Commercial Litigation Update

Our colleague Stuart Gerson of Epstein Becker Green has a new post on SCOTUS Today that will be of interest to our readers: A Hint About the Future of the Affordable Care Act.

The following is an excerpt:

There were no opinions delivered today, only very heated and important argument in the consolidated cases of Brnovich v. Democratic National Committee and Arizona Republican Party v. Democratic National Committee.

These cases concern whether two of Arizona’s voting policies—one prohibiting counting provisional ballots cast on election day outside of a ...

Our colleague Stuart Gerson of Epstein Becker Green has a new post on SCOTUS Today that will be of interest to our readers: Court’s Unanimous Opinion in Federal Tort Claims Act Case Provides Useful Guidance on Claim/Issue Preclusion.

The following is an excerpt:

The Court rendered a unanimous opinion (per Thomas, J., with Sotomayor, J., concurring) in the case of Brownback v. King. The Respondent, King, suffered personal injury in a confrontation with Brownback and Allen, two members of a federal task force, and brought suit against them and others under the Federal ...

Our colleagues Stuart Gerson and Daniel Fundakowski of Epstein Becker Green have a new post on SCOTUS Today that will be of interest to our readers: "Court Declines Resolving Circuit Split on What Constitutes a 'False' Claim, but Will Consider Legality of Trump Abortion Gag Rule."

The following is an excerpt:

While this blog usually is confined to the analysis of the published opinions of the Supreme Court, several of this morning’s orders are worthy of discussion because of their importance to health care lawyers and policy experts. Guest editor Dan Fundakowski joins me in ...

Our colleague Stuart Gerson of Epstein Becker Green has a new post on SCOTUS Today that will be of interest to our readers: Biden DOJ No Longer Argues That the ACA Is Unconstitutional

The following is an excerpt:

While the Supreme Court is in recess this week, and public attention is drawn to the trial of Donald Trump in the Senate, there is one event at the Court that is worthy of attention, particularly by those who counsel clients in the health care space. In a letter to the Court, the Biden Department of Justice (“DOJ”) has reversed the position that the previous administration had ...

Our colleague Stuart Gerson of Epstein Becker Green has a new post on SCOTUS Today that will be of interest to our readers: Court Favors Judicial Review in Railroad Benefits Case, Remands Two Cases Concerning Nazi-Era Looted Property.

The following is an excerpt:

The Supreme Court decided three cases Wednesday, two of them related. None of them could be characterized as a blockbuster ruling or even a matter of broad national interest. One of them, however, will garner much inside-baseball commentary because the 5-4 majority that decided it included the Chief Justice and Justice ...

Our colleague Stuart Gerson of Epstein Becker Green has a new post on SCOTUS Today that will be of interest to our readers: Court Refuses to Take Another Look at Case Questioning Whether Judge or Arbitrator Should Decide Scope of Arbitration Agreement

The following is an excerpt:

The overall quiet at the Court on Monday was only lightly interrupted with its per curiam decision in Henry Schein, Inc. v. Archer & White Sales, Inc., dismissing the petition for certiorari to the Fifth Circuit as improvidently granted. I mention it because the dismissal leaves open the questions that ...

Our colleague Stuart Gerson of Epstein Becker Green has a new post on SCOTUS Today that will be of interest to our readers: Unanimous Court Applies “Plain Meaning” Approach in Bankruptcy Decision

The following is an excerpt:

Bankruptcy is not usually a subject that I would cover in this blog, but I write about the Supreme Court’s unanimous decision today in City of Chicago v. Fulton for two reasons. The first is obvious in that, in these uncertain times, there is an unfortunate number of companies that are contemplating reorganization and others that, as a result, are taking ...

Most have heard the cliché “don’t do the crime, if you can’t do the time.” For many criminal defendants, however, a significant factor in the time served is not just the crime committed, but rather the so-called “trial penalty.”

A “trial penalty” describes situations where a defendant chooses to proceed to trial instead of accepting whatever plea deal the Government had offered and receives a significantly lengthier sentence than she would have received had she not gone to trial. Often the “trial penalty” results in a defendant receiving a much lengthier ...

The COVID-19 pandemic has foisted ten years of technological advances on the legal sector in a period of ten months. In June of 2020, when the novel Coronavirus was truly novel, we blogged (here) about whether virtual jury trials would be part of the “new normal” and discussed some of the potential pitfalls associated with remote courtroom proceedings.

What seemed revolutionary just a few short months ago, does, indeed, appear to be the “new normal,” ushered in by the pandemic. On January 7, 2021, the New Jersey Supreme Court issued an Order resuming civil jury trials in a ...

On October 21, 2020, President Trump signed into law the “Due Process Protections Act” (“DPPA”), P.L. No. 116-182, 134 Stat. Ann. 894, which was effective upon enactment. Receiving rare bi-partisan support in both houses of Congress, the new law seeks to bring balance to the power dynamic between the prosecution and the defense by requiring federal courts at the outset of a case to put the government on notice of its constitutional discovery obligations and the potential consequences for flouting those obligations.

By directly amending Federal Rule of Criminal Procedure ...

To constitutional scholars, the line between Alexander Hamilton and the federal judiciary will always connect through The Federalist No. 78, wherein Hamilton anticipated the doctrine of judicial review by concluding that federal courts would have the “duty…to declare all acts contrary to the manifest tenor of the constitution void.”

But surely Hamilton never anticipated that two-and-half centuries later the federal judiciary he helped create and define would parody a Broadway musical about him to discuss the resumption of jury trials during a pandemic. But, alas, we ...

We have previously discussed (here and here) the complex issues surrounding the resumption of jury trials during the COVID-19 pandemic. We cautioned that the various experimental efforts to resume jury trials taking place in courts around the country were likely to meet with a host of practical and jurisprudential problems. A few weeks later, it appears that our assessment was, if anything, too optimistic. Many of the states that had been taking first steps toward resuming jury trials in some form are now shutting down those experiments because of the spike in COVID-19 cases that is ...

Mark Twain once said: “Trial by jury is the palladium of our liberties. I do not know what a palladium is, but I am sure it is a good thing!” If Mr. Twain were alive today, he wouldn’t be quite so sure that jury trials conducted during the COVID-19 pandemic are really such a good thing.

Recent news reports suggest that a vaccine may not be available until next spring at the earliest, and it may take months before that vaccine can be widely distributed. But the demands of justice do not rest, and courts—already overburdened with growing dockets before the pandemic—are struggling to ...

The Third Circuit recently affirmed the significant discretion that district court judges have to manage their dockets when it confirmed that “good cause” must be shown under Federal Rule Civ. P. 16(b)(4) to add a party or amend a pleading after the deadline in a district court’s scheduling order has passed rather than Rule 15(a)’s more liberal (“[t]he court should freely give leave when justice so requires”) standard. In Premier Comp Solutions, LLC v. UPMC, 970 F.3d 316 (3d Cir. 2020), the plaintiff made a motion to amend its complaint and add a party, relying on Rule 15 of ...