lawsuit.The decision reinforces Smith v. Spizzirri, 601 U.S. 472 (2024), which held that Section 3 requires a stay rather than dismissal. The Court’s decision in Jules makes explicit what Spizzirri implied: the mandatory stay exists so that the district court can superintend the arbitration all the way through, including at the confirm-or-vacate stage.The takeawayJules is a tidy opinion resolving a circuit split—the Second, Third, and Seventh Circuits had reached the result the Court affirmed; the Fourth Circuit had disagreed. But there was a sting in its facts. For counsel advising clients who are tempted to file suit in federal court despite a broad arbitration clause, the case is a useful reminder: that decision has consequences that extend beyond the threshold question of arbitrability. A federal filing ensures that whatever comes out of that arbitration can be enforced—or challenged—in the same federal court. Choose your forum carefully, because it may end up being your opponent’s forum too.

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Of Counsel

Lauren Pardee Ruben

Lauren Ruben

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The Jurisdictional Rope He Handed Them: Jules v. Andre Balazs Properties

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The Jurisdictional Rope He Handed Them: Jules v. Andre Balazs Properties

When may a state-law suit against a military contractor premised on the contractor’s activities in a war zone proceed? The Supreme Court recently addressed this issue in Hencely v. Fluor Corporation, 608 U.S. ---- , 146 S. Ct. 1086 (2026). Over a dissent, the Court rejected the “battlefield preemption” doctrine—a sweeping rule that had effectively insulated contractors from state-law tort claims arising from conduct in war zones—and held that federal law does not preempt such tort claims where the conduct complained of was neither required nor authorized by the federal government. Hencely thus reopens the courthouse doors to certain state-law claims against military contractors by jettisoning a categorical rule for a conduct-specific inquiry—one that turns on whether the contractor was truly following orders when engaging in the conduct at issue.In the underlying suit, Fluor (a military contractor) argued that the state-law tort claims asserted by Hencely (a former Army Specialist) were preempted. Hencely had suffered permanently disabling injuries in a suicide-bomb attack at a military base in Afghanistan; the attacker was a Taliban operative working for the contractor. Seeking to recover damages for his injuries, Hencely sued Fluor for negligently hiring and supervising the attacker. Hencely claimed, and the U.S. military agreed, that Fluor’s conduct “violated instructions the military had given it as a condition of operating on the base.” Id. at 1091. Applying the “battlefield preemption” rule, the Fourth Circuit held that Hencely’s suit was preempted.The Supreme Court disagreed. It repudiated any blanket preemption of state-law claims against contractors based solely on the fact that the claims might implicate a “uniquely federal interest,” such as military operations. Instead, the Court clarified that the key question is whether the contractor’s conduct was authorized by the federal government. Writing for the majority, Justice Thomas explained that, under the Court’s precedents, preemption requires a significant conflict between that uniquely federal interest and state law—here, a showing that the state-law suit against the contractor would challenge the military’s decisions on the battlefield. But if the contractor’s conduct was not authorized by, or was even contrary to, military instructions, there would be no conflict.  The Court stressed that “there is no federal pre-emption in vacuo, without a constitutional text or a federal statute to assert it.” Id. at 1093. Fluor had not identified any federal statutory or constitutional provision expressly preempting the suit. (The Court had previously held that the Federal Tort Claims Act’s combatant-activities exception does not apply to suits against federal contractors.) And the Court was not persuaded by Fluor’s two other attempts to justify preemption.  First, the Court cabined the reach of Boyle v. United Technologies Corp., 487 U.S. 500 (1988), which the Fourth Circuit and other lower courts had interpreted and extended to require preemption of all claims against contractors under the military’s authority. The Court explained that Boyle’s reasoning did not support this blanket preemption rule: “Boyle created a defense for contractors only insofar as the suit challenged a decision of the Government that the contractor merely carried out.” Hencely, 146 S. Ct. at 1097.  Second, the Court rejected the notion that the U.S. Constitution’s “structure” implicitly preempted any suit against a military contractor operating in a war zone. Fluor had argued that the Constitution’s grant of broad and sweeping war powers exclusively to the federal government justified preemption of state laws that might intrude on the exercise of those federal powers. But the Court concluded that this principle was unsupported by its precedents.  Justice Alito, joined by Chief Justice Roberts and Justice Kavanaugh, dissented. They warned that the majority’s approach would invite state judges and juries to second-guess military decisions (encroaching on “a domain of exclusive federal authority”), substantially interfere with the federal government’s ability to wage war, generate “vexing” choice-of-law problems, and lead to discovery into sensitive military policy decisions. Id. at 1107 (Alito, J., dissenting). And the dissent was especially critical of the majority’s rejection of constitutional structure as a ground for preemption, citing a host of precedents in which the Court had relied on precisely that ground.Given the discussion of constitutional structure as a basis supporting preemption in the Hencely majority and dissent, it remains to be seen whether constitutional structure can justify preemption outside the military context. But what is clear from Hencely is that, moving forward, military contractors likely must do more than simply show that their conduct arises from wartime activities to invoke federal preemption as a shield against state-law suits.

