April 01, 2011

In this edition of The Spotlight, we discuss some continuing trends as well as a number of notable developments.  We continue our discussion of the legal challenges to the health care law, examining the recent rejection by the United States Supreme Court of Virginia’s request for expedited review by the Court (Health Care).

Continuing a trend noted in prior editions, several courts recently analyzed the relative powers of courts and arbitrators (Arbitration).  The Supreme Court held that the Federal Arbitration Act preempts a claim that an arbitration clause is unconscionable if it does not allow class arbitration (AT&T Mobility).  Prior to the recent Supreme Court decision, the Second Circuit had held on remand that a mandatory arbitration clause that waived class arbitration was unenforceable (In re Am. Express).  In addition, a district court held that the Dodd-Frank Act’s ban on arbitration agreements relating to Sarbanes-Oxley Act whistleblower protection applies retroactively to conduct that arose prior to the Act (Pezza).

We also discuss developments in trends we had noted previously.  The Tenth Circuit held that posting something on the Internet that then is viewed in a given jurisdiction does not necessarily confer specific personal jurisdiction over the poster absent an indication that the poster directed the statement at the jurisdiction (Shrader: Complex Commercial Litigation).  The Northern District of Illinois entered default judgment and $1 million in sanctions against a plaintiff whose consultant altered and deleted electronic evidence (Rosenthal Collins Group: Electronic Discovery).

Finally we note several important developments related to securities litigation.  Although he ultimately approved a proposed settlement with the SEC, Judge Jed Rakoff of the Southern District of New York recently questioned whether “neither admit nor deny” settlements serve the public interest (Vitesse).  The SEC also recently charged a hedge fund with orchestratinga scheme to defraud its clients (Juno Mother Earth),  a former bank director and her tippee with illegal insider trading (Deskovick), and an FDA chemist with insider trading based on access to confidential upcoming FDA announcements (Liang).


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

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