Emboldened by New Resources and Expanded Authority, Feds Continue 10-Year Look Back at Chinese Investment
At a conference earlier this year on the Committee on Foreign Investment in the United States, or CFIUS, Assistant Treasury Secretary Thomas P. Feddo spoke with pride of the Committee’s increased funding, jurisdiction, expenditures, and more aggressive review activities.
Feddo began the speech by detailing how CFIUS has implemented the 2018 Foreign Investment Risk Review Modernization Act, or FIRMMA, which expanded its jurisdiction and increased its funding. The Committee has invested in new IT infrastructure and personnel, and since May of this year, the Treasury Department has been collecting filing fees for voluntary filers, a new policy which creates a funding mechanism to supplement its budget.
Feddo went on to discuss new rulemaking around foreign investment, including a proposed rule that would force any transaction to be filed with the Committee “if the foreign acquirer would need export control authorization to transfer the U.S. business’s products or technology to its home country.”1
Another topic was the Committee’s increased vigilance when it comes to monitoring and enforcement, noting an “unprecedented civil monetary penalty of $1,000,000 for repeated breaches of a 2016 CFIUS mitigation agreement, including failure to establish requisite security policies and failure to provide adequate reports to CFIUS.”
This fits with a recent trend in screening older cases that has been noted by journalist Jeanne Whalen of The Washington Post. In her Sept. 29, 2020, article, Whalen quoted Stephen Heifetz, a lawyer at Wilson Sonsini, as saying: “We’ve heard about matters going back almost 10 years. Historically, it was unusual for [CFIUS] to reach back more than three years. But there is in theory no time limitation, and we are increasingly hearing about long reach-back periods.”
CFIUS and national security figured prominently in President Trump’s order demanding that China’s ByteDance unwind its acquisition of TikTok. “While this executive order is one of a few seen under CFIUS, and only the fourth to unwind a completed transaction, it may be a harbinger,” we wrote in our Aug. 18, 2020 post. “Parties and counsel working on international deals must be acutely aware: this committee considers personal data a serious national security issue. It can and will block or unwind tech deals that give foreign access to Americans’ personal information.” See POTUS Uses CFIUS to Unwind TikTok Deal, Fears Chinese Government Will Get Americans’ Private Data by Dan Mogin and Jennifer M. Oliver.
As the headline of The Washington Post article said, “TikTok was just the beginning …”
But this isn’t the only corner of the federal government expanding its merger review program. Read more on the MoginRubin Blog.
Beyond Predominance: Alternative Arguments Against Class Certification
Beyond Predominance: Alternative Arguments Against Class Certification Leverage the Latest Court Decisions to Challenge Class Membership and Defeat Certification. Class certification proceedings often focus on whether common issues predominate over individual issues. Recent decisions, however, highlight the importance of raising arguments beyond those afforded by Rule 23(b)(3)--including arguments arising from other subsections of Rule 23 and those originating in the case law. Join our panel as they discuss recent developments concerning several such avenues for defending against certification, including: Ascertainability. Ascertainability demands that class action plaintiffs present a mechanism for identifying prospective class members before the class is certified. Panelists will explain the federal circuit split on ascertainability issues, discuss recent decisions denying class certification on this ground, and provide insight regarding which arguments seem to be well received in different jurisdictions. Typicality and adequacy. Rule 23(a)'s typicality and adequacy requirements prevent certification if the claims of the named plaintiff(s) are subject to unique defenses not applicable to the class as a whole. Panelists will discuss recent case law in which class action defendants have used these requirements to their advantage and provide litigation strategies for setting up such arguments on class certification. Article III standing. Our panel will discuss the different approaches to applying Ramirez v. TransUnion L.L.C. and Spokeo v. Robins and consider the avenues available to challenge class certification on Article III grounds and to leverage standing issues in litigating the other requirements of Rule 23. Personal jurisdiction. The Supreme Court in Bristol-Myers Squibb Co. v. Superior Court (BMS) left open the question of whether absent class members must establish personal jurisdiction in class actions. The panel will discuss the different approaches being used to fill that gap, recent developments, and the potential effect of BMS on class litigation. Nina Rose Attorney Skadden Arps Slate Meagher & Flom Jordan Schwartz Counsel Skadden Arps Slate Meagher & Flom Geoffrey M. Wyatt Partner Skadden Arps Slate Meagher & Flom CLE On-Demand Recorded 5/18/2023 This Strafford production has been specially selected for HB audiences. The federal circuit split on the ascertainability requirement. Litigation strategies [...]
