Commercial Litigation Update

Most readers of this blog rarely, if ever, become involved in homicide cases.

Nevertheless, the Supreme Court’s essentially unanimous decision in McElrath v. Georgia should be of interest because it deals with the issue of inconsistent verdicts, something that many of us have experienced, but this time, as such verdicts might affect double jeopardy. Damian McElrath was charged with malice murder, felony murder, and aggravated assault for having killed his mother. A jury returned a split verdict against him, finding him “not guilty by reason of insanity” with respect to ...

Since 2018, seven states—California, Connecticut, Florida, Georgia, New York, Utah, and Virginia—have enacted laws requiring specific disclosures in commercial financing transactions. Three of those enactments came in 2023, and similar bills are currently pending in a handful of other states.

While these disclosure laws share the same aim—to encourage competition and provide for a more informed decision-making process—they are quite varied with respect to the transactions and institutions to which they apply as well as the information that must be disclosed. And a ...

Today might ultimately be remembered as among the most consequential days in the history of the Supreme Court and the nation. That will be determined when a decision in Trump v. Anderson is issued.

As any reader of this blog likely is aware, the issue in the Anderson case is whether the Supreme Court of Colorado correctly applied Section 3 of the 14th Amendment in disqualifying ex-President Donald Trump from the 2024 presidential primary election in that state. While I’ll refrain from much comment until we actually have a decision to discuss, I note that I, apparently like many ...

On January 16, 2024, New Jersey Governor Phil Murphy signed into law Senate Bill No. 332, “An Act concerning online services, consumers, and personal data” (“SB 332”).  New Jersey is the fourteenth state to pass a comprehensive consumer privacy bill, and the obligations and rights created by SB 332 follow the format used in a growing number of states that have passed comprehensive consumer privacy laws.

Scope and Exemptions

SB 332 imposes obligations on “controllers”  – entities or individuals that determine the purpose and means of processing personal data – that ...

The statute of limitations is a powerful threshold defense for defendants in civil litigation.  Article 2 of New York’s Civil Practice Law and Rules (“CPLR”) and other New York statutory provisions set forth deadlines by which parties must “interpose” their claims, lest they be barred from pursuing them.

The CPLR is clear that limitations periods are not to be trifled with—not even courts can extend them: “An action . . . must be commenced within the time specified in this article unless a different time is prescribed by law or a shorter time is prescribed by written ...

Although the Supreme Court already has heard a number of significant arguments, this term has not yet seen any major substantive opinions. This is not to say that there isn’t a lot going on at, or on the way to, the Court.

Indeed, with national division being so profound as the 2024 election cycle is underway, it is not unlikely that the Court will opine on important reproductive rights cases generated in the wake of the Dobbs decision, on whether the defeated ex-president can be barred from state ballots under Section 3 of the 14^th Amendment, and, in light of filings made just today, on ...

On October 27, 2023, the Federal Trade Commission (“FTC”) approved an amendment to the Safeguards Rule that requires non-banking financial institutions (e.g., mortgage companies, mortgage brokers, and creditors) to notify the FTC when certain data breaches and other security events occur.  The Safeguards Rule, promulgated by the FTC in 2002, has long required non-banking financial institutions to create, implement, and maintain a comprehensive security program to keep the information and data of its customers safe.  Now, if one of these institutions suffers a security ...

New episode of our podcast, Speaking of Litigation:  FBI! Open up! Is your organization prepared to handle a government investigation?

Guilty or not, having a preparedness plan in place for when a government agency comes knocking is just as important as conducting a company fire drill.

In this episode of Speaking of Litigation, Epstein Becker Green litigators Alkida Kacani, George Breen, and Eric Moran discuss a few of the most common (and invasive) legal maneuvers government investigators may take when approaching a company or its employees.

When dealing with civil ...

On December 1, 2023, Federal Rule of Evidence (“FRE”) 702 will be amended, following the Supreme Court’s adoption of the amendment earlier this year. FRE 702 governs the admission of expert testimony in the federal courts, and has been the subject of much case law interpreting it already. Understanding the changes to FRE 702, and the impetus behind those changes, will be critical for litigants in federal court to ensure that the expert testimony they present in support of their claims or defenses remains admissible.

As adopted by the Supreme Court and submitted to Congress, the ...

In an indictment announced on October 26, 2023 in Miami, the U.S. Department of Justice, Criminal Division’s Fraud Section, working with the FBI and HHS-OIG, brought what may be only the second federal criminal charges directly related to the Medicare Advantage (Medicare Part C) risk adjustment payment methodology.  DOJ enforcement in the Medicare Advantage risk adjustment space overwhelmingly has proceeded civilly under the False Claims Act. Although the allegations suggest conduct far more troubling than prior civil cases under risk adjustment, these criminal charges ...