BLT: May 2014

Under 28 U.S.C. § 1782, litigants in proceedings overseas may seek discovery in the United States. Although it has long been clear that Section 1782 discovery is available for judicial and regulatory proceedings, it is much less certain whether Section 1782 discovery is available for arbitrations abroad. There are at least four different views on the matter. This article surveys and analyzes the different approaches, and offers some practical suggestions for whether and how to see such discovery.

On March 3, 2014, the United States Supreme Court granted certiorari in Omnicare, Inc. v. Laborers District Council Construction Industry Pension Fund to address the recent circuit split concerning the pleading standards applicable to claims under Section 11 of the Securities Act of 1933 for untrue or misleading statements of opinion. This article examines the appropriate pleading standards under Section 11 and argues that a plaintiff need not plead or prove “subjective falsity” to recover damages under Section 11 for untrue or misleading statements of opinion.

In Daimler AG v. Bauman, et al., the Supreme Court revisited general jurisdiction over foreign defendants. The Court held that a foreign defendant was not subject to general jurisdiction in California in a suit for injuries and acts occurring outside of the United States, as general jurisdiction is found only where the defendant is “at home.”

On January 22, 2014, the U.S. Supreme Court issued its decision in Medtronic, Inc. v. Mirowski Family Ventures, LLC, deciding unanimously that the patent holder bears the burden of proving infringement, even when a licensee seeks a declaratory judgment that it does not infringe the licensor’s patents.

Three recent decisions of the Delaware Court of Chancery, all written by Vice Chancellor Laster, demonstrate the importance and impact of the application of the standard of review to the success of post-transactional shareholder litigation.

When it comes to ethical guidance, in-house lawyers get the short end of the stick. The Model Rules of Professional Conduct, which most U.S. jurisdictions have adopted in some form, are more compatible with law firm practice than in-house work.

Judge Gail A. Andler has been a California state trial judge since 1994. She currently sits on the Complex Civil Litigation Panel of the Superior Court, Orange County, and is the immediate past President of the American College of Business Court Judges. She served two terms as the Presiding Judge of the Superior Court's Appellate Division.

Lord Harry Woolf, former Lord Chief Justice of England and Wales, discusses the "Woolf Reforms," and how they changed the way the courts in England handle civil disputes. His conclusion: The duty of a court is primarily to assist the parties to conclude their dispute without waste or delay. Please enjoy this April 30, 2014, conversation sponsored by the Dispute Resolution Committee.

69(3): 671-698 (May 2014)
In the Halliburton case, the United States Supreme Court reconsidered the ruling in the decision of Basic Inc. v. Levinson that, twenty-five years ago, adopted the fraud-on-the-market theory, which has since facilitated securities class action litigation. The authors sought to contribute to this reconsideration by providing a conceptual and economic framework for a reexamination of the Basic rule, taking into account and relating their analysis to the Justices' questions at the Halliburton oral argument.

Since February 2013, the In the Know Subcommittee has been organizing free CLE programs for Business Law Section members in the form of a series of In the Know webinars, presented by various committees within the Business Law Section. Each In the Know program is available, at your convenience, through the Business Law Section’s website. This month’s Inside Business Law highlights the In the Know programs.



Nominations Sought for Section Leadership Positions

Do you know anyone who has what it takes to be a good Section leader? The Nominating Committee of the Section needs your recommendations for leadership positions for the 2017-2018 association year. Nominees will be selected for: Chair-elect (who automatically assumes the position of chair the following year); Secretary (who automatically assumes the position of vice chair the following year); Content Officer; two Section Delegates to the ABA House of Delegates; and five additional Council members for a four-year term expiring in 2021. The Nominating Committee will take into account the following principles in making its selections. It will: select nominees who have been substantial and active contributors to the Section; seek geographic diversity in the leadership of the Section; strive for representation from a broad cross-section of the areas of law represented in the Section; and seek to draw leaders from a broad cross-section of the various sectors of practice, including corporate law departments, government, academia and private law firms; and actively recruit nominees that reflect the diversity of the Section. Please send your nominations by email to susan.tobias@americanbar.org no later than November 18.

Question: Between November 2, 2015 and November 4, 2015, Harris Poll conducted an online survey of 2,017 adults ages 18 and older on behalf of NerdWallet, Inc. to understand U.S. consumers’ credit card payment habits and feelings around different types of debt. The results of this study were published in the 2015 American Household Credit Card Debt Study. According to the 2015 American Household Credit Card Debt Study, what percentage of U.S. adults would be more embarrassed to tell others about credit card debt than any other type of debt?
A. 10%
B. 35%
C. 55%
D. 90%

Question: From the late 1600s to the early 1800s, “debtors’ prisons” were commonplace with many cities and states operating brick-and-mortar detention facilities that were designed for incarcerating individuals who were unable or unwilling to pay their debts. Imprisonment for indebtedness was so commonplace that two signatories of the Declaration of Independence were jailed for failure to pay their debts. Can you name those two signatories?

The November issue of Business Law Today will focus on Nonprofits. Articles will range from the “Delaware Advantage” to nonprofit organizations needing nonprofit lawyers. In addition, other features include keeping pace with disruptive technological change, insurance bad faith recoveries, and constitutional issues in granting Americans a “Right to Dispute.”

Do you have a great idea for a BLT article? Would you like to see more of a featured column? Let us know how we can make Business Law Today the best resource for you and your clients. We welcome any suggestions. Please send us your feedback here.

Business Law Section Fall Meeting
November 18-19, 2016
Washington, DC

Business Law Section Spring Meeting
April 6-8, 2017
New Orleans, LA

Miscellaneous IT Related Legal News (MIRLN) 25 September - 15 October 2016 (v19.14)

BLT is a web-based publication drawing upon the best of the Section's resources, including featured articles and other information from around the Section. Stay informed on the latest business law practice news and information that will benefit you and your clients.