Rule 30(b)(6) Depositions in Class Action Litigation: Deposing or Defending Corporate Witnesses, Rule 30
Rule 30(b)(6) Depositions in Class Action Litigation: Deposing or Defending Corporate Witnesses, Rule 30 Class action plaintiffs rely on Rule 30(b)(6) depositions as a strategic tool to question corporate representatives about specific topics and bind the corporation to the testimony. There are frequent disputes over the Rule 30(b)(6) deposition notice's adequacy and now Rule 30 requires the parties to meet and confer about various aspects of the deposition. There are also frequent disputes over whether the corporation fulfilled its obligation to select an appropriate deponent and properly prepare the deponent for deposition. From the defendant's perspective, preparation for and defense of a corporate deposition directly impacts the case's success and potential future cases. Counsel must strategically determine who should represent the corporation at the deposition, how much preparation is adequate, and how to deal with privilege issues. Melanie Conroy Partner Pierce Atwood Michael McCarthy Shareholder Greenberg Taurig Robert Neary Of Counsel Kozyak Tropin & Throckmorton LIVE Webinar June 29th 2023| 1:00PM Eastern This Strafford production has been specially selected for HB audiences. What are some best practices for crafting a deposition notice that adequately identifies the scope of the 30(b)(6) deposition? What is the best way to employ the "meet and confer" requirement? What strategies are effective when questioning the corporate representative and handling objections during the deposition? How should defense counsel respond to a Rule 30(b)(6) deposition notice that appears to be vague, overbroad, or seeks privileged information? What are the particular dangers of designating a lawyer, or someone else with extensive privileged information, as a 30(b)(6) witness? Plaintiff perspectives When to take a Rule 30(b)(6) deposition Notice requirements under Rule 30(b)(6) Preparing for the deposition Questioning the corporate representative Responding to objections Dealing with evasive or difficult corporate representatives Understanding the party's obligations in designating witnesses Effects of amended Rule 30(b)(6) Defense perspectives Responding to the deposition notice Selecting the 30(b)(6) witness Preparing for the deposition Problem areas When to take a Rule 30(b)(6) deposition of the plaintiff Effects of amended Rule 30(b)(6) [...]
Excluding Epidemiological Evidence Under FRE 702 in Toxic Tort, Medical Device, and Pharmaceutical Cases
Excluding Epidemiological Evidence Under FRE 702 in Toxic Tort, Medical Device, and Pharmaceutical Cases Strategies for Exposing an Expert's Serious Methodological Deficiencies In every toxic tort, medical device, and pharmaceutical product liability case, a threshold issue is whether the product, device, or substance is even capable of causing the alleged harm in some part of the population. To establish this, lawyers rely first and foremost on epidemiological experts and research, the "gold standard" of general causation evidence. Causation, however, is a continuum, and no single study can prove causation. If the plaintiff's epidemiological testimony and related studies are excluded under Federal Rule of Evidence 702 and Daubert, the litigation will most likely end, or at least be significantly narrowed. Thus, admissibility under FRE 702 and Daubert is fiercely litigated in most cases. Courts are increasingly taking a "hard look" at experts' methodologies and assessing whether the expert's opinion reflects a reliable application of the principles and methods to the facts of the case. For example, courts are analyzing experts' logic, asking if their final opinions exceed the limits of applicable studies, and being sensitive to when experts are "cherry-picking" the evidence to fit the desired conclusions. Christopher Campbell Partner DLA Piper Stephen McConnell Partner Reed Smith Sarah Carrier Attorney DLA Piper Christian Castile Attorney Reed Smith CLE On-Demand Webinar This Strafford production has been specially selected for HB audiences. What is epidemiology? Can epidemiological studies support specific causation? When considering admissibility, does rebuttal expert evidence have to meet the same standards as the plaintiff's evidence? What factors show that an expert's opinion does not reflect a reliable application of the principles and methods to the facts of the case? General, specific, and legal causation Role of differential diagnosis Science of epidemiology and the hierarchy of evidence Association vs. causation Bradford Hill criteria International Agency for Research on Cancer (IARC) Assessing admissibility under FRE 702 Assist trier of fact Sufficient facts or data Product of reliable principles and methods Expert has reliably applied the principles and methods to the [...]
