Commercial Litigation Update

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.

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.

Our colleagues Erik W. Weibust, Peter A. Steinmeyer, and Stuart M. Gerson co-authored an article in the Legal Backgrounder, published by the Washington Legal Foundation, titled “After 200+ Years Under State Law, FTC Proposes to Sweep Away All Noncompetes in Unauthorized Federal Power Grab.”

Following is an excerpt:

For over 200 years, the regulation of noncompetition agreements (“noncompetes”) has been entirely the province of state law. Forty-seven states currently permit noncompetes, and the most recent state to ban them was Oklahoma in 1890. Yet the ...