In Ongoing Lawsuit Barrage, Professional Green Activists Disregard Due-Process Concerns

DOIAfter the Executive Branch changed hands a little over two years ago, professional environmental activists promised a steady stream of lawsuits against both private enterprises and the federal government. Such a bold pronouncement was great for the green activists’ fundraising, as environmental non-profits bragged of 100 to 700 percent increases in donations.

Those groups have certainly followed through on their pledge, filling federal district and appellate courts’ dockets with lawsuits. One group’s homepage, for instance, boasts the group has sued the administration 95 times, “and we’re nowhere near finished.” In their zeal to vastly expand the applicability of federal laws and regulations and to block reasonable federal policy changes, green activists have shown little interest in the due-process rights of businesses and individuals. Lawsuits to overturn two federal policies illustrate this disregard. Continue reading “In Ongoing Lawsuit Barrage, Professional Green Activists Disregard Due-Process Concerns”

What Did We Learn From the Supreme Court Oral Argument in Apple v. Pepper?

supreme courtWe’ve blogged previously about the Supreme Court’s biggest antitrust case of the October Term 2018, Apple v. Pepper. The case asks the Court to decide whether iPhone users who buy apps from Apple’s App Store may sue Apple for alleged antitrust violations, or whether only third-party app developers may bring such claims. The answer turns on whether and how the Court applies the rule announced in Illinois Brick Co. v. Illinois, which holds that only the direct purchaser of a good or service may sue an allegedly abusive monopolist for damages.

The Court heard oral argument in the case on Monday morning. Apple is represented by Daniel Wall of Latham & Watkins. He argues that the Illinois Brick rule is dispositive here for Apple because the plaintiffs’ antitrust claim hinges on precisely the sort of “pass through” theory of harm that Illinois Brick prohibits. Continue reading “What Did We Learn From the Supreme Court Oral Argument in Apple v. Pepper?”

Florida Supreme Court Rejects Legislative Adoption of Daubert Standard for Expert Testimony

Featured Expert Contributor, Judicial Gatekeeping of Expert Evidence


Evan M. Tager, a Partner in the Washington, DC office of Mayer Brown LLP, with Matthew Waring, an Associate with the firm.

For a printer-friendly PDf of this post click here.

The reliability standard that the Supreme Court articulated in Daubert v. Merrell Dow Pharmaceuticals, Inc. is generally considered the touchstone for determining whether expert testimony is admissible in court. But although all federal courts (and most state courts) follow Daubert, a handful of states still adhere to the much older Frye standard, which looks to whether a scientific technique is “sufficiently established to have gained general acceptance in the particular field in which it belongs.”

In 2013, it appeared that Florida—one of these holdout states—had finally joined the ranks of Daubert jurisdictions when the Florida Legislature enacted legislation amending the Florida Rules of Evidence to incorporate the Daubert standard. But last month, in DeLisle v. Crane Co., the Supreme Court of Florida held that the legislature acted unconstitutionally, thwarting—at least for now—Florida’s entry into the league of Daubert jurisdictions. Continue reading “Florida Supreme Court Rejects Legislative Adoption of Daubert Standard for Expert Testimony”

Cert Petitions May Mean Supreme Court Will Clarify Clean Water Act Jurisdiction


Featured Expert Contributor, Environmental Law and Policy

Samuel B. Boxerman, Sidley Austin LLP, with Ben Tannen, Sidley Austin LLP

The definition of waters of the United States is central to the CWA.  At its core, the Act bans “the discharge of any pollutant” except in compliance with other provisions of the Act, such as the National Pollutant Discharge Elimination System (“NPDES”) permitting program.  33 U.S.C. § 1311(a).  “Discharge of a pollutant” is defined in relevant part as “any addition of any pollutant to navigable waters from any point source,” where (i) “navigable waters” are “the waters of the United States,”  and (ii) a “point source” is “any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged.”  See 33 U.S.C. §§ 1362(7), (12) and (14). Continue reading “Cert Petitions May Mean Supreme Court Will Clarify Clean Water Act Jurisdiction”

The Government’s Duty to Preserve Evidence in a Non-Intervened “Qui Tam” Case

Stephen_Wood_03032014Featured Expert Contributor, False Claims Act

Stephen A. Wood, Chuhak & Tecson, P.C.

For a printer-friendly PDF of this post, click here.

Every civil litigator and trial lawyer knows (or should know) that a party to litigation has a duty to preserve evidence and documents for use in discovery and trial.  The rule applies to all litigants, whether public or private entities or persons.  It may even be applied to non-parties in certain circumstances, although typically non-parties face more limited obligations.

The False Claims Act qui tam provisions present a unique set of challenges bearing on the government’s duty to preserve.  Qui tam complaints are filed under seal to facilitate the government’s investigation after which it may elect to take the case over.  When it declines to intervene in the qui tam case, the government typically considers itself to be a non-party, eschewing any duty to preserve evidence.  Yet, for many reasons, the government should be treated as a party for purposes of the duty to preserve evidence in those cases in which it has declined to intervene.  And in the face of a breach of that duty, both the government and the qui tam relator should face the prospect of sanctions as the circumstances warrant. Continue reading “The Government’s Duty to Preserve Evidence in a Non-Intervened “Qui Tam” Case”

Addressing the Custody Conundrum: A Cooperative Federal/State Effort to Build Market Infrastructure and Regulatory Clarity Around Digital Assets

Alter_Daniel_web2_8784879218361Featured Expert Contributor, Legal & Regulatory Challenges for Digital Assets

By Daniel S. Alter, a Shareholder in the New York, NY office of Murphy & McGonigle P.C.

Would-be custodians for cryptocurrencies and other digital assets seem very bullish these days.  Mike Belshe, CEO of BitGo, Inc.—a leading developer of cryptocurrency security products that was recently approved by South Dakota to operate a state-chartered trust company—opined that “[c]ustody has been the missing piece of cryptocurrency market infrastructure and this gap has kept institutional investors out of the market.”

Market observers have echoed this view.  A contributor to wrote, “The introduction of custodianship is expected to herald the entry of institutional capital into the industry, acting as the missing link investors and fund managers have been seeking for entrance into the crypto market.”

Not so fast. Continue reading “Addressing the Custody Conundrum: A Cooperative Federal/State Effort to Build Market Infrastructure and Regulatory Clarity Around Digital Assets”

Still Marching to its Own Drummer: The Eastern District of Texas on Patent Venue

Kaminski_Jeffri_LRFeatured Expert Contributor, Intellectual Property—Patents

Jeffri A. Kaminski, Venable LLP

The U.S. Court of Appeals for the Federal Circuit’s interpretation of the patent venue statute, 35 U.S.C. § 1400(b), as articulated in TC Heartland LLC v. Kraft Foods Group Brands LLC, has created a degree of uncertainty about the proper place to bring patent infringement suits. For example, see our previous posts on this issue: Supreme Court Alters Patent Venue Landscape: Eastern District Texas No Longer the Heartland of Patent Litigation; and Change in Law of Patent Venue May Not Be Get Out of Texas Card.

In Seven Networks v. Google, Eastern District of Texas Judge Rodney Gilstrap provided direction for litigants bringing or defending suits in venues in which they are not incorporated. Prior to TC Heartland, courts interpreted the patent venue statute broadly and generally allowed suits to be brought in any venue where an allegedly infringing device was sold. After TC Heartland, the venue paradigm has been less clear. Continue reading “Still Marching to its Own Drummer: The Eastern District of Texas on Patent Venue”