(United States Supreme Court) - Declaring a writ of certiorari petition moot in the case of Microsoft's attempt to avoid providing emails pursuant to a Government warrant investigating the drug trade because a new warrant was issued under a new law that, unlike the old version, permitted the Government to demand emails stored on overseas datacenters under Trump's Clarifying Lawful Overseas Use of Data Act.

(United States Ninth Circuit) - Reversed the denial of class certification in an action where a healthcare company was accused of unlawfully sending unsolicited faxed advertisements in violation of the U.S. Telephone Consumer Protection Act. The district court denied the motion for class certification on the ground that individual issues would predominate over issues common to the putative class. On an interlocutory appeal, the Ninth Circuit disagreed and remanded for further proceedings.

(California Court of Appeal) - Reversed the denial of class certification in a case involving tax refund claims filed by limited liability companies (LLCs) which sought refunds of a levy they had paid pursuant to a California tax statute that was later determined to be unconstitutional. When the district court denied the LLCs' motion for class certification on multiple grounds including predominance and superiority, they appealed. Agreeing with the LLCs that this case was suitable for treatment on a classwide basis, the First Appellate District reversed and remanded for certification of a class or classes consistent with its opinion.

(United States Ninth Circuit) - Held that the district court erred in remanding a class action to state court under the Class Action Fairness Act's local-controversy exception. The plaintiff argued that her wage-hour class action against a fast-food chain belonged in state court because more than two-thirds of the putative class members were California citizens. Unconvinced, the Ninth Circuit reversed and remanded for additional discovery regarding how many former employees had moved to other states, among other things.

(United States Ninth Circuit) - In an amended opinion, reversed the denial of class certification in a wage-hour lawsuit brought by registered nurses against a hospital.

(United States Seventh Circuit) - Held that a state law fraud lawsuit against an investment adviser was precluded by the Securities Litigation Uniform Standards Act. The statute's definition of a "covered class action" includes any class action brought by a named plaintiff on a representative basis, regardless of the proposed class size. Affirmed a dismissal.

(United States Supreme Court) - Held that the federal rule governing appeals from orders granting or denying class certification is not subject to equitable tolling. The plaintiff contended that his failure to comply with the 14-day limit specified in Federal Rule of Civil Procedure 23(f) should be tolled, because he had acted reasonably in the particular circumstances here. Disagreeing, the U.S. Supreme Court declared that the time limit for appealing class certification rulings cannot be equitably tolled. Justice Sotomayor wrote the unanimous opinion.

(United States Ninth Circuit) - Held that a car purchaser did not raise a triable issue that a dealership failed to provide customers promised add-ons. Also addressed an issue under the Class Action Fairness Act relating to removal jurisdiction. Affirmed the decision below.

(United States Second Circuit) - Questions on appeal concern cross-jurisdictional tolling of a class action. Because the appeal presents state law questions that New York’s courts have yet to address, the court certifies the case to the New York Court of Appeals.

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(United States Fifth Circuit) - Held that a contractor breached its contract with a subcontractor. Affirmed a judgment after a jury trial but remanded for recalculation of damages under the Louisiana Prompt Payment Act, in this case involving an Army Corps of Engineers' project.

(United States Second Circuit) - Held that a medical device manufacturer did not violate the intellectual property rights of a company it hired to help automate its quality testing process. The issue involved reuse of computer source code. Affirmed a JMOL.

(United States Seventh Circuit) - Affirmed. A franchise's preliminary injunction against a franchisee operating a competing company was upheld in a lawsuit over the franchisee's alleged violation of franchise agreements. The district court should have included more detail regarding the likelihood of success on the merits by the movant, but there was enough to establish that the order wasn't an abuse of discretion.

(United States Seventh Circuit) - Reversed and remanded. The district court's entry of summary judgment for a company on a claim of breach of contract against an insurer was overturned because of the court's interpretation of the clause "as reported" to mean a report had been made, rather than referencing events that had already occurred at the time of the drafting.

(United States Ninth Circuit) - Reversed the district court’s dismissal of an action based on the forum selection clause in the parties’ contract. Held that the district court abused its discretion in overriding the strong public policy in Idaho Code section 29-110(1).

(California Court of Appeal) - Granted writ of mandate and directed trial court to vacate order granting summary adjudication motion. The appeals court held that the trial court’s per se application of Business and Professions Code section 16600 to the contract in question was incorrect.

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By Rob Stein, Carmel Wroth, Alyson Hurt

To safely phase out social distancing measures, the U.S. needs more diagnostic testing for the coronavirus, experts say. But how much more?

The Trump administration said on April 27 that the U.S. will soon have enough capacity to conduct double the current amount of testing for active infections. The country has done nearly 248,000 tests daily on average in the past seven days, according to the nonprofit COVID Tracking Project. Doubling that would mean doing about 496,000 a day.

Will that be enough? What benchmark should states try to hit?

One prominent research group, Harvard's Global Health Institute, proposes that the U.S. should be doing more than 900,000 tests per day as a country. This projection, released Thursday, is a big jump from its earlier projection of testing need, which had been between 500,000 and 600,000 daily.

Harvard's testing estimate increased, says Ashish Jha, director of the Global Health Institute, because the latest modeling shows that the outbreak in the United States is worse than projected earlier.

"Just in the last few weeks, all of the models have converged on many more people getting infected and many more people [dying]," he says.