Defending Punitive Damages Cases and Preventing Runaway Awards: New Approaches
Defending Punitive Damages Cases and Preventing Runaway Awards: New Approaches Runaway punitive damages awards continue to demonstrate that traditional defense strategies can fail against increasingly sophisticated arguments from the plaintiffs' bar. Getting the claim dismissed on summary judgment or arguing that the plaintiff failed to prove the necessary level of culpability may be tools but often fail as stand-alone strategies. Radically different approaches are needed. Counsel must develop a comprehensive strategy, including affirmatively telling the defendant's story. Defendants are finding success in invoking FRE 407 and arguing that subsequent changes have made punitive damages unnecessary. This approach may be instrumental in a variety of tort cases, including trucking and motor carrier cases. Laurie Webb Daniel Partner Webb Daniel Friedlander Kathryn Lehman Partner King & Spalding CLE On-Demand Webinar July 18th, 2023| 1:00PM Eastern This Strafford production has been specially selected for HB audiences. Why do motions to dismiss or for summary judgment usually fail? How can defense counsel give the jury a reason not to award punitive damages? Why must defense counsel, when punitive damages are alleged, think like a plaintiff's lawyer? How can anchoring be used effectively? How can counsel use FRE 407 to show that punitive damages are unnecessary? Finding and telling the defendant's story Focusing on the "why" of the defendant's actions Countering plaintiff's likely strategies and themes Deciding whether to bifurcate Strategic use of pretrial motions and objections Building the defense with jury selection, jury instructions, and anchoring Using appellate and punitive damages experts Introducing subsequent remedial measures under FRE 407
Influencing the Jury Using and Objecting to Demonstrative Exhibits
Influencing the Jury Using and Objecting to Demonstrative Exhibits Developing a Visual Strategy for Trial, Recognizing Misleading or Inaccurate Exhibits, Proposed Amendments to FRE 611 Lawyers throw away an important opportunity to influence the jury if they do not offer their own demonstrative exhibits and object to misleading or inaccurate exhibits offered by their opponents. Jurors routinely create their own diagrams, charts, lists, etc. to visually organize and understand what they believe they heard and saw in the courtroom. Creating both an affirmative and defensive "visual strategy" for trial is as important as picking the theme for trial and requires planning and the proper foundation. Demonstrative exhibits are powerful tools that can be inaccurate or misleading--accidentally or intentionally. Too much, and the jury can be overwhelmed. The issue of misleading and inaccurate demonstrative exhibits and visual aids has fueled proposed amendments to Federal Rule of Evidence 6ll that could curtail their use or at least heighten the hurdles to using them. Professor Colin Miller Professor of Law University of South Carolina School of Law Justin Watkins Attorney Langdon & Emison Live CLE Webinar July 11th, 2023| 1:00PM Eastern This Strafford production has been specially selected for HB audiences. What is the difference between an exhibit and visual aid? Are demonstratives presumed acceptable unless objected to? In what ways can demonstrative exhibits be misleading and what are best strategies for objecting? What happens if an exhibit used in depositions becomes inaccurate by the time of trial? Purposes of demonstrative evidence/aids Using demonstratives in depositions Using demonstratives at trial Foundations for demonstrative evidence Document excerpts Computer Day-in-the-life video Video/animation Experiments/demonstrations Models Objections Objection strategies Adopting opponent's exhibits Relevance, probative value Changes circumstances/not substantially similar Federal Rule of Evidence 611 Current practice Proposed amendments
Price Premium Damages in Class Actions: Establishing Whether Losses Are Capable of Measurement on a Classwide Basis
Price Premium Damages in Class Actions: Establishing Whether Losses Are Capable of Measurement on a Classwide Basis Understanding the Measure of Loss and How Economic Experts Attempt to Model Them on a Classwide Basis Consumer fraud, false advertising, and latent-defect product class action cases often seek to recover the difference between the market price actually paid and the true market price that reflects the impact of the unlawful, unfair, or fraudulent business practice: the “price premium.” In evaluating price premium damages, plaintiff and defense experts often disagree about how and to what extent economic models are supposed to--and do--take into account both the demand and supply side of market. Separating the effect of the relevant claims from the effects of numerous other confounding factors must be done in accordance with rigorous scientific standards. In determining whether to certify proposed consumer classes, courts often evaluate price premium models proposed by plaintiff and defendant experts. This evaluation is often critical in the class certification decision as plaintiffs have the burden to demonstrate that the calculation of damages is possible on a class wide basis. Sascha Henry Partner Sheppard Mullin Hayley Reynolds Attorney Gutride Safier Jon Tomlin Senior Managing Director Ankura CLE On-Demand Webinar This Strafford production has been specially selected for HB audiences. What is conjoint analysis, generally, and what are the various types of conjoint analysis? What questions must be asked to determine if survey data was obtained in accordance with rigorous scientific standards? What does it mean to take into account both the supply and demand curves in price premium analysis? Challenges to calculating but-for prices with only demand-side information and how to account for supply side factors? Introduction to price premium damages Critical role of damages models at certification stage Market simulation models Strategies for plaintiffs Strategies for defense