Alternative Dispute Resolution

I. Alternative Dispute Resolution

This report addresses whether 28 U.S.C. § 1782(a)permits “any interested person” to apply to an appropriate United States district court to request discovery in a contemplated or pending private arbitration conducted by a “foreign or international tribunal.” This past year, a circuit split developed between the Second and Fifth Circuits, which have held since 1999 that such discovery was not available, and the Fourth and Sixth Circuits, which have recently held that § 1782(a) permits such discovery.

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II. Antitrust

Over the past year, the most significant antitrust developments were sparked by the new and expanding investigations into Big Technology as well as a continued focus on merger enforcement at the U.S. Department of Justice, Antitrust Division (DOJ), and Federal Trade Commission (FTC). In addition, the U.S. Supreme Court established a bright-line carve-out for indirect purchasers claims under the seminal Illinois Brick doctrine. We examine these current trends and developments, and other noteworthy decisions in the areas of telecommunications, cable and the Internet, transportation, and oil and gas.

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III. Communications

“May you live in interesting times” is an old saying that seems especially apt for the time period covered by this report—roughly May 1, 2019, through April 30, 2020. It will be remembered chiefly for what occurred at its tail end: the highly communicable COVID-19 disease. Throughout the world, people turned to their communications networks to engage in economic and social activities virtually, often through the use of Internet-streamed video services. Other major themes concern robocalls; “5G” wireless communications networks; and consumer privacy and national security implicated by our nation’s growing reliance on our communications networks and technologies.

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IV. Electricity

Recent developments confirm overarching trends toward expansive renewable resource deployment in all regions of the United States, and issues concerning the implementation and creation of standards for the deployment of renewables remain prominent throughout the regions.Notably, during the first half of 2019, renewable energy resources supplied approximately twenty percent of the new electricity generated in the United States.In April 2020, renewable resources accounted for twenty-three percent of the nation’s electricity supply, exceeding coal for the first time.


V. Environment

In the 2019 edition of Recent Developments, the Environmental Law Committee took a look back at the woeful warnings some newspapers had issued at the beginning of Donald Trump’s presidency related to the environment, although the columnists’ most dire prognoses have not panned out. But developments implicate recurrent political questions about EPA’s ability to safeguard human health and the environment, while providing clear guidance to, and minimizing burdens on, the regulated community.

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VI. Finance, Mergers, and Acquisitions

In the second half of 2019 and early 2020, the Securities and Exchange Commission continued to pursue disclosure reform and simplification initiatives under the Fixing America’s Surface Transportation Act (FAST Act). The financial community continued to adapt to the planned phasing out of the London Interbank Offered Rate (LIBOR). Pursuant to new standards of the Public Company Accounting Oversight Board (PCAOB), the auditors of certain companies began including “critical audit matters” in the audit report. Finally, the popularity of green bonds in the capital markets showed no signs of abating.

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VII. Gas

This report reviews the federal regulatory developments that occurred in the natural gas industry during the period of February 2019 through January 2020. The report focuses on key issues of interest and provides an overview of the major federal orders issued and initiatives commenced during that period, including rulemaking initiatives, by the Federal Energy Regulatory Commission. Pertinent appellate decisions are highlighted as well.

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VIII. Labor

The Labor Committee’s report reviews significant federal court decisions under the major federal employment statutes. Of particular note is a Supreme Court decision that concludes that a plaintiff’s failure to exhaust EEOC remedies prior to suit does not deprive a court of subject-matter jurisdiction. The report also addresses several important decisions of the National Labor Relations Board, the Supreme Court, and the Ninth Circuit.

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IX. Maritime

Over the past year, U.S. courts have addressed the scope and effect of “safe-berth” clauses in charter-party agreements; whether state laws governing employees’ wages and hours should be incorporated into and applied under the Outer Continental Shelf Lands Act; and whether a marine services company can be liable for failing to protect a vessel from damages caused by a hurricane. U.S. state legislatures have taken steps to limit or eliminate offshore drilling activities, while U.S. federal agencies have made important changes to the Jones Act that will likely affect a wide range of offshore industries. At the international level, unsurprisingly, the COVID-19 pandemic has had deleterious, and potentially long-lasting, effects on the global shipping industry.

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X. Nuclear Energy

On the administrative front, the makeup of the Nuclear Regulatory Commission changed slightly when Christopher T. Hanson was sworn in as Commissioner on June 8, 2020. The legislative front had continued focus on advanced nuclear technology and nuclear waste. The most noteworthy judicial case involved a challenge to NRC’s position on Agreement States and low-level waste disposal. Continued attention to new reactor licensing and issuance of the first subsequent license renewals marked the Commission’s regulatory and policy agenda. Finally, the Commission has had to address unique challenges presented by the coronavirus global pandemic.


XI. Tax

Following the enactment of the Tax Cuts and Jobs Act in December 2017, the Internal Revenue Service and the U.S. Department of the Treasury have issued a number of regulations, proposed regulations, and guidance to clarify and help taxpayers apply the new code provisions. This report reviews significant tax law developments (including those arising out of the Act); recent proposed and final regulations and other IRS guidance; IRS administrative responses to the coronavirus; recent updates on tax practitioner privilege; and recent state tax developments.

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XII. Water

The New York State Department of Public Health is considering a proposed revision to its soon-to-be-finalized Maximum Contaminant Levels (MCLs) for perfluorooctanoic acid (PFOA), perfluorooctanesulfonic acid (PFOS), and 1,4-dioxane in public drinking water, creating an MCL deferral system that shortens public notification requirements and provides water suppliers with additional time to reduce harmful chemical levels. State regulation under the Clean Water Act has presented a significant obstacle to the approval and construction of utility infrastructure projects, but the Environmental Protection Agency has recently adopted new rules limiting state certification authority under the Clean Water Act.