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Andrew Tauber

Andrew Tauber

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Appellate Briefs

Read appellate briefs authored by Andrew

Oral Argument Recordings

Listen to oral arguments by Andrew

Book
December 2013
Edited and authored by Mayer Brown lawyers, Bloomberg BNA’s Second Edition, Federal Appellate Practice book is the primary resource for fully understanding the federal appellate process.
Media Coverage
October 2012
For the Defense
A bylined article by Litigation & Dispute Resolution partner Andrew Tauber (Washington, DC) explains how to argue medical device preemption and discusses best practices and pitfalls to avoid.
Media Coverage
1 October 2012
Law360
Litigation & Dispute Resolution partner Andy Tauber (Washington, DC) is quoted in an article reporting that the Supreme Court declined to take up a challenge to the Fourth Circuit's finding that malfunctioning medical devices are in violation of federal law only if they do not meet performance standards established by the US Food and Drug Administration.
Legal Update
27 June 2012
Mayer Brown Legal Update

As the Supreme Court looks ahead to its next term, the Court granted certiorari in three cases of particular significance to employers. In these cases, the Court will address the impact of offers of judgment on federal wage and hour collective actions, the scope of vicarious liability for acts of supervisors under Title VII, and the type of equitable relief available to plan fiduciaries regarding the enforcement of reimbursement provisions.

Legal Update
22 June 2012
Mayer Brown Legal Update

In Apprendi v. New Jersey, 530 U.S. 466 (2000), the Supreme Court held that under the Sixth Amendment “any fact,” other than the fact of a prior conviction, that increases the penalty for a crime beyond the prescribed statutory maximum “must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at 490. On June 21, 2012, in Southern Union Co. v. United States, No. 11-94, the Supreme Court ruled that this constitutional right extends to criminal fines.

