Commercial Litigation Update

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.

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.

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.

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.

Once again, with a substantial backlog of cases—some of them potentially controversial—argued and pending decision, the Court continues to sail in relatively calm waters.

As a business owner, you have invested time, money, and effort into creating a brand that represents your company and sets it apart from competitors. Protecting your investment through registering and enforcing your trademark plays an essential role in ensuring your efforts were not in vain. Without proper protection, your trademark, and by extension, your brand, may be vulnerable to infringement or dilution by competitors, resulting in loss of customers, revenue, and reputation. This is the first in a series of articles discussing how business owners can protect and enhance the goodwill developed in their brand.

While the substantial backlog of decisions has many observers waiting for a flood of rulings, the Supreme Court is moving at its own pace. Thus, the Court has issued a single opinion today, but especially for readers who are involved in administrative law challenges to administrative agency determinations, it is an important one. And it might become even more significant to the extent that it augurs future limitations on agency autonomy.

Last week, blockchain analysis firm, Chainalysis, held its annual conference, Links 2023, in New York City, where private and public sector leaders met to discuss emerging issues impacting the blockchain, cryptocurrency, and digital asset space. The conference featured presentations from notable public and private sector leaders, including government regulators, enforcement bodies who investigate and assist in prosecuting virtual asset fraud, and executives from financial institutions.

The U.S. Department of Justice (“DOJ”) remains busy updating its policies relating to corporate prosecutions, evaluations of compliance programs, and voluntary disclosures. In a pair of speeches at March’s ABA White Collar Conference in Miami, Deputy Attorney General Lisa Monaco and Assistant Attorney General Kenneth Polite, Jr. returned to the Department’s revision of its Evaluation of Corporate Compliance Program (“ECCP”) by unveiling several significant policies, including those relating to a corporation’s access to and retention of employee electronic communications as well as a company’s compensation structure for executives and employees.

On January 9, 2023, the Supreme Court held oral arguments on a significant issue regarding the application of the attorney-client privilege in a case called In re Grand Jury, Docket No. 21-1397, 598 U.S. ___ (2023). In re Grand Jury was appealed to the Supreme Court from the Ninth Circuit. The issue before the Supreme Court was which test should apply to a “dual-purpose” communication. A dual-purpose communication occurs when a communication may have a business purpose, but also asks for legal advice. This type of communication is typical between lawyers providing both legal and business advice to employers, and it is very common for lawyers in an in-house counsel role to frequently have dual-purpose communications with their employers. Although the Supreme Court decided to dismiss the writ of certiorari after oral arguments occurred in this case, it is important to understand why this test would have been significant to all different types of attorneys, especially because it is becoming increasingly more common for attorneys to wear “two hats” by providing both business advice and legal advice regularly to clients.