Commercial Litigation Update

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.

While some people thrive in the land of TikTok dances, others struggle to limit their thoughts to 140 characters leading Twitter to increase their character limit to 280 in 2017. In fact, as of February 2019 Internet users believe social media platforms have increased access to information and the ease of communication by 57 percent.

The Supreme Court issued a single opinion today. Wilkins v. United States concerns a property rights dispute between the federal government and two owners of land near the Bitterroot National Forest in rural Montana to which the government claims an easement that, it argues, includes public access, which the petitioners dispute. They, therefore, sued the government under the Quiet Title Act (the “Act”), which allows challenges to the United States’ rights in real property. The government moved to dismiss on the ground that the petitioners’ claim is barred by the Act’s 12-year statute of limitations. See 28 U. S. C. §2409a(g). The issue before the Court was whether the time bar is jurisdictional or, as the Court held in a 6-3 decision, a nonjurisdictional claims-processing rule.

While the backlog of argued cases pending decision has been growing substantially, the Court rendered only one opinion today, and it was unanimous.

Almost nine months ago, on June 13, 2022, the U.S. Supreme Court issued a long awaited decision in ZF Automotive US, Inc. v. Luxshare, LTD. that sought to resolve a decades-old circuit split regarding whether 28 U.S.C. § 1782 – which permits litigants to obtain evidence in the U.S. “for use in a proceeding in a foreign or international tribunal” – applies to private, commercial international arbitrations. Practitioners were initially hopeful that the Supreme Court had conclusively resolved this issue when it unanimously held that only bodies “that exercise governmental authority” constitute a “foreign or international tribunal” under section 1782, which meant that parties engaged in private, commercial arbitrations and ad hoc arbitrations abroad could not use the statute to obtain discovery from companies and individuals in the U.S. However, in doing so, the Court left open the possibility that “sovereigns might imbue an ad hoc arbitration panel with official authority,” leaving courts (and litigants) to grapple with the question of whether and when a foreign body may be imbued with governmental authority sufficient to constitute a foreign or international tribunal for purposes of section 1782 discovery. Few courts have addressed this lingering question in the aftermath of ZF Automotive, and those that have have interpreted the decision very restrictively, indicating that the universe of international arbitrations that section 1782 now covers may be considerably narrower than it has been in the past.

Thomson Reuters Practical Law has released the 2023 update to “Trade Secrets Litigation,” co-authored by our colleague Peter A. Steinmeyer.

The Supreme Court decided two cases today, and though neither of them presents the sort of widely consequential matter that, say, the President's student loan forgiveness plan that was argued this morning does, each has interesting aspects. Both are decided on the now-vogueish doctrine of textualism, though each shows divisions among the Justices that prove again that not only can Justices who have differing jurisprudential philosophies agree with one another as to statutory meaning, but that Justices with the same jurisprudential philosophy can disagree with one another on text as well. Thus, while there are cases, like Dobbs, where one might accurately predict the outcome on the basis of philosophy or alignment with the preferences of the President who nominated various Justices, there is a host of cases where labels don't hold up at all.