How Long Does a California Civil Appeal Take?

Based on the 2017 California Court Statistics Report, the statewide median time from the notice of appeal in a civil case to the filing of the Court of Appeal’s opinion is 506 days (about 17 months), with 90% of appeals processed within 842 days (28 months). But the median times differ substantially between California’s six appellate districts, and even between divisions within districts. Currently, the fastest California appellate court is Division 5 of the Second District in Los Angeles, with a median time of 404 days to process a civil appeal from the notice of appeal to the filing of the decision. Ninety percent of all civil appeals in Division Five are processed in 622 days.

At the other end of the spectrum is currently the Sixth District in San Jose, with a median time of 731 days (a little over two years) to process a civil appeal from the notice of appeal to the filing of the decision. Ninety percent of all civil appeals in the Sixth District are processed in 1,168 days (a little over 3 years).

The complete 2017 Court Statistics can be found here.

And while we’re discussing statistics, what are your chances for success on appeal? For civil appeals terminated by a written opinion in FY 2015-16, 17% were reversed. And if you decide to seek review in the California Supreme Court, less than 4% of petitions for review were granted by the Supreme Court in 2015-16.

Robert M. Palumbos Appointed Co-Chair of the Philadelphia Bar Association Appellate Courts Committee

Rob PalumbosDuane Morris partner Robert M. Palumbos has been appointed co-chair of the Philadelphia Bar Association’s Appellate Courts Committee.  Mr. Palumbos’ practice includes appellate and commercial litigation, and his appellate work covers a wide range of legal areas, such as RICO, corporate governance, administrative agency law, real estate and insurance coverage.

Mr. Palumbos is also vice chair of the Pennsylvania Supreme Court’s Appellate Court Procedural Rules Committee.

First Circuit Rejects Seventh Circuit’s Approach to Rejection of Trademark Licenses: Licensees Retain No Post-Rejection Trademark Rights

In one of the first decisions issued this year by the United States Court of Appeals for the First Circuit, the court addressed an issue of first impression. In Mission Products Holdings, Inc. v. Tempnology, LLC, n/k/a Old Cold LLC, the First Circuit held that the omission of trademarks from the definition of “intellectual property” in Section 101(35A) of the Bankruptcy Code, as incorporated by Section 365(n), leaves a trademark licensee with nothing more than a claim for damages upon the rejection of its license under Section 365(a). In so holding, the First Circuit joined the majority of bankruptcy courts that have addressed the issue and rejected the view adopted by the United States Court of Appeals for the Seventh Circuit.

To read the full text of this Alert, please visit the Duane Morris website.

Supreme Court to Review Sales Tax Physical Presence Standard; More States Pass Reporting Laws on Remote Sellers

The Supreme Court of the United States has accepted for review the case of South Dakota v. WayfairInc., et al, in which the state of South Dakota has challenged the continued viability of its 1992 Quill Corp. v. North Dakota decision that required some physical presence of a remote seller in a state before a state could impose its sales tax collection obligations on the seller. The Supreme Court in 1992 held it was up to Congress to change the test. In this new case, the South Dakota Supreme Court held that South Dakota’s attempt to legislatively override Quill was in violation of the law. By hearing the case, the U.S. Supreme Court will now decide whether to change the law or continue to allow the physical presence standard to stand, until and unless the Congress decides to change it. This decision could have far-reaching effects on interstate commerce, especially impacting internet sellers.

To read the full text of this Alert, please visit the Duane Morris website.

U.S. Supreme Court Denies Review in Title VII Sexual Orientation Case

Last month, on December 11, 2017, the U.S. Supreme Court denied the petition for certiorari in Evans v. Georgia Regional Hospital et al., a high-profile case asking the Justices to decide whether the prohibition in Title VII of the Civil Rights Act of 1964 against discrimination “because of . . . sex” encompasses discrimination based on sexual orientation. The denial of certiorari means that Title VII’s protections against workplace discrimination will remain subject to conflicting interpretations and enforcement from coast to coast. Continue reading U.S. Supreme Court Denies Review in Title VII Sexual Orientation Case

When Tolling Ends for Class Members: The Seventh Circuit Expands the Scenarios When Class Members Lose the Benefits of Tolling

Class actions are vexing for defendants. The exposure can be large and the litigation can become very complex. One way to defeat a class action is on statute of limitations grounds. However, in the seminal case on statutes of limitations in the class action context, American Pipe & Construction Co. v. Utah, 414 U.S. 538 (1974), the Supreme Court held when a plaintiff files a complaint on behalf of a proposed class, and where certification is denied because of the plaintiff’s failure to demonstrate that “the class is so numerous that the joinder of all members is impracticable,” the statute of limitations for the claim is tolled for each member of the class. Continue reading When Tolling Ends for Class Members: The Seventh Circuit Expands the Scenarios When Class Members Lose the Benefits of Tolling

Ninth Circuit Concludes Cosmetology Students Are Not Employees of School

On December 18, 2017, the Ninth Circuit held in Benjamin v. B&H Education, Inc., F.3d, No. 15-17147, 2017 WL 6460087, that cosmetology students were not employees of their schools. In doing so, the Ninth Circuit joined the Second and Eleventh Circuits in adopting the primary beneficiary test to determine whether students are employees. The Benjamin case was the first to reach a decision from the Ninth Circuit and joined many other jurisdictions that had previously dismissed virtually identical cases (including a recent affirmance of summary judgment by the U.S. Court of Appeals for the Seventh Circuit).

