While the backlog of argued cases pending decision has been growing substantially, the Court rendered only one opinion today, and it was unanimous.
Continue Reading Court Unanimously Holds That IDEA Administrative Remedy Requirements Do Not Preclude Compensatory Damages Under ADA: SCOTUS Today
Almost nine months ago, on June 13, 2022, the U.S. Supreme Court issued a long awaited decision in ZF Automotive US, Inc. v. Luxshare, LTD. that sought to resolve a decades-old circuit split regarding whether 28 U.S.C. § 1782 – which permits litigants to obtain evidence in the U.S. “for use in a proceeding in a foreign or international tribunal” – applies to private, commercial international arbitrations. Practitioners were initially hopeful that the Supreme Court had conclusively resolved this issue when it unanimously held that only bodies “that exercise governmental authority” constitute a “foreign or international tribunal” under section 1782, which meant that parties engaged in private, commercial arbitrations and ad hoc arbitrations abroad could not use the statute to obtain discovery from companies and individuals in the U.S. However, in doing so, the Court left open the possibility that “sovereigns might imbue an ad hoc arbitration panel with official authority,” leaving courts (and litigants) to grapple with the question of whether and when a foreign body may be imbued with governmental authority sufficient to constitute a foreign or international tribunal for purposes of section 1782 discovery. Few courts have addressed this lingering question in the aftermath of ZF Automotive, and those that have have interpreted the decision very restrictively, indicating that the universe of international arbitrations that section 1782 now covers may be considerably narrower than it has been in the past.
Continue Reading Early Warning Signs: Courts Further Restrict Universe of International Arbitrations Covered by Section 1782 Discovery
The Supreme Court decided two cases today, and though neither of them presents the sort of widely consequential matter that, say, the President’s student loan forgiveness plan that was argued this morning does, each has interesting aspects. Both are decided on the now-vogueish doctrine of textualism, though each shows divisions among the Justices that prove again that not only can Justices who have differing jurisprudential philosophies agree with one another as to statutory meaning, but that Justices with the same jurisprudential philosophy can disagree with one another on text as well. Thus, while there are cases, like Dobbs, where one might accurately predict the outcome on the basis of philosophy or alignment with the preferences of the President who nominated various Justices, there is a host of cases where labels don’t hold up at all.
Continue Reading Unusual Groupings of Justices Decide Two Cases Involving Contradictory Applications of Textualism – SCOTUS Today
Thomson Reuters Practical Law has released the 2023 update to “Trade Secrets Litigation,” co-authored by our colleague Peter A. Steinmeyer.
Continue Reading Trade Secrets Litigation: 2023 Update
Nearly a decade ago, the New Jersey Supreme Court in Atalese v. U.S. Legal Services Group, L.P., held that for an arbitration agreement to be enforceable, it had to contain an explicit waiver of the parties’ right to seek access to court. According to a recent New Jersey Appellate Division opinion, that long-standing rule has been qualified to reflect the relative sophistication of the parties involved in the dispute. In County of Passaic v. Horizon Healthcare Services, Inc. d/b/a Horizon Blue Cross Blue Shield of New Jersey, the Appellate Division considered a contract between the County and the entity that managed the County’s self-funded benefits plan. Following the County’s institution of a breach of contract lawsuit, Horizon successfully moved to compel arbitration based upon a clause in the parties’ agreement that required “[i]n the event of any dispute between the parties to this Agreement arising under its terms, the parties shall submit the dispute to binding arbitration under the commercial rules of the American Arbitration Association.” The clause in question contained no explicit waiver of court access. Consequently, the County appealed the decision, arguing for that very reason, the arbitration clause was unenforceable.
Continue Reading New Jersey Appellate Division Qualifies Longstanding Arbitration Requirement That Waiver of Court Relief Must Be Express
Selecting a business partner, much like selecting a spouse, involves a great deal of trust in the other’s representations and conduct as the actions of one, for better or worse, can be attributed to the other. The intricacies and complications of these two relationships most recently clashed in Bartenwerfer v. Buckley, which has presumably settled the question of whether the debt resulting from the fraud of one legal partner/spouse can be imputed to the fraudster’s innocent wife in the bankruptcy context.
Continue Reading Does the Left Hand Need to Know What the Right Is Doing: The Supreme Court Holds That Fraudulent Debts of One Partner Cannot Be Discharged by an Innocent Partner
On Monday February 8, a judge in the Eastern District of Texas again rejected the U.S. Department of Health and Human Services (HHS) Independent Dispute Resolution (IDR) rules on the grounds that the Rules continued to “put a thumb on the scale” for the arbitrator’s reliance on the Qualified Payment Amount (QPA) contrary to the statutory language of the No Surprises Act.
Continue Reading In a Win for Medical Providers, Federal Court Strikes Down Provisions of No Surprises Act Final Rule
The Court has broken the logjam of pending opinions, rendering three decisions today, one of which, dealing with the issue of when overtime pay is mandated under the Fair Labor Standards Act (FLSA), might have a broader effect. So, let’s start with that one: Helix Energy Solutions Group, Inc. v. Hewitt.
Continue Reading High-Earning Worker Entitled to Overtime Pay, Death-Row Inmate Can Challenge Punishment, and Bankruptcy Can’t Discharge Fraudulent Debt – SCOTUS Today
Jack Daniel’s Property, Inc. has successfully petitioned the U.S. Supreme Court to hear its dispute against VIP Products LLC, a dog-toy maker known for its playful products that mimic various beverage brands. Jack Daniel’s argues that the 3×10 inch “Bad Spaniels” vinyl dog toy portraying a parody version of the well-known whiskey label violates its federal trademark rights and tarnishes the Jack Daniel’s brand.
Continue Reading Old No. 7 Looks to Polish-Off K-9 Toy Maker in Supreme Court Trademark Dispute
In response to a recent Department of Justice (DOJ) request that all DOJ components write voluntary self-disclosure policies and “clarify the benefits of promptly coming forward to self-report [as] a good business decision,” on January 17, 2023, Assistant Attorney General (AAG) Kenneth Polite, Jr. announced updates to the DOJ Criminal Division’s Corporate Enforcement and Voluntary Self-Disclosure Policy (CEP). The updated CEP, policy 9-47.120, which was previously known as the Foreign Corrupt Practices Act (FCPA) Corporate Enforcement Policy, expands the applicability of the CEP to now apply to all corporate criminal matters handled by the DOJ’s Criminal Division. The updated CEP, which is effective prospectively only, offers new, significant, and concrete incentives to corporations to have effective compliance programs, to voluntarily disclose allegations of criminal misconduct (including that of its officers, directors and employees), to fully cooperate with the government’s investigation of alleged misconduct, and to timely and appropriately remediate the misconduct. In announcing the updated policy, AAG Polite stated, “Our number one goal in this area – as we have repeatedly emphasized – is individual accountability. And we can hold accountable those who are criminally culpable—no matter their seniority—when companies come forward and cooperate with our investigation.”
Continue Reading To Disclose or Not to Disclose: DOJ Revises Its Policy on How Corporate Criminal Matters Are Handled in an Attempt to Further Incentivize Voluntary Disclosure and Cooperation