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No Orders, No Preemption: The Supreme Court Rejects “Battlefield Preemption” for Military Contractors in Hencely

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No Orders, No Preemption: The Supreme Court Rejects “Battlefield Preemption” for Military Contractors in Hencely

Can a company sue a competitor under the Lanham Act for falsely advertising that its product was first to market? According to the Ninth Circuit, the answer is no. In Vericool World, LLC v. Igloo Products Corp., No. 24-192 (9th Cir. May 6, 2026), a divided panel held that false first-to-market claims are not actionable under § 43(a)(1)(B) of the Lanham Act because they do not misrepresent a product’s “nature, characteristics, [or] qualities.” Background: Vericool and Igloo both manufacture and sell biodegradable alternatives to Styrofoam coolers. Vericool released its first fully biodegradable cooler, made of molded plant pulp, in 2017 and entered the consumer market a year later with the release of its Ohana cooler. Igloo entered the market in 2019 with its Recool product, also made of molded plant pulp, and advertised it as “the world’s first eco sensitive cooler, made from 100% biodegradable materials.” Vericool sued under § 43(a)(1)(B) of the Lanham Act, which provides a cause of action against statements in commercial advertising that “misrepresent[] the nature, characteristics, qualities, or geographic origin” of goods, services, or commercial activities. Vericool argued that Igloo’s false first-to-market claim robbed Vericool of the “cachet” of being perceived as the innovator. The district court granted summary judgment for Igloo, holding that the Lanham Act does not create a cause of action for false claims of inventorship. The Majority: The Ninth Circuit affirmed, holding that false-advertising claims based purely on statements about which product was first on the market are not actionable under the Lanham Act. A product “characteristic” under the statute must be an observable aspect of the tangible product itself, not any ideas or communications the product embodies or contains. Writing for the majority, Judge R. Nelson relied on cases tracing the boundary between unfair-competition law and intellectual-property law. In its 2003 decision in Dastar Corp. v. Twentieth Century Fox Film Corp., the Supreme Court considered what conduct is actionable under a different provision of the Lanham Act, § 43(a)(1)(A), which addresses statements that cause confusion about the “origin, sponsorship, or approval” of goods. The Supreme Court held that “origin of goods” in that provision refers to the producer of the tangible product sold in the marketplace, not the person who originated the ideas or communications embodied in that product. And it cautioned against extending the Lanham Act “into areas traditionally occupied by patent or copyright.” In Sybersound Records, Inc. v. UAV Corp., the Ninth Circuit extended Dastar’s reasoning from § 43(a)(1)(A) to false-advertising claims under § 43(a)(1)(B), holding that “nature, characteristics, and qualities” are “more properly construed to mean characteristics of the good itself.” Applying that framework, the majority concluded that no observable quality of the coolers revealed whether they were the first to be sold in the market. A consumer cannot determine the truth or falsity of that claim “without reference to additional knowledge about the market as a whole.” Allowing such a claim, the court concluded, would let Vericool use the Lanham Act to vindicate an economic interest—being a first mover—that Congress chose to protect exclusively through patent law. The panel did leave a door open. A “first” claim might be actionable if it implies something false about a product attribute. For example, if consumers knew Vericool’s cooler existed and then saw Igloo claim the first biodegradable cooler, they might infer that Vericool’s product was not actually biodegradable. But because Vericool had not litigated the case on that theory below, the panel declined to review the issue on appeal. The Dissent: Judge Bumatay dissented, stressing that the text of the Lanham Act does not limit “characteristics” to just tangible or observable ones. He emphasized that “nature,” “characteristics,” and “qualities” are broad, overlapping, and mutually reinforcing, suggesting Congress intended to “cover the field of possible misrepresentations” about goods and services. On precedent, the dissent questioned the majority’s reliance on Dastar, which addressed false-association claims under § 43(a)(1)(A), not false-advertising claims under § 43(a)(1)(B). Judge Bumatay also rejected the majority’s patent-overlap concern, reasoning that overlap with one element of the patentability requirements should not be enough to limit the Lanham Act’s scope. Takeaways: The decision draws an important line in Ninth Circuit false-advertising law. A plaintiff challenging “first,” “original,” “innovative,” or similar advertising must connect the statement to a tangible product attribute: composition, performance, biodegradability, or something comparable. Falsity alone is not enough.

