Commercial Litigation Update

Our colleague Stuart Gerson authored an article in Bloomberg Law, titled “No-Poaching Agreements, Wage Fixing & Antitrust Prosecution.”

The following is an excerpt (see below to download the full version in PDF format):

Especially in difficult economic times, companies look for stability and predictability. Hence, while intent upon avoiding litigation charging wage fixing or its close cousin, no-poach agreements, experience suggests that there are companies that might be considering various ways to exchange information related to employment that can be used for ...

Our colleague Stuart Gerson of Epstein Becker Green has a new post on SCOTUS Today that will be of interest to our readers: "A Unanimous Court Applies Unambiguous Statutory Requirements in Two New Decisions".

The following is an excerpt:

The Court is in full-majority mode today, again focusing on text rather than more abstract notions of policy.

In Territory of Guam v. United States, a unanimous Court, in an opinion written by Justice Thomas, reversed the D.C. Circuit and revived Guam’s suit against the U.S. Navy, seeking $160 million because of pollution at a waste ...

Our colleague Stuart Gerson of Epstein Becker Green has a new post on SCOTUS Today that will be of interest to our readers: "Court Grants Certiorari in Abortion Case, Issues Several Decisions, and Continues to Demonstrate an Essential Commitment to Textualism".

The following is an excerpt:

The most widely reported action that the Supreme Court took this past Monday is its grant of cert. to review an en banc decision of the Fifth Circuit that, if reversed, would substantially undercut Roe v. Wade. That case won’t be argued until next fall and, for now, the readers of ...

“Cowboy” Joe West is the best-known, longest-serving, and (to some) most reviled umpire currently active in Major League Baseball. For example, in 2010 he was named the second-worst MLB umpire, barely losing to CB Bucknor in a call at the plate that today could only be decided by the replay umpires in New York. At least he has his part-time country music career to fall back on. But West recently hit a home run in court, winning a $500,000 defamation verdict against a former player who accused him of trading a generous strike zone for personal favors. The court’s decision illustrates ...

Should I click “Reply All”?  Did I accidentally click “Reply All”? These thoughts have run through almost every person’s head when responding to an email that contained numerous other individuals besides the sender. The Reply All option on emails has always been a source of questions surrounding work-place etiquette and embarrassment. On top of that, lawyers should think about one more thing before selecting Reply All: ethics.

A recent opinion by the New Jersey Advisory Committee on Professional Ethics considered the implications of an attorney clicking Reply All on an ...

Our colleague Stuart Gerson of Epstein Becker Green has a new post on SCOTUS Today that will be of interest to our readers: "The Court at Peace".

The following is an excerpt:

Given that there was a good deal of media interest in Justice Sotomayor’s somewhat vituperative dissenting criticism of Justice Kavanaugh in last week’s decision in the criminal sentencing case of Jones v. Mississippi¸ today’s per curiam GVR (Grant, Vacate, and Remand) order in Alaska v. Wright is worthy of at least passing mention.

Once again, the Ninth Circuit is reversed, this time ...

We blogged last October (here) about the Third Circuit’s decision in FTC v. AbbieVie Inc., holding that Section 13(b) of the Federal Trade Commission Act, which expressly gives the FTC authority to obtain injunctive relief, does not allow a district court to order disgorgement or restitution. We also noted that the Supreme Court had granted certiorari to hear an appeal of the 9^th Circuit’s decision in AMG Capital Management, LLC v. FTC, where the 9^th Circuit upheld the Commission’s right to seek equitable monetary remedies pursuant to Section 13(b) of the FTC Act, while the 3^rd

Our colleagues Gregory Keating and Francesco DeLuca of Epstein Becker Green have a new post on Workforce Bulletin that will be of interest to our readers: "Massachusetts Case Highlights Importance of Clear Communication in Compensation Plans."

The following is an excerpt:

Preparing the terms of employee compensation can be a resource-intensive task requiring input from stakeholders across numerous departments, including human resources, finance, and legal. However, as the Massachusetts Appeals Court’s recent decision in Alfieri v. Merrimack Pharmaceuticals ...

I was reminiscing the other day about how I missed my favorite, snarky website Gawker when I saw that the District of New Jersey has proposed an amendment to the local rules (Local Rule 7.1.1) that would require disclosure of third-party litigation funding. Under the proposed new rule, all parties would be required to file statements setting forth information about any non-party person or entity that is “providing funding for some or all of the attorneys’ fees and expenses for the litigation of a non-recourse basis” in exchange for either “a contingent financial interest ...

Our colleague Stuart Gerson of Epstein Becker Green has a new post on SCOTUS Today that will be of interest to our readers: "The Court Dismisses the Trump Twitter Account Case as Moot, but Social Media Is Sure to Be on the Menu Again".

