New York Regulator Approves Internal Use of “Permissioned” Blockchain by Commercial Bank—Other Institutions Should Follow

Guest Commentary

thompson_max_web_10262018_7561796858267778162By Maxwell T.S. Thompson, an Associate with Murphy & McGonigle, P.C. in the firm’s New York, NY office. Prior to joining the firm, Mr. Thompson was Assistant General Counsel and Assistant Corporate Secretary with Bank Leumi USA and served in the General Counsel’s office of the New York State Department of Financial Services.

On December 4, 2018 the New York State Department of Financial Services (“NYDFS”) announced that it had approved an application by Signature Bank to offer a new blockchain-supported digital payment platform named “Signet.” Housed entirely within Signature, the Signet platform “will leverage blockchain technology in its architecture, allowing commercial and asset management clients to make payments in U.S. dollars 24-hours-a-day, 7-days-a-week, 365 days a year.”1 Continue reading “New York Regulator Approves Internal Use of “Permissioned” Blockchain by Commercial Bank—Other Institutions Should Follow”

DOJ Modifies Policy on Credit for Cooperation by Corporate Employees

Featured Expert Contributor, White Collar Crime & Corporate Compliance

Gregory A. Brower, a Shareholder with Brownstein Hyatt Farber Schreck, LLP in Las Vegas, NV and Washington, DC, with William E. Moschella, a Shareholder in the firm’s Washington, DC office.

Following an internal review of the Department of Justice’s policy concerning individual accountability in corporate cases, Deputy Attorney General Rod Rosenstein recently announced significant changes to the policy. Under the new policy, DOJ will treat civil cases differently than criminal cases when evaluating a corporation’s cooperation in an investigation. This change is a modification of the 2015 policy memo issued by then-Deputy Attorney General Sally Yates that required DOJ lawyers to investigate any individuals responsible for illegal corporate conduct before settling a case. The modified policy restores the discretion of DOJ attorneys in civil cases to approve settlements without investigating every individual corporate employee who might potentially be responsible for the illegal conduct. Continue reading “DOJ Modifies Policy on Credit for Cooperation by Corporate Employees”

Kimberly-Clark Seeks Supreme Court Review in “Flushable” Wipes Case

roibal_lucia_webGuest Commentary

By Lucía Roibal, an Associate with Morrison & Foerster LLP in the firm’s San Francisco, CA office. This commentary is reposted with permission, originally appearing on November 30, 2018 in the firm’s Class Dismissed  blog.

On September 6, 2018, Kimberly-Clark and affiliates filed a petition for writ of certiorari in Kimberly-Clark, et al. v. Davidson, No. 18-304, following a decision in the Ninth Circuit denying Kimberly-Clark’s motion to dismiss.  As noted in previous posts (here and here), the Ninth Circuit had resolved a split among district courts in the circuit and held that a previously deceived consumer may have standing to seek an injunction against false advertising or labeling if he or she sufficiently alleges intent to repurchase the product in the future.  In Kimberly-Clark’s petition, the companies ask the Supreme Court to resolve the issue of whether a consumer, who after using a product and determining that a representation concerning that product is allegedly misleading, can plausibly allege a “real and immediate threat” that she will be deceived by the same representation in the future so as to establish standing to seek an injunction. Continue reading “Kimberly-Clark Seeks Supreme Court Review in “Flushable” Wipes Case”

Update: Justices Seek Federal Government’s Views on Pending Clean Water Act Suit Petitions

supreme courtIn a November 20 Featured Expert Contributor post, Cert Petitions May Mean Supreme Court Will Clarify Clean Water Act Jurisdiction, Sidley Austin LLP partner Sam Boxerman and his colleague Ben Tannen discussed two related certiorari petitions pending before the U.S. Supreme Court. Both petitions ask the Court to review circuit court decisions that held discharges through groundwater are an addition of a pollutant to “waters of the United States” from a point source.

Today, the Court released an Order calling for the views of the Solicitor General on the petitions in Hawai’i Wildlife Fund v. Cty. of Maui, Case No. 18-260 (Aug. 27, 2018) and Kinder Morgan Energy Partners, L.P. v. Upstate Forever, Case No. 18-268 (Aug. 28, 2018).

The Order asked the Solicitor General to provide his views on the petitions by Friday, January 4, 2019.

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.

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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.

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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”