Featured Expert Column – Environmental Law and Policy
By Samuel B. Boxerman, Sidley Austin LLP with Katharine Falahee Newman, Sidley Austin LLP
In a twist on the typical case addressing local oil and gas bans, the Western District of Pennsylvania struck down a Grant Township, PA ordinance finding the law impermissibly stripped Pennsylvania General Energy Co. (PGE) of its constitutional rights. The decision, Pennsylvania General Energy Co. v. Grant Township, is an important and unique precedent for the rights of a corporation to conduct a lawful business in the face of local opposition. Continue reading
In an April 28, 2015 post, Will the American Law Institute “Restate” or Try to Rewrite U.S. Copyright Law?, we questioned whether ALI had strayed from its mission of summarizing and clarifying specific areas of common law. Two years later, concerns over ALI’s drift toward lawmaking have grown. Not only has ALI continued to develop a wayward “Restatement of the Law, Copyright,” it is also taking an ambitious, aspirational approach in addressing other critical areas of common law. With its May 22 annual meeting rapidly approaching, now is the time for ALI’s members and the main consumers of its work—judges—to assess how the organization’s recent penchant for rewrites, rather than Restatements, is tainting its brand. Continue reading
Featured Expert Column—Civil Justice/Class Actions
Frank Cruz-Alvarez, a Partner in the Miami, FL office of Shook, Hardy & Bacon L.L.P., with Rachel A. Canfield, an Associate with the firm.
Most litigants are familiar with the federal sanction powers as promulgated under Federal Rules of Civil Procedure 11, 26, 30 and 37, as well as pursuant to 28 U.S.C. § 1927. Each sanction power is codified in the applicable Rule or statute and limited in scope to a particular type of misconduct.1 However, a court’s inherent power to levy sanctions is arguably broader and more amorphous in nature than any of the other sanction powers. As a result, many litigants are unclear about the full extent and application of a court’s inherent power to sanction.
On April 18 in Goodyear Tire & Rubber Co. v. Haeger, the United States Supreme Court provided more clarity on such limitations when it resolved a split of authority among federal appellate courts regarding the breadth of a federal court’s inherent authority to sanction a litigant for bad-faith misconduct. Continue reading
Featured Expert Contributor — Corporate Governance/Securities Law
Stephen M. Bainbridge, William D. Warren Distinguished Professor of Law, UCLA School of Law.
Disgorgement of ill-gotten gains long has been a basic tool in the Securities and Exchange Commission’s (SEC) penalty toolkit, despite a paucity of statutory authorization.1 The equitable nature of disgorgement has meant courts have had to resolve many questions without the benefit of statutory guidance. In Kokesh v. SEC,2 the US Supreme Court took up the seemingly technical—but surprisingly important—question of what statute of limitations applies to SEC disgorgement actions.
Appellant Charles Kokesh owned and controlled a pair of investment adviser firms that, in turn, managed four business development corporations (BDCs). Both the investment advisers and the BDCs were registered with SEC. SEC alleged that Kokesh misappropriated almost $35 million from the BDCs for the benefit of himself and the investment adviser firms. After a civil trial, a jury agreed that Kokesh had fraudulently misappropriated the funds. The trial judge ordered Kokesh to disgorge $34.9 million, which it found “reasonably approximates the ill-gotten gains causally connected to Defendant’s violations.” Continue reading
By Mark R. Robeck, Kelley Drye & Warren LLP. Mr. Robeck is a Partner in the firm’s Washington, DC office and a contributor to its Fracking Insider blog.
In 2016, the Sierra Club filed suit in Oklahoma alleging that use of state-permitted deep wastewater injection wells was causing increased seismic activity—both in frequency and severity. Sierra Club v. Chesapeake Operating, LLC, et al., Case No. CIV-16-134-F, United States District Court for the Western District of Oklahoma.
In an April 4, 2017 Order the court dismissed the case, declining to exercise jurisdiction because doing so would interfere with the state regulators’ efforts to address the alleged increased seismic activity from wastewater injection. Continue reading
Featured Expert Column—Judicial Gatekeeping of Expert Evidence
Evan M. Tager, a Partner in the Washington, DC office of Mayer Brown LLP, with Carl J. Summers, an Associate with Mayer Brown LLP.
In a victory for keeping junk science out of courtrooms, Missouri recently enacted H.B. 153, which adopts the Daubert standard.
H.B. 153 establishes four criteria for an expert witness’s testimony:
(1) The expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (2) The testimony is based on sufficient facts or data; (3) The testimony is the product of reliable principles and methods; and (4) The expert has reliably applied the principles and methods to the facts of the case.
These criteria mirror Federal Rule of Evidence 702 and the Daubert standard.
Although H.B. 153 applies broadly, it is not universally applicable. It does not apply in certain family and juvenile court proceedings. In addition, H.B. 153 does not permit an expert witness in a criminal case to testify “whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense.” Continue reading
By Lawrence A. Kogan*
For decades, federal agencies have incrementally extended their control over agricultural lands by expanding the definition of “waters of the US” (WOTUS) under the Clean Water Act (CWA) and asserting broad legal jurisdiction over WOTUS-adjacent “wetlands.” Those efforts triggered intense legal conflicts, facilitated the CWA’s growth into a “regulatory hydra,” and caused a “reversal of terms [in our unique relationship with government] that is worthy of Alice in Wonderland.”1
President Trump recently issued Executive Order 13778 as the first step aimed at curtailing this government juggernaut. The order directs the heads of the US Environmental Protection Agency (EPA) and the US Army Corps of Engineers (the Corps) to review for substantial revision or rescission their jointly issued 2015 CWA regulation that expanded the definition of “WOTUS.” Presumably, EPA’s review of this regulation will be undertaken while the October 9, 2015 federal court-issued stay of its implementation remains in place.2 Continue reading