But each state's specific need for testing varies depending on the size of its outbreak, explains Jha. The bigger the outbreak, the more testing is needed.

On Thursday, Jha's group at Harvard published a simulation that estimates the amount of testing needed in each state by May 15. In the graphic below, we compare these estimates with the average numbers of daily tests states are currently doing.

Two ways to assess whether testing is adequate

To make their state-by-state estimates, the Harvard Global Health Institute group started from a model of future case counts. It calculated how much testing would be needed for a state to test all infected people and any close contacts they may have exposed to the virus. (The simulation estimates testing 10 contacts on average.)

"Testing is outbreak control 101, because what testing lets you do is figure out who's infected and who's not," Jha says. "And that lets you separate out the infected people from the noninfected people and bring the disease under control."

This approach is how communities can prevent outbreaks from flaring up. First, test all symptomatic people, then reach out to their close contacts and test them, and finally ask those who are infected or exposed to isolate themselves.

Our chart also shows another testing benchmark for each state: the ratio of tests conducted that come back positive. Communities that see about 10% or fewer positives among their test results are probably testing enough, the World Health Organization advises. If the rate is higher, they're likely missing a lot of active infections.

What is apparent from the data we present below is that many states are far from both the Harvard estimates and the 10% positive benchmark.

Just nine states are near or have exceeded the testing minimums estimated by Harvard; they are mostly larger, less populous states: Alaska, Hawaii, Montana, North Dakota, Oregon, Tennessee, Utah, West Virginia and Wyoming.

Several states with large outbreaks — New York, Massachusetts and Connecticut, among others — are very far from the minimum testing target. Some states that are already relaxing their social distancing restrictions, such as Georgia, Texas and Colorado, are far from the target too.

Jha offers several caveats about his group's estimates.

Estimates are directional, not literal

Researchers at the Global Health Initiative at Harvard considered three different models of the U.S. coronavirus outbreak as a starting point for their testing estimates. They found that while there was significant variation in the projections of outbreak sizes, all of the models tend to point in the same direction, i.e., if one model showed that a state needed significantly more testing, the others generally did too.

The model they used to create these estimates is the Youyang Gu COVID-19 Forecasts, which they say has tracked closely with what's actually happened on the ground. Still, the researchers caution, these numbers are not meant to be taken literally but as a guide.

Can't see this visual? Click here.

If social distancing is relaxed, testing needs may grow

The Harvard testing estimates are built on a model that assumes that states continue social distancing through May 15. And about half of states have already started lifting some of those.

Jha says that without the right measures in place to contain spread, easing up could quickly lead to new cases.

"The moment you relax, the number of cases will start climbing. And therefore, the number of tests you need to keep your society, your state from having large outbreaks will also start climbing," warns Jha.

Testing alone is not enough

A community can't base the decision that it's safe to open up on testing data alone. States should also see a consistent decline in the number of cases, of two weeks at least, according to White House guidance. If their cases are instead increasing, they should assume the number of tests they need will increase too.

And, Jha warns, testing is step one, but it won't contain an outbreak by itself. It needs to be part of "a much broader set of strategies and plans the states need to have in place" when they begin to reopen.

In fact, his group's model is built on the assumption that states are doing contact tracing and have plans to support isolation for infected or exposed people.

"I don't want anybody to just look at the number and say, we meet it and we're good to go," he says. "What this really is, is testing capacity in the context of having a really effective workforce of contact tracers."

The targets are floors, not goals

States that have reached the estimated target should think of that as a starting point.

"We've always built these as the floor, the bare minimum," Jha says. More testing would be even better, allowing states to more rapidly tamp down case surges.

In fact, other experts have proposed that the U.S. do even more testing. Paul Romer, a professor of economics at New York University, proposed in a recent white paper that if the U.S. tested every resident, every two weeks, isolating those who test positive, it could stop the pandemic in its tracks.

Jha warns that without sufficient testing, and the infrastructure in place to trace and isolate contacts, there's a real risk that states — even those with few cases now — will see new large outbreaks. "I think what people have to remember is that the virus isn't gone. The disease isn't gone. And it's going to be with us for a while," he says.

Can't see this visual? Click here.

Daniel Wood contributed to this report.

(United States Ninth Circuit) - Held that a car purchaser did not raise a triable issue that a dealership failed to provide customers promised add-ons. Also addressed an issue under the Class Action Fairness Act relating to removal jurisdiction. Affirmed the decision below.

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(California Court of Appeal) - Held that employees alleging wage-hour violations could not be forced to arbitrate claims seeking civil penalties under California's Private Attorney General Act, because California law prohibits compelled arbitration of such claims. The employer unsuccessfully raised an argument based on the U.S. Supreme Court's recent decision in Epic Systems Corp. v. Lewis, 138 S. Ct. 1612 (2018). Affirmed the trial court.

(United States Fifth Circuit) - On rehearing of a dispute between two creditors, held that Louisiana's non-resident attachment statute allows for attachment in aid of arbitration. Further held that subject matter jurisdiction existed here under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Vacated and remanded.

(United States Ninth Circuit) - Reversed. The panel concluded that Amaro v. Continental Can Co., which held that ERISA claims are not arbitrable, is no longer good law in light of intervening Supreme Court case law, including American Express Co. v. Italian Colors Restaurant.

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