Emerging from the pattern of unanimity, or near unanimity, that has characterized most of the cases decided so far this term, the Supreme Court decided one of its most eagerly awaited and controversial casesAnd the outcome of the case will confound the predictions of many voting-rights analysts and critics of the Court and its Chief Justice.

The case is Allen v. Milligan, and, in a 5-4 opinion written by the Chief Justice, and joined by Justices Sotomayor, Kagan, and Jackson, and, most significantly, by Justice Kavanaugh, the Court held that a districting plan adopted by the State of Alabama for its 2022 congressional elections likely violated Section 2 of the Voting Rights Act, 52 U. S. C. §10301. I think it is fair to say that, following the oral argument of the case, most liberal commentators expected significant further erosion of Section 2, and most politically, if not jurisprudentially, conservative observers were licking their lips. Each side has been surprised.

Continue Reading Voting Rights, Health Care Liability, and Trademark Are the Subjects of the Day – SCOTUS Today

The New York State Court Rule (the “Rule”), 22 NYCRR 202.20-d, that governs entity depositions is intended to streamline the method for examining entities. Although it is similar to FRCP 30(b)(6), it is not entirely the same. The differences between the Rule and FRCP 30(b)(6), as well as the fact that there is minimal case law interpreting the Rule, will likely lead to some confusion for commercial entities – and their general counsel – that receive a notice or subpoena to testify at a deposition for a case pending in New York State court. This blog post provides a brief overview of what is required by such a notice or subpoena and the related rights that are afforded to the commercial entity.

Continue Reading Comparing New York State’s Court Rule Governing Entity Depositions to Federal Rule of Civil Procedure 30(b)(6)

Continuing the issuance of opinions as to which the Justices are largely of one mind, the Court today handed down three decisions. Each gives important guidance to litigators on both sides of the ball. The first of these is a unanimous opinion settling the hotly debated question of whether intent under the federal False Claims Act (FCA) is a subjective or objective matter. It is the former. The second decision, also unanimous, clarified what a plaintiff must plead and prove to establish securities fraud regarding a stock offering through a direct listing. The third case offers a lone dissent over a majority and concurring opinions rejecting a labor union’s argument that the National Labor Relations Act (NLRA) preempts a state court tort action concerning workers sabotaging a company’s concrete trucks.

Continue Reading Health Care Fraud and Labor Unrest Top Today’s Docket – SCOTUS Today

With essential unanimity, though with an array of concurrences in one of them, the Supreme Court ruled against government parties in three cases, two of them in favor of homeowners, and in property rights and environmental enforcement cases, and a third, upholding the right of appeal by a prison guard charged with causing a detainee’s beating.

Continue Reading A Big Day for the Little Guy – SCOTUS Today

Introducing the first episode of our new podcast, Speaking of Litigation – read our announcement here.

Trial lawyers are constantly developing dynamic litigation strategies and using new technologies in the courtroom.

Whether we like it or not, litigation is becoming more like a reality TV show, with video depositions trending toward full-scale production sets. But what really goes into making a comprehensive and seamless video deposition?

Epstein Becker Green attorneys Max CadmusVictoria Flinn McCurdy, and Anthony Argiropoulos break down how this trend requires litigators to strengthen their deposition playbook.

Continue Reading The New Playbook for Depositions – <em>Speaking of Litigation Podcast</em>

In a per curiam opinion issued in Calcutt v. Federal Deposit Insurance Corporation, the Court has reversed the U.S. Court of Appeals for the Sixth Circuit and remanded to it an enforcement action that had been brought against a bank executive charged with mismanaging a loan relationship. After agency proceedings were completed and sanctions ordered, the Sixth Circuit held that the FDIC had made two fundamental legal errors in adjudicating the case against the bank CEO who had appealed. However, instead of remanding the case to the FDIC, the Sixth Circuit conducted its own review and concluded that the FDIC had, on the evidence presented, made a supportable decision to ban and fine the executive.

Continue Reading Holding Tight on Agency Reins – SCOTUS Today

The Supreme Court issued no fewer than six opinions on Thursday, May 18, addressing questions including whether an internet platform might be held liable as an aider and abettor of terrorist activity, and whether Andy Warhol’s famous alterations of photos of the artist known as Prince violated the copyright of an almost-as-famous photographer.

Continue Reading Six Decisions, with Intellectual Property and Internet Communications Regarding Terrorist Activity at the Forefront – SCOTUS Today

With the Justices largely in agreement across the board, the Court today issued five opinions. One of them provides a usefully definitive view of the limited nature of the so-called “dormant Commerce Clause.” Two of them are criminal law cases in which all the Justices were united in reversing the Second Circuit and taking a textually literal, constricting view favorable to defendants as to what constitutes wire fraud and related theft of honest services. Another decision favors a non-citizen fighting removal from the United States, and yet another upholds the sovereign immunity of U.S. territorial governments and their agencies.

Continue Reading A Calm and Prolific Day at the Court, and a Better Day for Criminal Defendants Than for the Second Circuit – SCOTUS Today

Litigants and attorneys often assume—wrongly—that arbitration proceedings are completely confidential. In fact, there are many ways that private arbitration proceedings can become subject to public scrutiny.

Continue Reading Common Misconceptions About Confidentiality in Arbitration Proceedings

On Wednesday, April 19, the Court decided three cases that are interesting and instructive in following how the Justices, both nominal liberals and conservatives, attempt to apply textual methodology in assessing jurisdictional prerequisites, though not always reaching unanimous results.

Continue Reading The Sign of the Three—Text Rules: SCOTUS Today