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Split Ninth Circuit Panel Shuts the Door on “First-to-Market” Claims Under the Lanham Act

Urias-Orellana v. Bondi, 607 U.S. ___, 146 S.Ct. 845 (2026)For immigration practitioners, the message from the Supreme Court’s unanimous decision in Urias-Orellana v. Bondi is clear: winning your asylum case at the administrative level is critical. By resolving a circuit split and holding that the deferential substantial-evidence standard applies to the agency’s persecution determination in its entirety—not just to underlying factual findings—the Court clarified that appellate courts have limited grounds for reexamining asylum determinations on appeal.<h4>Background</h4>The petitioners—a Salvadoran family of three—sought asylum after entering the United States without authorization in 2021. The lead petitioner testified that a hitman had targeted his family, that he had been forced to relocate repeatedly within El Salvador, and that he had been threatened and physically assaulted. Despite crediting this testimony, the Immigration Judge (IJ) concluded that the facts fell short of establishing “persecution” or a “well-founded fear” of persecution under the Immigration and Nationality Act (INA). The Board of Immigration Appeals (BIA) affirmed, and the First Circuit upheld the agency’s determination under the substantial-evidence standard.The Supreme Court granted certiorari to resolve a split on the appropriate standard of review for evaluating persecution determinations.<h4>The Court’s Analysis</h4>Writing for a unanimous Court, Justice Jackson held that 8 U.S.C. § 1252(b)(4)(B)—which makes agency “findings of fact” conclusive unless “any reasonable adjudicator would be compelled to conclude to the contrary”—requires substantial-evidence review of both the underlying factual findings and the application of the persecution standard to those facts.The opinion traces this conclusion through two steps. First, the Court pointed to INS v. Elias-Zacarias, 502 U.S. 478 (1992), where the Court had already applied substantial-evidence review to the agency’s application of the persecution standard. Second, the Court found that when Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) and added § 1252(b)(4)(B), it effectively codified Elias-Zacarias. Indeed, the statutory text—providing that findings of fact are conclusive unless a reasonable adjudicator would be compelled to conclude otherwise—closely mirrors the Elias-Zacarias formulation. Given that the IIRIRA generally aimed to restrict (not expand) judicial review of immigration determinations, the Court found it incongruous to read the new provision as opening the door to de novo review of persecution determinations.The Court also addressed petitioners’ reliance on cases in which the Court had held that certain mixed questions of law and fact qualify as “questions of law” reviewable under § 1252(a)’s jurisdiction-stripping provisions. Justice Jackson drew a clean distinction: § 1252(a) governs whether courts can review a removal order at all; § 1252(b)(4)(B) governs the manner of that review. Whether an issue is characterized as one of law for jurisdictional purposes says nothing about the type of review appellate courts must afford to that issue under other provisions of the INA.The Court briefly addressed Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), which overruled Chevron and eliminated judicial deference to agency interpretations of ambiguous statutes. Petitioners had argued that Loper Bright required de novo review of the persecution determination. The Court disagreed, dispatching the argument in a footnote: Loper Bright does not apply when a statute “mandates deferential review or otherwise delegates authority to an agency consistent with constitutional limits.”<h4>Practical Takeaways</h4>Urias-Orellana has important implications for appellate practitioners handling immigration matters. Because the substantial-evidence standard is inherently deferential, it is critical to build the most complete record possible at the agency level. Evidence that bears on the persecution determination—medical, psychiatric, or psychological documentation of harm; testimony establishing the geographic scope of a threat; corroboration of a well-founded fear of future persecution—must be developed and presented before the IJ. Appellate courts, now uniformly bound to apply substantial-evidence review, have limited ability to correct course when the agency record is thin.One important caveat: petitioners did not challenge the standard of persecution the agency applied, i.e., that death threats are sufficient to establish past persecution only when they are so menacing as to cause significant actual suffering or harm. The solicitor general agreed with petitioners that purely legal questions about the appropriate standard of persecution are subject to de novo review.

