Litigation Archives

Sep 26, 2024

Harsh Sanctions Against Class Action Plaintiff Serves as Reminder to Timely Produce and Supplement Expert Disclosures

A recent case out of the Eastern District of New York highlights the (1) criticality of exactness and timeliness of expert disclosure under the Federal Rules; and (2) that practitioners should not rely on the supplementation process available at Rule 26 to set forth opinions that “could have been asserted” at an earlier date. Mirkin v. XOOM Energy, LLC, 2024 WL 4143376 (EDNY Sept. 2024) involves two expert reports of a class action plaintiff Mirkin. Plaintiff’s first expert report was “adopted” by the District Court to support class certification, and to deny defendant’s motion for summary judgment. Thereafter, and at… Read more

Sep 7, 2023

Family Fiduciary Feud–How to Mitigate Conflicts and Manage Litigation in Family-Owned Businesses and Trusts

Families fight. That is inevitable. Naturally, when a family-owned business or a family trust is at issue, some level of conflict is to be expected. When these conflict-prone structures combine, the conflicts have the potential to be bigger, riskier, and costlier, and can have multi-generational effects. This article will touch on why the risk of conflict is so high in the family business and family trust context, provide planning tips to reduce the risk of conflict, and outline important considerations for families and their advisors to keep in mind when family friction boils over into conflict and litigation. The F-Word:… Read more

Jun 28, 2023

New Georgia Procedure for Appealing Decisions of Lower Judicatories to State or Superior Court Takes Effect July 1, 2023

Effective July 1, 2023, Georgia House Bill 916 (2022), the “Superior and State Court Appellate Practice Act,” will repeal and replace Georgia’s complex notice of appeal and certiorari review statutes (former O.C.G.A. §§ 5-3-1 et seq.; 5-4-1 et seq.) with a unified “Petition for Review” procedure for appealing cases from a lower judicatory to superior or state court. O.C.G.A. §§ 5-3-1 to 5-3-21. The new “Petition for Review” procedure is a single, modern, uniform, logical, and relatively simplified process for superior or state court review of lower judicial and quasi-judicial decisions. O.C.G.A. § 5-3-2(b)(1). Its purpose is to simplify the… Read more

Apr 27, 2023

How A Hospital Can Assure That It Will Be Required To Pay Punitive Damages

During the federal fiscal year ending in September, 2022, the Department of Justice collected more than $1.7 billion in False Claims Act (FCA) settlements and judgments involving fraud in Medicaid, Medicare Advantage (MA) overpayments, unlawful kickbacks and substandard care. In our experience working with hospitals, the significant financial penalties associated with FCA violations usually provide a powerful incentive for the hospitals to engage in careful diligence in structuring the terms of acquisitions of physician practices, the structure of physician relationships, and physician compensation formulas in compliance with healthcare regulatory requirements so as to avoid exposure to liability for violations of… Read more

Feb 6, 2023

Rapping Up a RICO: The Use of Rap Lyrics As Admissions In The Young Thug Trial

Remember when The Chicks (previously known as the Dixie Chicks) were indicted for killing ‘Earl’ after they admitted to poisoning him in their song “Goodbye Earl”? What about Johnny Cash being convicted for shooting a man in Reno, something he confessed to in “Folson Prison Blues”? If your memory is failing you, it’s because those violent lyrics weren’t used against those artists; instead, it was universally understood the lyrics were part of the art, persona, and hyperbolic creative expression of The Chicks and Cash. But in his criminal proceedings, prosecutors are using Grammy award-winning rapper Young Thug’s lyrics to support… Read more

Jan 19, 2023

Enforcement Policy at the U.S. Department of Justice Criminal Division Continues to Evolve

This week, on Tuesday, January 17, the Department of Justice’s (“DOJ”) Criminal Division’s Assistant Attorney General, Kenneth Polite, sent an “undeniable message” that companies should come forward and do the right thing by self-disclosing misconduct, fully cooperating, and timely remediating potential criminal violations.[1] If they do, they will be rewarded by revisions to the Criminal Division’s Corporate Enforcement Policy, under which the Criminal Division will now accord, or recommend to a sentencing court, at least 50%, and up to 75% off of the low end of the U.S. Sentencing Guidelines fine range, except in the case of a criminal recidivist…. Read more

Jul 27, 2022

What Is Monopolization Anyway? (And How To Know It When You See It)

“Monopoly” is an economic threat that anyone can understand. Back in 2009, the Federal Trade Commission published a cartoon short for children that illustrates what happens when businesses don’t have to compete for customers, workers, or suppliers. As that cartoon said of the 1890s, “prices were up, and, quality…well…it wasn’t a priority.” In other words, when competition is absent, the monopoly wins, and everyone else winds up paying more money for less product and worse service, and workers get a lower wage. In recent years, monopoly has re-entered the public’s attention as calls to “break up big tech” have escalated… Read more

Jul 5, 2022

SCOTUS: Prosecutors Must Prove “Subjective” Knowledge to Convict Doctors Under the Controlled Substances Act

On June 27, 2022, the United States Supreme Court clarified the “knowingly or intentionally” standard for criminal prosecutions against doctors accused of overprescribing addictive medications in violation of the Controlled Substances Act. In Ruan v. United States and Kahn v. United States, federal prosecutors accused two licensed doctors of illegally prescribing large volumes of opioid painkillers to patients. The cases arose under 21 U.S.C. § 841, which makes it a crime: (1) except as authorized; (2) knowingly or intentionally; (3) to manufacture, distribute, or dispense… a controlled substance. For background, the prosecution must prove that the defendant “knowingly” broke the… Read more

Jun 2, 2022

Unanimous U.S. Supreme Court Rejects Prejudice Requirement for Arbitration Waiver

On May 23, 2022, the U.S. Supreme Court considered the question of waiver in a case governed by the Federal Arbitration Act (“FAA”) and held that a party can waive its right to arbitration irrespective of whether the other party suffered prejudice. Morgan v. Sundance, Inc., No. 21-328 Robyn Morgan worked as an hourly employee for Sundance, Inc., a Taco Bell franchisee that operated more than 150 Taco Bell restaurants. Morgan worked for Sundance’s Taco Bell restaurant in Osceola, Iowa. When she applied for that job, she signed an arbitration agreement in which she agreed to “use confidential binding arbitration,… Read more

May 3, 2022

Blinded By The Light? Georgia Court of Appeals Says Commercial Greenhouse Light Not A Nuisance

In Kempton v. Southern Flavor Real Estate, L.P.[1], the Georgia Court of Appeals affirmed a summary judgment order in favor of a commercial greenhouse operator and against a residential neighbor’s claim of nuisance due to excess light emitted from the greenhouse. The greenhouse business was located on rural land zoned for agricultural use. The greenhouse used automated lights mounted near the glass roof and pointed down toward the floor. A significant amount of the light reflected upward and was emitted through the roof. The neighbor owned the adjoining land with a house located about 1,000 feet from the greenhouse. The… Read more