The Benjamin plaintiffs were former students who alleged that under federal, California and Nevada law, they should have been paid wages as employees for the time they spent practicing skills in the schools’ clinic classroom and performing concierge duties (e.g., cleaning, sanitizing, greeting clients, recommending hair products, etc.). U.S. District Judge Vince Chhabria for the Northern District of California granted summary judgment for the school, holding that “Plaintiffs were not employees under federal or state law because Plaintiffs were the primary beneficiaries of the educational program and they had not shown that [the cosmetology school] subordinated the educational function of its clinics to its own profit-making purposes.” [Note: Duane Morris represented B&H Education in this case in the Northern District of California.]

To read the full text of this Alert, please visit the Duane Morris website.

Pennsylvania Superior Court Confirms that Fair Share Act Applies in Asbestos and Other Strict-Liability Cases and Requires Apportionment of Liability Among Defendants and Settled Tortfeasors Regardless of Bankruptcy Status

In Roverano v. John Crane, Inc., 2017 PA Super 415 (Dec. 28, 2017), the Pennsylvania Superior Court confirmed that Pennsylvania’s Fair Share Act, which prescribes how liability is allocated among multiple defendants, applies to strict-liability personal injury claims arising from asbestos exposure. [Note: Duane Morris was retained as appellate counsel and briefed and argued the appeal for one of the prevailing parties.] This is an important result for defendants in asbestos and products liability litigation throughout Pennsylvania.

To read the full text of this Alert, please visit the Duane Morris LLP website.

 

District Courts Can Extend Time to File Notices of Appeal Beyond Time Allowed in the Federal Rules

The Supreme Court issued its first opinion of the October 2017 sitting, Hamer v. Neighborhood Housing Services of Chicago, No. 16-658, 2017 WL 5160782 (Nov. 8, 2017), early last month. We previously previewed this case when the Supreme Court first granted a writ of certiorari.[1] As expected, the Supreme Court clarified an important issue regarding time limits for filing notices of appeal in civil cases. Specifically, the Supreme Court held that district courts are allowed to extend the time for filing a notice of appeal beyond the thirty-day limit prescribed in the Federal Rules of Appellate Procedure because the deadline is only set by court rule, not statute, and thus is not jurisdictional.

The Supreme Court used Hamer to resolve a circuit split over whether Federal Rule of Appellate Procedure 4(a)(5)(C) is jurisdictional or whether it is a mandatory claim-processing rule. Jurisdictional time limits “deprive[] a court of adjudicatory authority over the case, necessitating dismissal—a ‘drastic’ result.” Hamer, slip op. at 2 (citing Henderson v. Shinseki, 562 U.S. 428, 435 (2011)). These time limits are “not subject to waiver or forfeiture and may be raised at any time in the court of first instance and on direct appeal.” Id. at 2-3 (footnote omitted) (citing Kontrick v. Ryan, 540 U.S. 443, 455 (2004)). Indeed, courts are independently obligated to consider jurisdictional timeliness rules, even when not raised by either party. Id. at 3 (citing Shinseki, 562 U.S. at 434). Mandatory claim-processing rules, by contrast, can be waived or forfeited if a party fails to object to an untimely filing. Id. However, “[i]f properly invoked, mandatory claim-processing rules must be enforced.” Id. (citing Manrique v. United States, 137 S. Ct. 1266, 1271-72 (2017)). Continue reading District Courts Can Extend Time to File Notices of Appeal Beyond Time Allowed in the Federal Rules

Duane Morris Partner Paul Killion to Present at California State Bar’s Inaugural Appellate Summit

Duane Morris’ San Francisco partner Paul Killion will be speaking October 14, 2017, at the inaugural Appellate Summit organized by the newly reconstituted California State Bar Litigation Section’s Committee on Appellate Courts.

Paul’s panel will address “When Things Go Wrong: Challenges and Strategies for Appeals from Jury Trials.” His co-panelists are California Court of Appeal Justice Kathleen Banke of the First District, Division One, and Syda Cogliati, Senior Appellate Research Attorney for the Sixth District. Paul is an appellate specialist certified by the California Board of Legal Specialization.

Duane Morris is a sponsor of the Appellate Summit.

For more information and to register, visit the California State Bar website.