作者:雷继平 王巍 争议解决部 金杜律师事务所

2020年8月20日,最高法院发布了新修订的《关于审理民间借贷案件适用法律若干问题的规定》(下称“《民间借贷解释》”),大幅降低了民间借贷的利息上限标准,并将全面适用于自然人、非银行金融机构法人和非法人组织之间进行资金融通的行为,对资金市场影响重大。 Continue Reading 新民间借贷解释施行前已付的超额利息应该返还吗?
作者:雷继平 王巍 争议解决部 金杜律师事务所

2020年8月20日,最高法院发布了新修订的《关于审理民间借贷案件适用法律若干问题的规定》(下称“《民间借贷解释》”),大幅降低了民间借贷的利息上限标准,并将全面适用于自然人、非银行金融机构法人和非法人组织之间进行资金融通的行为,对资金市场影响重大。 Continue Reading 新民间借贷解释施行前已付的超额利息应该返还吗?
Written by Barri Mendelsohn KWM London Office

Executive summary
A break from the usual corporate and commercial case review for the Full English team as we tuck into a data protection case which has the potential to send tremors through all organisations who handle personal data. Continue Reading Can individuals claim damages for loss of control over their personal data
作者:Barri Mendelsohn 伦敦办公室

摘要
不同于英国法面面观中介绍的常见的公司与商事案例,我们正在全力投入一个数据保护案件,这个案件有可能引起所有涉及处理个人数据的公司的震动。 Continue Reading 失去个人数据控制权, 个人能否主张损害赔偿?
Written by Robert(Bob) Whitman Eric Berger KWM New York Office


Appeals of judicial decisions are commonplace in both federal and state court litigation in the US. This note provides a brief overview of common types of appeals, an overview of US appellate courts, and the common appellate standards of review, which are the frameworks appellate courts use when evaluating appeals.
After a trial court level judge has entered a final written decision that resolves all claims against all parties to a litigation, the parties may typically appeal any final determinations by the court as a matter of right. This is generally true for both federal and state court cases. Because all parties to a litigation have the right to appeal and the court’s rulings on different issues often favor different parties, it is common for appeals to involve multiple issues being contested by different parties.
Before all claims in a litigation are resolved, a party may seek to appeal a decision it disagrees with through what is called an interlocutory appeal. Such appeals are not available as a matter of right and proceeding with such an appeal requires the approval of the trial court. The specific requirements for bringing an interlocutory appeal vary by court. Federal district courts generally have three requirements for an interlocutory appeal to proceed. First, that the outcome of the case would be conclusively determined by the issue being appealed. Second, that the issue being appealed is collateral to the merits of the case. And third, that the matter would be effectively unreviewable if immediate appeal was not allowed. Interlocutory appeals are relatively rare in US civil litigation.
Decisions by US federal administrative agencies, such as the Securities and Exchange Commission or the US Patent and Trademark Office, may also generally be appealed to a federal court. Which court hears the appeal depends on which administrative agency’s ruling is being appealed, with most such appeals being heard by a federal appellate court.
Decisions by intermediate appellate courts in the federal and state systems may potentially be appealed further to the US Supreme Court in federal cases or a state supreme court in state cases, but such appeals of an appellate court decision are not allowed as a matter of right. The specific requirements for such appeals vary between the federal and state systems and from state to state, but typically require the party seeking a further appeal to submit briefing requesting the secondary appeal. For example, an appellant wishing to be heard by the US Supreme Court must petition the Court for a writ of certiorari allowing such an appeal to proceed.
Both the federal and state court systems have three levels of courts: a trial court level (referred to as district courts in the federal system), intermediate level appeals courts, and a highest level appeals court that is typically referred to as the supreme court, although the naming conventions vary somewhat by state.
Appeals from federal district courts are typically heard by the intermediate appellate level circuit court of appeals for the region where the district court is located. There are, however, some exceptions, such as that all appeals of patent litigations are heard by the Court of Appeals for the Federal Circuit in Washington, DC. Federal appeals at the intermediate appellate level are heard by panels of three appellate judges. A party who loses such an appeal may requesting a rehearing “en banc” by all of the judges of that appellate court, but such a rehearing is not available as a matter of right. An appellant who wishes to further appeal a federal appellate decision to the US Supreme Court can request permission from the Court to do so, but such requests are seldom granted.
State court appellate procedure varies by state, but trial court decisions may typically be appealed to an intermediate state appellate court as a matter of right. Typically, a panel of three to five appellate judges would hear such an appeal, depending on the state. A secondary appeal of a state appellate court’s decision to the state’s supreme court is not generally available as a matter of right in civil cases and instead requires approval from the state supreme court, which is seldom granted. A decision by a state supreme court may potentially be appealed further to the US Supreme Court, but as with other attempts to appeal to the US Supreme Court, this requires petitioning the Court for a writ of certiorari, which the Court almost always denies.
The framework that an appellate court uses to evaluate an issue on appeal is referred to as the standard of review. The particular standard of review applied by an appellate court depends on the relevant courts and the specific issue and decision being appealed.
Appellate review of issues of law decided by a court are subject to de novo review, which literally translates to “of new.” This is a standard of review where the appellate court evaluates the issue on its own as if the issue had not been previously decided by a lower court and without deferring to the decision of the lower court. This is the least deferential standard of review used by appellate courts.
When an administrative agency interprets a law as part of making a decision and that interpretation is appealed, the appellate court applies Chevron deference, which is named after the US Supreme Court case that articulated this standard of review. Chevron deference applies to questions of statutory interpretation decided by an administrative agency in a manner that has the force of law. This standard of review gives substantial deference to the administrative agency’s decision. The agency’s interpretation of the statute does not have to be the only permissible construction of the law for the agency’s decision to stand. Rather, if the agency’s decision is based on a permissible construction of the statute and Congress has not addressed the precise issue in question, then the appellate court will not overturn the administrative agency’s decision based on its interpretation of the law.
The standards of review applied to factual determinations tend to be more deferential than those applied to rulings on issues of law. Findings of fact made by a jury are subject to a substantial evidence standard of review that will not overturn the jury’s decision so long as it is supported by substantial evidence. Generally, more than a mere scintilla of evidence in support of the jury’s determination is needed to meet this standard. But the jury’s determination does not need to be the only reasonable determination supported by the evidence to be upheld on appeal. If there is evidence that a reasonable mind might accept as adequate to support the jury’s conclusion, that is sufficient for the jury’s conclusion to be upheld on appeal. This standard is applied to every material fact that a jury decided that is necessary for establishing an essential element of a claim or defense that is being appealed.
While factual determinations are usually left to juries in US civil litigation, in some cases judges make factual determinations, such as during a bench trial in front of a judge, which does not involve a jury. Appellate courts review findings of fact made by a judge using a clearly erroneous standard that only overturns the lower court judge’s ruling if it constituted clear error. During such a review the appellate court will look at the evidence as a whole and consider whether it has a definite and firm conviction that a mistake has been committed by the lower court. While the lower court’s decision does not have to be the only decision supported by the evidence to be upheld, a lower court decision with some supporting evidence can still be overturned.
During litigation trial court judges are often required to make discretionary decisions on issues such as discovery disputes, whether a requested continuance should be granted, or on evidentiary issues. Appellate courts review such decisions under an abuse of discretion standard that looks at whether the trial court abused its discretion in making its ruling. This is a very deferential standard that rarely results in an appellate court overturning a lower court’s decision. Examples of when a lower court’s decision on a discretionary issue may be overturned include instances where the lower court’s ruling was arbitrary, capricious, whimsical, or resulted in a manifestly unreasonable judgment. Such a decision may also be overturned if the ruling made by the lower court was beyond the bounds of permissible choice in the circumstances.
Not all decisions considered on appeal present purely legal or factual disputes. Some decisions involve a mixed question of law and fact, for example when a trial court makes a determination of whether a settled rule of law as applied to established facts is violated. In such instances the parties do not dispute the historical facts at issue or what rule of law is applicable. Typically, an appellate court applies a de novo standard of review in appeals of determinations made on a mixed question of law and fact. But if factual issues predominate in the lower court’s decision, a clearly erroneous standard of review may be applied by the appellate court.
KWM New York Office
This article provides an overview of some issues related to properly valuing damages in US patent litigation, including identifying on common challenge to the quantification of patent damages based on valuing technology beyond the scope of the patented invention, and how the use of the cost savings approach to patent damages valuation can make a damages expert’s opinion more robust and less susceptible to such a challenge. Continue Reading Valuing Patented Inventions in Litigation
近年来,企业经营面临的国内外合规监管要求愈发多元、复杂,监督执法力度也不断加大。建立有效的合规管理体系,依法合规经营,已经成为企业发展的大势所趋。在此背景下,金杜于2020年8月重磅推出《企业营商风险与合规指引》。 Continue Reading 多年沉淀、厚积薄发:《企业营商风险与合规指引》重磅发布
作者:Robert(Bob) Whitman、Eric Berger 金杜纽约办公室


