August 01, 2011

In this issue of The Spotlight, we highlight several decisions in areas where there are emerging Circuit splits.  In Class Actions, we discuss an Eighth Circuit opinion affirming the use of a limited, “focused Daubert inquiry” to assess expert opinions at the class certification stage, declining to follow the Seventh Circuit’s approach of requiring a full Daubert analysis to determine whether expert evidence is sufficient to support class certification.  In Health Care Litigation, we address developments relating to the Patient Protection and Affordable Care Act, including the Eleventh Circuit’s recent holding that the individual insurance mandate of the Act is unconstitutional, and a recently-filed petition for certiorari asking the Supreme Court to review the Sixth Circuit’s decision upholding that mandate. 
We also highlight several recent sanctions rulings.  In Electronic Discovery, we report that one district court sanctioned a party for failing to preserve data, while another district court ordered that an adverse inference instruction be given because a party deleted certain electronic evidence.  In Complex Commercial Litigation, we address a Ninth Circuit decision affirming the trial court’s sua sponte striking of the defendants’ answers and entering of default judgments against them as a sanction for failing to produce certain discovery. 
We also address several notable state-court opinions, including the Delaware Supreme Court’s holding that a derivative plaintiff need not show that the corporation suffered actual harm in order to state a claim for breach of the duty of loyalty (see Complex Commercial Litigation). 

Finally, we report on the Department of Justice’s first opinion release of 2011, which addresses whether the payment of travel expenses of certain foreign government officials violates the Foreign Corrupt Practices Act (see White Collar Defense & Investigations).

David J. Bradford and Craig C. Martin
Co-Chairs Jenner & Block Litigation Department

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