Commercial Litigation Update

New York State Rifle & Pistol Association, Inc. v. Bruen is the long-awaited New York gun licensing decision that has been hotly debated since its filing. Especially in light of recent school shootings, that debate is likely to intensify now that the case has been decided. As many predicted, the decision, overturning the state’s statute, provides a stark split between the Court’s predominant conservatives and its liberals.

I'm currently in the wilds of Alaska, learning about the training of sled dogs. Nevertheless, word of the Supreme Court's five most recent decisions has traveled northward. While none of these decisions is earthshaking, they are not uninteresting or unimportant, especially to those like health care and employee benefits lawyers.

On June 15, the Court decided five cases and dismissed a sixth. A case of great importance to health care lawyers, regarding the availability of judicial review of Medicare rates for pharmaceuticals, and another of great importance to labor and employment lawyers, holding that a significant portion of the California Private Attorneys General Act's (PAGA’s) delegation of state enforcement power is preempted by federal law, lead the pack.

Recent New York legislation will afford a class of sexual abuse victims the opportunity to sue their abusers, where they previously would have been time-barred. On May 24, 2022, New York Governor Kathy Hochul signed into law the Adult Survivors Act (“ASA”) (S.66A/A.648A), which creates a one-year lookback window for alleged survivors of sexual assault that occurred when they were over the age of 18 to sue their alleged abusers regardless of when the abuse occurred. The one-year window will begin six months from signing – on November 24, 2022 and will close on November 23, 2023. In 2019, New York extended the statute of limitations to 20 years for adults filing civil lawsuits for  certain enumerated sex offenses. However, that legislation only affected new cases and was not retroactive. In contrast, the ASA permits individuals who were over the age of 18 when any alleged abuse occurred to sue for civil damages regardless of the statute of limitations.

The Court has had a busy day, having decided cases of significance to litigators and interest groups, but none is the blockbuster decision in societally divisive matters that the general public has been awaiting. In short, this is a business-as-usual day, with opinions sometimes showing broad consensus on the Court, but with some not-unexpected dissents.

The Judicial Conference of the United States’ Committee on Rules of Practice and Procedure seems poised to advance proposed amendments to Federal Rule of Evidence 702, after the Advisory Committee on Evidence unanimously voted to approve the proposed amendments and recommended that the Committee on Rules of Practice and Procedure refer the amendments to the Judicial Conference for a full vote.

Notwithstanding the fact that, as we approach the end of the term, the Court still had 30 cases to decide as of Wednesday morning, June 8, the day’s count has only been reduced by one. So, expect a flurry of cases with the most controversial of them (think firearms and reproductive rights) perhaps coming down at the end.

The Federal Trade Commission (“FTC”) recently announced its long awaited proposed changes to its Guides Concerning the Use of Endorsements and Testimonials in Advertising (the “Endorsement Guides”). The Endorsement Guides were first enacted in 1980 and are intended to help businesses ensure that their endorsement and testimonial advertising conforms with Section 5 of the FTC Act, which prohibits “unfair or deceptive acts or practices in or affecting commerce,” including false advertising. Among the proposed changes to the Endorsement Guides, are those related to social media platforms and their users, deceptive endorsements by online “influencers,” businesses’ use of consumer reviews, and the impact of advertising on children.

The Court has started the week with three decisions emphasizing textual readings, two of them unanimous and a third drawing Justice Kagan into the majority with the Court’s six nominal jurisprudential conservatives.

Imagine you’re a longtime employee of a company that operates in a highly regulated industry. Your employment has seen its ups and downs throughout the years, and you have witnessed many transitions: new policies and procedures implemented, new leadership appointed, and new rules and regulations with which your company must comply to remain in lawful standing with regulators. Occasionally, you’ve observed activity that might be questionable but you never thought much about it. That is, until you’re called into a meeting with your company’s lawyers who inform you that “the U.S. Attorney’s Office wants to meet with you.” What do you do next?