Commercial Litigation Update

On May 16—for the second time in two weeks—the U.S. Supreme Court, this time unanimously, has taken a lenient, plaintiff-friendly view of whether a filing deadline is jurisdictional in the sense that it is governed by the occurrence of a triggering event or its discovery. In Harrow v. Department of Defense, the Court, per Justice Kagan, held that the 60-day appeal provision regarding a federal Merit Systems Protection Board (the “Board”) decision is not jurisdictional and is subject to equitable exceptions, such as waiver, forfeiture, and equitable tolling. Stuart Harrow ...

New episode of our video podcast, Speaking of Litigation: When it comes to dietary supplement class actions, there’s a little less class and a lot more action.

In this episode of Speaking of Litigation, Epstein Becker Green litigators Teddy McCormick, Jack Wenik, and Robert Lufrano explore the litigious minefield of class action battles, particularly focusing on the challenges faced by companies amid the proliferation of legal opportunists and lawsuits based on U.S. Food and Drug Administration (FDA) warning letters.

From navigating consumer protection statutes to deciphering FDA actions, our panelists discuss the legal intricacies shaping the dietary supplement industry's future. Tune in for an engaging conversation that unpacks the intersection of law, regulation, and commerce in the realm of dietary supplements.

The U.S. Supreme Court decided two cases yesterday, in each of which timing played a decisive role in the outcome. These cases did not produce the unanimity that has characterized most of the Court’s decisions so far this term. However, the divisions, while reflective of ideological differences among the Justices, are expressed with intellectual honesty and recognition of consequences. One of them, a copyright case, is of particular relevance to litigators involved, not just with copyright issues, but in many areas of the law concerning how the Court will interpret and apply ...

Since October 2021, the Department of Justice (DOJ) has been implementing a variety of changes to its corporate criminal enforcement policies. These efforts all reflect DOJ’s focus on individual accountability, punishing recidivist misconduct, prioritizing compliance and responsible corporate citizenship, promoting corporate self-disclosure, and incentivizing whistleblowers to come forward. The latest development in these efforts is the Criminal Division’s Pilot Program on Voluntary Self-Disclosures for Individuals that DOJ released on April 15, 2024.

On March 12, 2024, the Judicial Conference of the United States announced new guidance applying to case assignments in federal district courts, with the intent to curb “judge-shopping” by limiting litigants’ ability to pre-select a specific judge by filing in a division where only a single judge sits. Officially titled Guidance for Civil Case Assignments in District Courts, the new guidance recommends that courts randomly assign certain civil actions to any judge within a district rather than only the judge(s) in the division where the case is filed.

Under the guidance ...

A unanimous Supreme Court has eased the route for a plaintiff to prove a violation of Title VII of the Civil Rights Act of 1964 in Muldrow v. City of St. Louis.

Sergeant Jatonya Muldrow brought suit against the St. Louis Police Department when she was transferred from the department’s Intelligence Division to a uniformed role in one of the department’s police districts. Notwithstanding the fact that Sergeant Muldrow (whom her former supervisor addressed as “Ms.” rather than “Sergeant”) was a most dependable “workhorse” on the job, the supervisor determined that ...

The Supreme Court heard arguments this morning in the case of Joseph Fischer, one of more than 300 people convicted of corruptly obstructing an official proceeding: the congressional certification on January 6, 2021, of Joe Biden’s victory over Donald Trump.

If oral argument is any indication, there is considerable division between the jurisprudential liberals and conservatives concerning the breadth and effect of the obstruction statute. The Fischer case is important because of its potential effects on the numerous convictions entered in the District Court for D.C. and because Special Counsel Jack Smith has charged Trump with the same offense in his pending case.

Of less national significance are the two decisions issued by the Court today.

In Macquarie Infrastructure Corp. v. Moab Partners, L.P., No. 22-1165, 601 U.S. ___ (April 12, 2024), the United States Supreme Court held that “pure omissions are not actionable” for securities fraud asserted specifically under Section 10(b) of the Securities and Exchange Act of 1934 (the “Exchange Act”) and Rule 10b-5(b) promulgated thereunder even in circumstances where regulations require disclosure of related information.

The case concerned a business that stores liquid commodities including oil products. In 2016, the United Nations adopted a regulation that ...

Some commentators claim there are bitter divisions among the Justices, roiling the Court and its processes. Many of the same commentators were critical of the Court’s decision holding that former President Trump was not disqualified from reelection by Section 3 of the Fourteenth Amendment, but they tended to ignore that the Court’s operative opinion was unanimous. The tenor of that unanimity will be explored as soon as April 25, when the Court hears arguments in the immunity case of Trump v. United States.

At least for today, however, peace reigns on the bench, as the Court issued unanimous opinions in each of the three cases decided.

The United States Supreme Court’s pending decision in Consumer Financial Protection Bureau v. Community Financial Services Association of America Ltd., et al. (“Community Financial Services Association of America Ltd.”) in which the high court was asked to determine the constitutionality of the Consumer Financial Protection Bureau’s (“CFPB”) independent funding structure, continues to impact pending civil investigative demands brought by the CFPB.

On March 29, 2024, in Consumer Financial Protection Bureau v. Financial Asset Management, Inc., the United ...