在美国联邦法院和州法院进行的诉讼案件中,诉讼当事人或参与人对法院判决提起上诉是很常见的。本文简要概述了美国上诉案件的常见类型、美国上诉法院概况以及上诉法院审理上诉案件时通常采用的上诉审查标准。 Continue Reading 美国民事诉讼的上诉程序
作者:冯晓鹏 王溢美 合规业务部 金杜律师事务所

“全国网红看东北,东北网红数辽宁。”“网红经济”迎来爆发之年,辽宁正充分利用“网红资源优势”实现经济新业态上的“弯道超车”。上半年,辽宁省直播销售超150亿元,直接带动就业11.8万人。目前,辽宁省商务厅正式认定营口市老边区网红小镇、沈阳市五爱南塔直播产业带等13个电商直播基地为全省第一批电商直播示范基地。辽宁电商直播生态圈已逐步形成。网红的“前店”振兴了工业的“后厂”,产销一体化形成的低成本优势,力促当地企业扩能升级、域外企业接连进入,直播电商正在引领改变着东北新振兴的发展与未来。 Continue Reading 沈阳云办公室主题周:从合规视角解读《辽宁省关于推动电商直播提质网红经济促进网络消费的指导意见》
2020年8月27日,《国际金融法律评论》(IFLR 1000) 公布了首次“IFLR1000中国奖”获奖名单。金杜律师事务所获得包括“北京年度最佳律师事务所”在内的八个奖项。
《国际金融法律评论》(IFLR1000)是一家领先的法律媒体,主要提供金融及公司业务等领域的律师事务所及律师的排名指南。该媒体尤其注重法律行业的创新贡献和推动行业发展的创新举措。“IFLR1000中国奖”表彰了2019年最具创新力的交易以及表现最佳的中国律师事务所及律师和项目。
金杜纽约办公室
本文概述了美国专利诉讼中如何正确确定损害赔偿额的相关问题,包括指出根据发明专利范围外的技术估值来量化专利损害赔偿常会遭受的质疑,在确定专利损害赔偿额时如何使用成本节约法使损害赔偿专家的意见更具说服力,不易遭受超范围计算损害赔偿的质疑。 Continue Reading 诉讼中如何确定发明专利的价值