Commercial Litigation Update

For more than a decade, California courts have wrestled with the challenge of how to resolve disputes over the authenticity of electronically signed arbitration agreements.

While the State Supreme Court has not yet offered conclusive guidance, decisions by the State’s various appellate courts offer insight into what factors a court is likely to consider.

As we have noted before, the holding in Epic Systems v. Lewis contributed to a proliferation of arbitration agreements with class and collective action waivers. Our prior analysis predicted certain datapoints one should ...

The U.S. Supreme Court did not issue any merits opinions yesterday, but it did issue two orders denying cert.

One of them, Nicholson v. W.L. York, Inc., is potentially significant for litigants of discrimination claims under Section 1981 of the Civil Rights Act of 1866, 42 U. S. C. §1981.

The result of a second, in Snope v. Brown, a firearms case, might surprise some observers of the Court.

Readers of this blog will recall our recent discussion concerning the U.S. Supreme Court’s decision in Loper Bright Enterprises v. Raimondo, in which the Court overruled the long-standing doctrine of Chevron U.S.A. Inc. v. Natural Resources Defense Counsel.

Under Chevron, courts had been required to defer to “permissible” agency interpretations of ambiguous statutes even where a reviewing court might have read the statute differently from the agency.

Instead, the Court held in Loper Bright that the Administrative Procedure Act requires courts to exercise their independent judgment in deciding whether an agency has acted within its statutory authority, and courts may not defer to an agency interpretation of the law simply because a statute is ambiguous. As the Court put it, “Chevron’s presumption is misguided because agencies have no special competence in resolving statutory ambiguities. Courts do.” 

This post’s title comes from the 1960s doo-wop hit “Stay,” by Maurice Williams and the Zodiacs. I recognize that most practicing lawyers today are too young to know of this classic.

However, its opening line echoes in yet another action of the U.S. Supreme Court, today’s order in Noem v. Doe, granting a stay (for at least a bit longer) of a district court order that had blocked the deportation of more than a half million immigrants from Cuba, Haiti, Nicaragua and Venezuela.

Those persons were in the United States under parole programs that gave them temporary legal status. Today, the Court is allowing the Department of Homeland Security to deprive those persons of that protection and to subject them to deportation, notwithstanding that ongoing legal proceedings could lead to a restoration of the parole programs at issue.

The U.S. Supreme Court did not issue any merits opinions today, but there were two dissents from denials of cert. that merit attention, both concerning the First Amendment.

One of them has particular importance for parents interested in the rights and limits of their children’s self-expression in their schools. The other, which affects only a small group of people, is worthy of note, if for no other reason than that it is passionately and beautifully written.

The first of these cases that could not command the votes of four Justices, the number required for cert. to be granted, was L.M. v. Town of Middleborough. As Justice Alito, who was joined in dissent by Justice Thomas, asserted, the case which the dissenters believed was one “of great importance for our Nation’s youth” concerning “whether public schools may suppress student speech either because it expresses a viewpoint that the school disfavors or because of vague concerns about the likely effect of the speech on the school atmosphere or on students who find the speech offensive.”

Today, an evenly divided 4–4 U.S. Supreme Court, with Justice Barrett having recused herself, decided in Oklahoma Statewide Charter School Board v. Drummond to leave in place the holding of the Oklahoma Supreme Court blocking an effort in that state to create the nation’s first faith-based charter school. 

This tie leaves open the question of whether states with taxpayer-funded charter school programs are constitutionally required to incorporate religious institutions. The one-line per curiam order gives no indication of how the Justices voted in the case, although the Chief Justice’s questioning during the oral argument—noting that governmental oversight of a charter school is a far greater connection to religion than merely appropriating money from which the school benefits—suggests that he joined the three jurisprudential liberals.

Justice Barrett’s recusal is attributed to her friendship with an advisor to the Catholic school at the center of the case, and leaves open the question of whether she would participate in a future case raising the establishment issue. Note that both the Chief Justice and Justice Barrett are practicing Catholics. We have some evidence of what the Chief Justice thinks with respect to the involvement of government in religious schools, but we don’t yet know Justice Barrett’s view.

In Part One of this series, we discussed the May 12, 2025, U.S. Department of Justice Criminal Division’s new guidance memo on white-collar enforcement priorities in the Trump 2.0 Administration entitled “Focus, Fairness, and Efficiency in the Fight Against White-Collar Crime.” In this new DOJ memo, and in an accompanying speech by Matthew R. Galeotti, the Trump Administration’s appointed Head of the Criminal Division, the DOJ announced its priorities and areas of focus for white collar enforcement.

In Part Two of this series, we address the DOJ’s changes made the same day to its Corporate Enforcement and Voluntary Disclosure Policy (“the CEP”), contained within the Justice Manual. The revised CEP provides additional benefits to companies that self-disclose and cooperate. In his May 12^th speech, Galeotti asserted that prior versions of the CEP were “unwieldy and hard to navigate” and noted that the DOJ seeks to be “as transparent as [it] can to companies and their counsel about what to expect under [DOJ’s] policies.” As part of this effort to increase transparency, the revised CEP includes a flowchart of potential outcomes should a company decide to make a voluntary self-disclosure as well as definitions of key terms such as “Voluntary Self-Disclosure,” “Full Cooperation,” “Timely and Appropriate Remediation” and “Providing Cooperation Credit.”

New episode of our video podcast, Speaking of Litigation: What if the key to navigating your most complex legal challenges lies in the capabilities of artificial intelligence (AI)?

Join Epstein Becker Green attorneys Alkida Kacani and Christopher Farella as they sit down with Jonathan Murphy, Senior Manager of Forensics at BDO, to examine how AI is revolutionizing the practice of law.

Discover how advanced technologies are refining e-discovery, optimizing predictive analytics, and transforming document review processes. The discussion also takes a deep look into the ethical considerations of integrating AI into legal work, from safeguarding sensitive information to maintaining professional standards in a highly dynamic field.

Late on Friday, May 16, in the case of A.A.R.P. v. Trump, the U.S. Supreme Court enjoined the Trump administration from carrying out further deportations under the Alien Enemies Act of 1798 (the “Act”) of 176 Venezuelan detainees currently held in Texas.

The 7–2 majority (Kavanaugh, J., concurring) criticized the administration and the U.S. Court of Appeals for the Fifth Circuit for their earlier handling of the case. Indeed, the detainees were being put on buses for deportation as the case was being considered by the Supreme Court.

While only last month, the Court allowed the president to invoke the Act to speed alien removals while litigation continues in lower courts, the Court also commanded that those threatened with removal should receive notice that they are subject to the Act and entitled to a “reasonable” opportunity to challenge their removal before the federal court where they are being detained. The administration had argued that the president had summary power to expeditiously deport alleged members of the gang Tren de Aragua.

When multiple forces act on an object, its direction of motion is determined by the net force, which is the vector sum of all individual forces.  When this happens within our federal government, we call it “interesting times.”

Not unlike other areas of the United States federal government of late, the U.S. Copyright Office has been thrown into turmoil following a stunning sequence of events this past week.  As reported in multiple news outlets:

• On Thursday, May 8, 2025, President Donald Trump fired Librarian of Congress Carla Hayden, the first woman and the first African American to be librarian of Congress.^[i] The Library of Congress is the larger federal agency within which the U.S. Copyright Office resides.