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Business Litigation

Firearms; mass shooting; negligent background check; Federal Tort Claims Act; discretionary function

by John W. Polk | September 9, 2019 | Business Litigation

SANDERS, et al., v. UNITED STATES OF AMERICA, ___ F.3d ___, U.S. Court of Appeals for the Fourth Circuit, No. 18-1931 (30 August 2019). Federal law prohibits several categories of persons from buying or possessing a firearm, including anyone who is an unlawful user…

Private Property and Takings Clause of the Fifth Amendment

by John W. Polk | August 5, 2019 | Business Litigation

KNICK v. TOWNSHIP OF SCOTT, PENNSYLVANIA, ___ U.S. ___, No. 17-647 (21 June 2019) The Takings Clause of the Fifth Amendment states that “private property [shall not] be taken for public use, without just compensation.”  The Supreme Court has long held that property owners may bring Fifth Amendment claims against…

FAR Submission Deadline for “Offers” Can Apply to “Quotes”

by Terrence O’Connor | July 17, 2019 | Business Litigation

We have previously blogged about some of the critical differences between an offer submitted in response to a Request for Proposal (RFP) and a quote submitted in response to a Request for Quotation (RFQ). A recent decision of the Government Accountability Office (GAO) highlighted another difference: language in an…

Does Apple Monopolize the Retail Market for Apps: APPLE v. PEPPER, ___ U.S. ___, No. 17-204 (13 May 2019)

by John W. Polk | July 9, 2019 | Business Litigation

Antitrust; direct purchaser rule Facts In 2007, Apple introduced the iPhone.  The next year, Apple created an electronic App Store where consumers could buy apps for their iPhones.  The apps sold to consumers are developed by third-party app developers, not by Apple.  Through contract and technical constraints, Apple prohibits the…

Fifth Amendment: Double Jeopardy Clause; Dual-Sovereignty Doctrine

by John W. Polk | July 3, 2019 | Business Litigation

GAMBLE v. UNITED STATES, ___ U.S. ___ No. 17-646 (2019) I. Facts and lower court rulings In 2008, Terance Gamble was convicted of a felony in Alabama.  Subsequently, in 2015, Gamble was stopped for a traffic violation.  The officer detected the odor of marijuana emanating from Gamble’s vehicle, and he…

First Amendment: free speech clause; retaliatory arrest; 42 U.S.C. §1983

by John W. Polk | June 26, 2019 | Business Litigation

NIEVES v. BARTLETT, ___ U.S. ___, No. 17-1174 (28 May 2019). Facts and lower court rulings Russell Bartlett was arrested during an event in Alaska called “Arctic Man,” a winter sports festival in the remote Hoodoo Mountains near Paxson, Alaska.  Paxson is a small community of a few dozen residents. …

State sovereign immunity; Full Faith and Credit; Eleventh Amendment; Stare Decisis

by John W. Polk | June 5, 2019 | Business Litigation

FRANCHISE TAX BOARD OF CALIFORNIA V. HYATT, ___ U.S. ___, No. 17-1299 (13 May 2019). Although this case does not concern a dispute over a will, this long and costly litigation resembles the fictional Court of Chancery case of Jarndyce and Jarndyce conjured by Charles Dickens in his novel Bleak…

International Organizations Immunities Act of 1945; immunity of international organizations; “reference” canon of statutory construction

by John W. Polk | May 9, 2019 | Business Litigation

JAM v. INTERNATIONAL FINANCE CORP., ___ U.S. ___, No. 17-1011 (27 February 2019) The International Finance Corporation (IFC) is an international organization headquartered in the United States.  The IFC finances private-sector development projects in poor and developing countries.  The IFC financed the construction of a power plant in India.  Local…

The FTC Will Clobber Facebook on Privacy

On Behalf of Berenzweig Leonard, LLP | April 26, 2019 | Business Litigation

The FTC is nearing completion of its 2018 investigation of Facebook resulting from the Cambridge Analytica debacle.  It is already clear that Facebook grossly violated its 2011 FTC Consent Decree. That Decree was based on broad violations of the government’s requirements for Facebook’s protection of user privacy.  It turned out…

Securities fraud; false statements; SEC Rule 10b-5

by John W. Polk | April 8, 2019 | Business Litigation

Lorenzo v. Securities and Exchange Commission, ___ U.S. ___, No. 17-1077 (27 March 2019) SEC Rule 10b-5(b) makes it unlawful to “make any untrue statement of a material fact . . . in connection with the purchase or sale of any security.”  In Janus Capital Group, Inc. v. First Derivative…