Legal Update
18 June 2012
Mayer Brown Legal Update
The outside-sales exemption of the Fair Labor Standards Act (“FLSA”) provides that an individual who is employed “in the capacity of outside salesman” is not entitled to overtime pay. See 29 U.S.C. § 207(a)(1); 29 U.S.C. § 213(a)(1).
Legal Update
19 April 2012
Mayer Brown Legal Update
When the United States Patent and Trademark Office (“PTO”) denies an application for a patent, the applicant may seek judicial relief in two different ways. The applicant may obtain review directly in the Federal Circuit (pursuant to 35 U.S.C. § 141) or, in the alternative, the applicant may file a civil action against the PTO in federal district court (pursuant to 35 U.S.C. § 145).
Legal Update
1 February 2012
Mayer Brown Legal Update
In Walker v. Medtronic, Inc., No. 10-2219, ___F.3d___ (January 25, 2012), the US Court of Appeals for the Fourth Circuit held that the Medical Device Amendments to the Food, Drug, and Cosmetic Act preempt state-law claims arising from the alleged malfunction of a Class-III medical device that had received premarket approval from the Food and Drug Administration and had complied with all requirements imposed by the agency.
Legal Update
24 June 2011
Mayer Brown Legal Update
In Stern v. Marshall, No. 10-179, the Supreme Court held that the Constitution does not permit non-Article III federal bankruptcy courts to enter final judgments on a debtor’s counterclaims when those claims are based solely on state law.
Legal Update
24 June 2011
Mayer Brown Legal Update
In a trilogy of closely watched cases, PLIVA, Inc. v. Mensing, No. 09-993, Activas Elizabeth, LLC v. Mensing, No. 09-1039, and Activas, Inc. v. Demahy, No. 09-1501, the Supreme Court held that the federal statutes and regulations governing the labeling of generic drugs preempt state-law failure-to-warn claims against generic drug manufacturers. The Court had previously held, in Wyeth v. Levine, 129 S. Ct. 1187 (2009), that failure-to-warn claims against brand-name drug manufacturers generally are not preempted.
Legal Update
17 June 2011
Mayer Brown Legal Update
SEC Rule 10b-5 prohibits “mak[ing] any untrue statement of a material fact” in connection with the purchase and sale of securities. 17 C.F.R. § 240.10b-5 (2010). In a 5-4 decision, the Supreme Court held in Janus Capital Group, Inc. v. First Derivative Traders, No. 09-525, that only an entity that has “ultimate authority” over an allegedly false statement can be held liable in a private action brought under Rule 10b-5. Slip op. 6. In so holding, the Court relied upon and reinforced its prior decisions in Central Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164 (1994), and Stoneridge Investment Partners, LLC v. Scientific-Atlanta, Inc., 552 U.S. 148 (2008).
Legal Update
10 June 2011
Mayer Brown Legal Update
In a decision that largely maintains the status quo but is nevertheless of considerable interest to patent holders and patent users, the Supreme Court held that to establish a patent-invalidity defense an alleged infringer must prove the patent’s invalidity by “clear and convincing” evidence. Today’s decision in Microsoft Corp. v. i4i Limited Partnership, No. 10-290, affirms the Federal Circuit’s long-standing interpretation of Section 282 of the Patent Act, 35 U.S.C. § 282, which states that “[a] patent shall be presumed valid” and that “[t]he burden of establishing invalidity . . . shall rest on the party asserting” the invalidity.
Legal Update
7 June 2011
Mayer Brown Legal Update
In a decision that could affect the numerous recipients of federal funding for research, the Supreme Court addressed the proper interpretation of the Bayh-Dole Act, 35 U.S.C. §§ 200 et seq., which allocates rights in inventions developed with federal funds. The Act allows recipients of federal research funding to retain title to inventions developed with that funding, provided certain conditions are met. The question presented in Board of Trustees of the Leland Stanford Junior University v. Roche Molecular Systems, Inc. was whether the Bayh-Dole Act automatically vested the recipient of federal funding with the rights to an invention developed by one of its employees using that funding. In a 7-2 decision today, the Court held that the Act does not automatically vest title to such inventions with the recipient of federal funding and that title instead remains with the original inventor.
Legal Update
1 June 2011
Legal Update
17 May 2011
Mayer Brown Legal Update
The Employee Retirement Income Security Act (ERISA), 29 U.S.C. §§ 1001 et seq., seeks to ensure that individuals receive accurate and understandable information regarding their rights and obligations under employee benefit plans.
Video
27 April 2011
Mayer Brown’s Supreme Court & Appellate practice is pleased to present “After the Argument: Assessing US Supreme Court Business Cases.” In this video series, we discuss the oral arguments in some of the important business cases currently pending before the US Supreme Court this Term. Each edition will include a summary of the questions presented to the Court, a recap of the oral argument (including questions asked and the tone of the Justices), and a discussion of how a decision might affect businesses.
Legal Update
23 February 2011
Mayer Brown Legal Update
The Outer Continental Shelf Lands Act (“OCSLA”) extends worker compensation benefits for “disability or death . . . resulting from any injury occurring as the result of operations conducted on the outer Continental Shelf.” 43 U.S.C. § 1333(b). On February 22, 2011, the Supreme Court granted certiorari in Pacific Operations Offshore, LLP v. Valladolid, No. 10-507, to resolve disagreement among the lower courts as to the scope of that provision.
Legal Update
11 January 2011
Mayer Brown Legal Update
When pharmacies fill a prescription, they record the name and address of the prescriber, the name and dosage of the drug, and the age and gender of the patient. Pharmacies sell this information to data-collection companies, which compile it into reports detailing individual prescribers’ prescription histories. Pharmaceutical companies then purchase these reports from the data-collection companies and use them to target their marketing efforts to the prescribers most likely to prescribe their drugs. Along with an increasing number of other states, the state of Vermont restricts this practice by banning the sale and use of prescriber-identifiable data for the marketing or promotion of pharmaceutical drugs unless the prescriber consents to the use of the data. Late Friday, the Supreme Court granted certiorari in Sorrell v. IMS Health Inc., No. 10-779, to decide whether Vermont’s prescriber-data law violates the First Amendment.
Legal Update
13 December 2010
Mayer Brown Legal Update
Under the Copyright Act’s first-sale doctrine, codified at 17 U.S.C. § 109(a), the owner of any particular copy “lawfully made under this title” may sell or otherwise transfer ownership of that copy without the authorization of the copyright owner. In Quality King Distributors, Inc. v. L’anza Research International, Inc., 523 U.S. 135 (1998), which involved domestically manufactured goods that were sold abroad and then imported back into the United States, the Supreme Court held that the first-sale doctrine is applicable to imported copies.
Legal Update
13 October 2010
Mayer Brown Legal Update
Chapter 28 of the United States Patent Act, 35 U.S.C. § 271(b), provides that whoever actively induces infringement of a patent shall be liable as an infringer. The Supreme Court granted certiorari today in Global-Tech Appliances, Inc. v. SEB S.A., No. 10-6, to determine the mental state that must be proven to impose inducement liability under 35 U.S.C. § 271(b).
Legal Update
22 June 2010
Mayer Brown Legal Update
Regulation Z, 12 C.F.R. § 226, issued by the Federal Reserve Board pursuant to the Truth in Lending Act, provides that a creditor must give contemporaneous notice to a consumer when certain credit terms are changed. On June 21, 2010, the Supreme Court granted certiorari in Chase Bank USA v. McCoy, No. 09-329, to determine whether Regulation Z requires a creditor to provide a consumer with a change-in-terms notice when, pursuant to a contractual provision, the creditor increases the interest rate in response to the consumer’s default.
Legal Update
22 April 2010
Mayer Brown Legal Update
On April 21, 2010, the Supreme Court held that a debt collector that makes an incorrect statement of law during certain communications with a debtor, in violation of the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. §§ 1692 et seq., may not invoke the FDCPA’s “bona fide error” defense, 15 U.S.C. § 1692k(c), even if the error was entirely unintentional and reasonable under the circumstances.
Legal Update
22 April 2010
Mayer Brown Legal Update
Many employee pension plans are regulated by the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. §§ 1001 et seq. ERISA permits plan participants to file an action in federal court if they are aggrieved by a decision of the plan administrator. The default rule under ERISA is that the administrator’s interpretation of a plan, including benefit determinations under that plan, is subject to de novo judicial review.
Legal Update
20 April 2010
Mayer Brown Legal Update
Under the Copyright Act’s first sale doctrine, codified at 17 U.S.C. § 109(a), the owner of any particular copy “lawfully made under this title” may sell or otherwise transfer ownership of that copy without the authorization of the copyright owner. In Quality King Distributors, Inc. v. L’anza Research International, Inc., 523 U.S. 135 (1998), the Supreme Court held that the first sale doctrine is applicable to imported copies. Id. at 138.
Media Coverage
20 April 2010
Art Newspaper
Andrew Tauber quoted on the Supreme Court decision striking down a 1999 federal law banning videos that depict animal cruelty.

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