The following is an excerpt:

Yesterday, I discussed the Supreme Court's move into the world of technology in the case of Google LLC v. Oracle America, Inc., in which the Court held that Google's copying of a small slice of Java programming language code constituted a permissible “fair use” of Oracle's assumed copyright of Java itself. The ...

Our colleague Stuart Gerson of Epstein Becker Green has a new post on SCOTUS Today that will be of interest to our readers: "The Court Won't Allow Second-Guessing of Convictions Supported by Persuasive Evidence".

The following is an excerpt:

In a per curiam opinion (Sotomayor, J., dissenting without opinion), the Court today decided the case of Mays v. Hines, reversing the Sixth Circuit and reinstating a judgment of conviction in a murder case that originated almost 35 years ago.

Hines had been convicted of murder in the wake of evidence that he had been seen fleeing the ...

Our colleague Stuart Gerson of Epstein Becker Green has a new post on SCOTUS Today that will be of interest to our readers: "The Supreme Court Takes a Lenient View of Personal Jurisdiction and 4th Amendment Seizures".

The following is an excerpt:

The Court rendered two opinions on Thursday, both interesting and impactful, one of them particularly significant with respect to civil litigation practice.

Ford Motor Co. v. Montana Eighth Judicial District Court arose following two motor vehicle accidents, one in Montana, the other in Minnesota, in which Ford vehicles were ...

Imagine this: You litigate a case for years. Your opponent wins summary judgment. You appeal. The appellate court agrees that the summary judgment was erroneous and remands for trial. On remand, your opponent argues that the appellate court actually affirmed the dismissal of one the claims that was clearly remanded for trial. The lower court accepts that argument. What do you do?

You are facing the injustice of being denied the victory you just won in the appellate court. You know you can return to the appellate court again—someday—as of right. But if that return trip does not happen ...

Our colleague Stuart Gerson of Epstein Becker Green has a new post on SCOTUS Today that will be of interest to our readers: Understanding Standing Under Article III – and the Chief Justice Stands Alone.

The following is an excerpt:

Articles in the popular press have noted that today's decision by a near-unanimous Supreme Court in the case of Uzuegbunam v. Preczewski represents a victory for several Christian students in their battle against a college's restrictive policies that prevented their on-campus religious evangelizing.

It is true enough that the now-former ...

Our colleague Stuart Gerson of Epstein Becker Green has a new post on SCOTUS Today that will be of interest to our readers: The Supreme Court Decides Significant Administrative Law Case Preventing Disclosure of Agency Deliberations

The following is an excerpt:

The Court decided two cases today, one of which is an administrative law case that may prove consequential, not just in the field of environmental law, in which it is grounded, but in other areas of the law, for example, health care, in which prospective rules undergo repeated drafts and modifications. United States ...

Our colleague Stuart Gerson of Epstein Becker Green has a new post on SCOTUS Today that will be of interest to our readers: A Hint About the Future of the Affordable Care Act.

The following is an excerpt:

There were no opinions delivered today, only very heated and important argument in the consolidated cases of Brnovich v. Democratic National Committee and Arizona Republican Party v. Democratic National Committee.

These cases concern whether two of Arizona’s voting policies—one prohibiting counting provisional ballots cast on election day outside of a ...

Our colleague Stuart Gerson of Epstein Becker Green has a new post on SCOTUS Today that will be of interest to our readers: Court’s Unanimous Opinion in Federal Tort Claims Act Case Provides Useful Guidance on Claim/Issue Preclusion.

The following is an excerpt:

The Court rendered a unanimous opinion (per Thomas, J., with Sotomayor, J., concurring) in the case of Brownback v. King. The Respondent, King, suffered personal injury in a confrontation with Brownback and Allen, two members of a federal task force, and brought suit against them and others under the Federal ...

Our colleagues Stuart Gerson and Daniel Fundakowski of Epstein Becker Green have a new post on SCOTUS Today that will be of interest to our readers: "Court Declines Resolving Circuit Split on What Constitutes a 'False' Claim, but Will Consider Legality of Trump Abortion Gag Rule."

The following is an excerpt:

While this blog usually is confined to the analysis of the published opinions of the Supreme Court, several of this morning’s orders are worthy of discussion because of their importance to health care lawyers and policy experts. Guest editor Dan Fundakowski joins me in ...

Our colleague Stuart Gerson of Epstein Becker Green has a new post on SCOTUS Today that will be of interest to our readers: Biden DOJ No Longer Argues That the ACA Is Unconstitutional

The following is an excerpt:

While the Supreme Court is in recess this week, and public attention is drawn to the trial of Donald Trump in the Senate, there is one event at the Court that is worthy of attention, particularly by those who counsel clients in the health care space. In a letter to the Court, the Biden Department of Justice (“DOJ”) has reversed the position that the previous administration had ...

Our colleague Stuart Gerson of Epstein Becker Green has a new post on SCOTUS Today that will be of interest to our readers: Court Favors Judicial Review in Railroad Benefits Case, Remands Two Cases Concerning Nazi-Era Looted Property.