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Supreme Court Settles Circuit Split on Standard of Review for Asylum Persecution Determinations

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For immigration practitioners, the message from the Supreme Court’s unanimous decision in Urias-Orellana v. Bondi is clear: winning your asylum case at the administrative level is critical. 

Supreme Court Settles Circuit Split on Standard of Review for Asylum Persecution Determinations

Arbitration doctrine is anchored in the Federal Arbitration Act’s core mandate: arbitration agreements must be enforced according to their terms. At the same time, like any contract, arbitration agreements may be challenged on generally applicable grounds, such as unconscionability or waiver. In a recent decision, the Ninth Circuit rejected an expansive approach that effectively invalidated numerous arbitration agreements at once, holding that courts may not rely on an equitable preclusion doctrine to sidestep individualized determinations of whether an agreement should be enforced.In O'Dell v. Aya Healthcare Servs., Inc., 171 F.4th 1173 (9th Cir. 2026), the court addressed whether individual arbitrators’ prior determinations that an arbitration agreement was unconscionable could be used to block the enforcement of other arbitration agreements. The answer was no. The Ninth Circuit held that applying “non-mutual offensive collateral estoppel” to prevent the enforcement of individual arbitration agreements is incompatible with the Federal Arbitration Act (FAA).The case arose from a wage-and-hour dispute brought by travel nurses under the Fair Labor Standards Act. Four named plaintiffs challenged their arbitration agreements, each of which  contained a clause requiring threshold questions of whether the agreements were valid and enforceable to be decided by an arbitrator. The claims proceeded in four separate arbitrations and produced mixed results: two arbitrators upheld the agreements while two found the agreements unconscionable.  The district court treated the unconscionability findings as dispositive beyond those individual proceedings. Invoking “non-mutual offensive issue preclusion”—a doctrine that can bar a defendant from relitigating an issue previously decided against it—the district court held that the unconscionability findings precluded the arbitration of disputes with respect to roughly 250 other employees who had opted into the case.The Ninth Circuit reversed. It held that “the FAA does not permit the application of non-mutual offensive collateral estoppel that would result in the effective invalidation of arbitration agreements.” The courts’ reasoning rested on several interrelated principles. First, the court focused on the language of the FAA, which requires courts to enforce arbitration agreements except on “such grounds as exist at law or in equity for the revocation of any contract.” The court interpreted this “revocation” language narrowly, reasoning that while traditional contract defenses, like unconscionability or fraud, fall within this category, non-mutual offensive collateral estoppel does not. The court concluded that “[a]n equitable issue-preclusion doctrine (of the offensive non-mutual variety) is not a ‘generally applicable contract defense.’” It did not matter that the dispute implicated the enforceability of the contract (i.e., unconscionability) because the court did not see the doctrine as being about “contracts or contract defenses.”Second, the court emphasized that applying non-mutual offensive issue preclusion would “violate the principle of consent” incorporated by the FAA. Focusing on the principle that arbitration is fundamentally a matter of consent, the court reasoned that precluding arbitration that individual parties had agreed to—“because a different arbitrator in a different proceeding had concluded that an agreement between different parties was unconscionable”—would render individual consent meaningless.Finally, the court emphasized the individualized nature of arbitration. A “hallmark” of arbitration, it explained, is one-on-one adjudication based on the parties’ individual agreements. Allowing an arbitrator’s unconscionability ruling to bind the enforceability of hundreds of agreements would undermine that structure. In the court’s view, the district court’s approach “effectively transformed the parties’ individualized proceedings into a bellwether-type class action.”It is unclear exactly how far O’Dell extends, but the decision underscores that challenges to arbitration agreements likely must proceed on an individualized basis and suggests there are limits to the ways equitable doctrines can be applied to preclude their enforcement.

One at a Time: The Ninth Circuit Rejects the Application of Non-Mutual Offensive Collateral Estoppel for Invalidating Arbitration Agreements

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One at a Time: The Ninth Circuit Rejects the Application of Non-Mutual Offensive Collateral Estoppel for Invalidating Arbitration Agreements

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