Supreme Court Continues to Nibble Away at Alien Tort Statute’s Sweep

supreme courtYesterday’s decision in Jesner v. Arab Bank, PLC, the U.S. Supreme Court’s third major decision involving the Alien Tort Statute (ATS), continues a trend of reining in human rights activists’ efforts to police private businesses’ overseas conduct through ATS litigation.  The Court held that foreign corporations may not be sued under the ATS for their overseas conduct.  But as with past Supreme Court ATS decisions, the justices once again failed to shut the door entirely on human rights activists: the ruling said nothing about the many ATS claims pending against American corporations.  It thereby ensured that U.S. companies will continue to face such claims for the foreseeable future.

While Jesner suggests that five justices likely would rule that the federal courts should not recognize an ATS cause of action against American corporations for their overseas activities, several federal appeals courts have exhibited little willingness to limit the scope of ATS liability unless directly ordered to do so by the Supreme Court. Continue reading “Supreme Court Continues to Nibble Away at Alien Tort Statute’s Sweep”

Supreme Court Has Second Chance to Resolve Circuit Split on Two Criminal Securities Fraud Issues

SchaerrGuest Commentary

By Gene C. Schaerr, a Partner with Schaerr Duncan LLP in Washington, DC. Mr. Schaerr is Counsel of Record for the petitioners on the certiorari petition discussed here.

The U.S. Supreme Court may be about to resolve two issues of enormous importance to anyone involved, directly or indirectly, in the sale of securities.  The case that may provide the vehicle for such a ruling, Ellison v. United States, was recently the subject of an order directing the U.S. Solicitor General to file a response to the defendants’ petition for certiorari by May 21.  That petition challenges a U.S. Court of Appeals for the Ninth Circuit decision that, as the Cato Institute, Reason Foundation, and a group of law professors explained in a supporting amicus brief, exacerbates a “system” already “stacked in favor of the government.” Continue reading “Supreme Court Has Second Chance to Resolve Circuit Split on Two Criminal Securities Fraud Issues”

District Courts Divide over Application of “Bristol-Myers Squibb” Decision to Class Actions

troyer_brian_240x470Guest Commentary

By Brian A. Troyer, a Partner with Thompson Hine LLP in its Cleveland, OH office.

In a September 8, 2017 Washington Legal Foundation Legal Backgrounder on Bristol-Myers Squibb Co. v. Superior Court of California, 137 S. Ct. 1773 (2017), I noted that it would remain to be determined how courts would apply it to nationwide and multistate class actions. An Illinois federal court recently became the latest to confront this issue, holding that it lacked jurisdiction over the defendant with respect to claims of nonresident class members, disagreeing with courts in California and Louisiana. The result is a clear split among district courts on the question, and the issue is likely to be brought to the U.S. Supreme Court if courts of appeal also reach opposite conclusions on such a fundamental question. Continue reading “District Courts Divide over Application of “Bristol-Myers Squibb” Decision to Class Actions”

DOJ Memo and Court Opinion Show Trend in Damming Flood of False Claims Act Suits

11th CircuitBusinesses that routinely contract with the government know that while the relationship comes with high financial rewards, it also can expose those companies to massive civil liability.  Under the False Claims Act (FCA), government contractors can find themselves sued for hundreds of millions of dollars based on mere technical violations of complex regulatory schemes.

Luckily, as highlighted in several of our previous posts, the U.S. Supreme Court has recently reinforced the high evidentiary threshold FCA plaintiffs need to meet to bring a successful claim under the most common theory of FCA liability.  A recently disclosed U.S. Department of Justice (DOJ) memo and a recent opinion from the U.S. Court of Appeals for the Eleventh Circuit might similarly lead to fewer baseless claims against government contractors. Continue reading “DOJ Memo and Court Opinion Show Trend in Damming Flood of False Claims Act Suits”

U.S. Supreme Court Agrees to Review Endangered Species Act Case

st_tammany_navCan the U.S. government designate a private landowner’s property as “critical habitat” for a threatened or endangered species if the species does not currently inhabit the land and could not do so unless the property owner agrees to modifications of his land? The U.S. Supreme Court agreed this morning to address those questions by granting a petition for certiorari in Weyerhaeuser Co. v. U.S. Fish and Wildlife Services.

Washington Legal Foundation filed an amicus brief in support of the Petitioner, who was represented by past WLF publication author and program speaker Timothy Bishop of Mayer Brown LLP.

WLF has also published a number of commentaries on Weyerhaeuser on this blog, which are listed below.

Second Circuit Improperly Ducks Important First Amendment Issues

FirstAmendmentThe U.S. Supreme Court has repeatedly held that federal courts are under a “virtually unflagging” obligation to hear and decide federal claims over which they possess jurisdiction.  Yet, the U.S. Court of Appeals for the Second Circuit has repeatedly refused to decide a First Amendment challenge to a New York statute that restricts merchants’ ability to inform their customers of credit-card surcharges.

Just this past week, the appeals court yet again put off a decision by certifying to the New York Court of Appeals (the state’s highest court) a question on the meaning of the challenged statute.  The federal court’s rationale for its delay does not hold water and betrays a thinly disguised hostility to the First Amendment claims at issue. Continue reading “Second Circuit Improperly Ducks Important First Amendment Issues”

“Oil States” Oral Argument: Many Nuances Probed, Little Light Shed on Outcome

Kaminski_Jeffri_LRFeatured Expert Contributor, Intellectual Property—Patents

Jeffri A. Kaminski, Venable LLP

The November 27, 2017 oral arguments in Oil States Energy v. Greene’s Energy Group shed little light on the ultimate fate of inter partes review proceedings (“IPRs”), in which the Patent and Trademark Office (“PTO”) may invalidate an issued patent. As anticipated, much of the discussion focused on whether patents entail public or private rights, but more telling were the justices’ questions emphasizing due-process concerns. Continue reading ““Oil States” Oral Argument: Many Nuances Probed, Little Light Shed on Outcome”