The following is an excerpt:

The Supreme Court decided three cases Wednesday, two of them related. None of them could be characterized as a blockbuster ruling or even a matter of broad national interest. One of them, however, will garner much inside-baseball commentary because the 5-4 majority that decided it included the Chief Justice and Justice ...

Our colleague Stuart Gerson of Epstein Becker Green has a new post on SCOTUS Today that will be of interest to our readers: Court Refuses to Take Another Look at Case Questioning Whether Judge or Arbitrator Should Decide Scope of Arbitration Agreement

The following is an excerpt:

The overall quiet at the Court on Monday was only lightly interrupted with its per curiam decision in Henry Schein, Inc. v. Archer & White Sales, Inc., dismissing the petition for certiorari to the Fifth Circuit as improvidently granted. I mention it because the dismissal leaves open the questions that ...

Our colleague Stuart Gerson of Epstein Becker Green has a new post on SCOTUS Today that will be of interest to our readers: Unanimous Court Applies “Plain Meaning” Approach in Bankruptcy Decision

The following is an excerpt:

Bankruptcy is not usually a subject that I would cover in this blog, but I write about the Supreme Court’s unanimous decision today in City of Chicago v. Fulton for two reasons. The first is obvious in that, in these uncertain times, there is an unfortunate number of companies that are contemplating reorganization and others that, as a result, are taking ...

Most have heard the cliché “don’t do the crime, if you can’t do the time.” For many criminal defendants, however, a significant factor in the time served is not just the crime committed, but rather the so-called “trial penalty.”

A “trial penalty” describes situations where a defendant chooses to proceed to trial instead of accepting whatever plea deal the Government had offered and receives a significantly lengthier sentence than she would have received had she not gone to trial. Often the “trial penalty” results in a defendant receiving a much lengthier ...

The COVID-19 pandemic has foisted ten years of technological advances on the legal sector in a period of ten months. In June of 2020, when the novel Coronavirus was truly novel, we blogged (here) about whether virtual jury trials would be part of the “new normal” and discussed some of the potential pitfalls associated with remote courtroom proceedings.

What seemed revolutionary just a few short months ago, does, indeed, appear to be the “new normal,” ushered in by the pandemic. On January 7, 2021, the New Jersey Supreme Court issued an Order resuming civil jury trials in a ...

On October 21, 2020, President Trump signed into law the “Due Process Protections Act” (“DPPA”), P.L. No. 116-182, 134 Stat. Ann. 894, which was effective upon enactment. Receiving rare bi-partisan support in both houses of Congress, the new law seeks to bring balance to the power dynamic between the prosecution and the defense by requiring federal courts at the outset of a case to put the government on notice of its constitutional discovery obligations and the potential consequences for flouting those obligations.

By directly amending Federal Rule of Criminal Procedure ...

To constitutional scholars, the line between Alexander Hamilton and the federal judiciary will always connect through The Federalist No. 78, wherein Hamilton anticipated the doctrine of judicial review by concluding that federal courts would have the “duty…to declare all acts contrary to the manifest tenor of the constitution void.”

But surely Hamilton never anticipated that two-and-half centuries later the federal judiciary he helped create and define would parody a Broadway musical about him to discuss the resumption of jury trials during a pandemic. But, alas, we ...

We have previously discussed (here and here) the complex issues surrounding the resumption of jury trials during the COVID-19 pandemic. We cautioned that the various experimental efforts to resume jury trials taking place in courts around the country were likely to meet with a host of practical and jurisprudential problems. A few weeks later, it appears that our assessment was, if anything, too optimistic. Many of the states that had been taking first steps toward resuming jury trials in some form are now shutting down those experiments because of the spike in COVID-19 cases that is ...

Mark Twain once said: “Trial by jury is the palladium of our liberties. I do not know what a palladium is, but I am sure it is a good thing!” If Mr. Twain were alive today, he wouldn’t be quite so sure that jury trials conducted during the COVID-19 pandemic are really such a good thing.

Recent news reports suggest that a vaccine may not be available until next spring at the earliest, and it may take months before that vaccine can be widely distributed. But the demands of justice do not rest, and courts—already overburdened with growing dockets before the pandemic—are struggling to ...

The Third Circuit recently affirmed the significant discretion that district court judges have to manage their dockets when it confirmed that “good cause” must be shown under Federal Rule Civ. P. 16(b)(4) to add a party or amend a pleading after the deadline in a district court’s scheduling order has passed rather than Rule 15(a)’s more liberal (“[t]he court should freely give leave when justice so requires”) standard. In Premier Comp Solutions, LLC v. UPMC, 970 F.3d 316 (3d Cir. 2020), the plaintiff made a motion to amend its complaint and add a party, relying on Rule 15 of ...