Last month, the Court of Appeal of England and Wales granted permission for Eurasian Natural Resources Corp. Ltd. (“ENRC”) to appeal the May 2017 decision by the High Court[1] relating to a dispute over the legal professional privilege with the Serious Fraud Office (“SFO”).[2] The Court of Appeal will likely hear the case next year.
A District Court’s Discretion to Sanction Is Broad, “But For” a Causal Limitation
Recently, the U.S. Supreme Court clarified in Goodyear Tire & Rubber Co. v. Haeger that even a district court’s exercise of broad discretion to impose a civil sanction for a litigant’s bad faith conduct has to be limited by a causal link.
The parties in Goodyear had reached a settlement of the underlying product liability case after several years of contentious discovery. After the settlement, however, plaintiffs, the Haegers, learned (and Goodyear, the defendant, conceded) that Goodyear had withheld certain information that the Haegers had requested early and often during the discovery stage. Accordingly, the Haegers asked the District Court to impose sanctions on Goodyear for discovery fraud. Because the parties had already settled, the only sanction available was to award the Haegers attorney’s fees and costs expended in the litigation.
WARNING: Follow Rules Governing Objections to Discovery Requests or Waive Them
On February 28, 2017, Southern District of New York Magistrate Judge Andrew J. Peck issued a warning shot, stylized as a “wake-up call,” to the SDNY Bar: comply with the now 15-month-old amendments to the Federal Rules of Civil Procedure when objecting to requests for the production of documents and electronically stored information (ESI), or do not bother objecting at all.
Court Dismisses “Phantom Markdown” Suit against Saks
On March 22, the U.S. District Court for the Southern District of California dismissed a putative class action against Saks Inc. alleging that Saks advertised “phantom markdowns” of Saks-branded products. The Plaintiff alleged that he purchased a pair of men’s shoes “valued” by Saks at $145 but sold at a discounted price of $79.99. The plaintiff claimed that he only bought the shoes because he believed he was receiving a significant value and that Saks’s $145 market price was false and misleading.
Key Lessons From the Recent Precedential Order by Federal Circuit – Jurisdiction, Mandamus, and Privilege
On November 17, 2016, the United States Court of Appeals for the Federal Circuit published a precedential order denying a petition for a writ of mandamus to overturn a district court’s determination. In In re: Rearden LLC, Rearden MOVA LLC, MO2, LLC, MOVA, LLC, the defendants in the underlying case had petitioned for a writ of mandamus to challenge the district court’s order compelling them to produce allegedly privileged documents.
Think Your Arbitration Award Is Final? Maybe “Look Through” It Again
The question of federal court jurisdiction over arbitration proceedings has historically led to different conclusions. A few years ago, the United States Supreme Court clarified in Vaden v. Discover Bank that Section 4 of the Federal Arbitration Act (“FAA”) authorizes a federal court to “look through” to the underlying controversy to determine if there is federal court jurisdiction to adjudicate a motion compelling arbitration. Until recently, however, the “look through” approach had not been adopted by the Second Circuit for determining whether a federal court has jurisdiction to hear a motion to vacate an arbitration award.
Need to Decrypt an iPhone? There’s an “Act” for That
A pair of recent cases pitted the U.S. Department of Justice (DOJ) against Apple, Inc. (Apple) in a Herculean struggle between asserted interests in national security and privacy. In both cases, the DOJ relied on the same statute – the All Writs Act of 1789 – which operates to fill the gaps of “federal judicial power when these gaps threaten[] to thwart the otherwise proper exercise of federal courts’ jurisdiction.” Michael v. I.N.S..
One case involved a request by the DOJ to decrypt the iPhone of Syed Farook, the gunman in the San Bernardino terrorist attack. A few weeks ago, a federal magistrate judge in the Central District of California ordered Apple to assist the FBI in bypassing the phone’s security functions so that investigators could analyze the phone’s contents. Apple vigorously fought the ruling, both in federal court and in the court of public opinion, warning of the breach of privacy posed by the government’s demands and that, essentially, no iPhone would be safe. Although the DOJ later withdrew its request after the FBI was able to unlock the iPhone using undisclosed “alternative” methods, the battle sparked a robust national debate.