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Grable & Sons Reaffirms the Smith Approach to Federal Question Jurisdiction
The Supreme Court's recent unanimous decision in Grable & Sons Metal Products, Inc. v. Darue Engineering & Manufacturing, 125 S. Ct. 2363 (2005), put to rest almost 20 years of uncertainty regarding the scope of federal question jurisdiction. Responding to a split within the Courts of Appeals, the Supreme Court at long last addressed its holding in Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U.S. 804 (1986), that continued to baffle lower federal courts and legal scholars ' namely, whether Merrell Dow required a federal cause of action as a condition for exercising federal question jurisdiction. Grable & Sons not only responded with a resounding “no,” concluding that federal question jurisdiction does not require a federal private right of action, but it also reaffirmed the Court's longstanding commitment to the broader and more flexible Smith v. Kansas City Title & Trust Co., 255 U.S. 180 (1921), approach to federal question jurisdiction.
This article provides the background for the Grable & Sons decision and examines the Court's opinion. It then discusses the likely post-Grable & Sons battleground and assists defense counsel in positioning their cases to better ensure a federal forum for federal question cases.
The DOJ's Corporate Enforcement Policy: One Year Later
The DOJ's Criminal Division issued three declinations since the issuance of the revised CEP a year ago. Review of these cases gives insight into DOJ's implementation of the new policy in practice.
The DOJ's New Parameters for Evaluating Corporate Compliance Programs
The parameters set forth in the DOJ's memorandum have implications not only for the government's evaluation of compliance programs in the context of criminal charging decisions, but also for how defense counsel structure their conference-room advocacy seeking declinations or lesser sanctions in both criminal and civil investigations.
Use of Deferred Prosecution Agreements In White Collar Investigations
This article discusses the practical and policy reasons for the use of DPAs and NPAs in white-collar criminal investigations, and considers the NDAA's new reporting provision and its relationship with other efforts to enhance transparency in DOJ decision-making.
Bankruptcy Sales: Finding a Diamond In the Rough
There is no efficient market for the sale of bankruptcy assets. Inefficient markets yield a transactional drag, potentially dampening the ability of debtors and trustees to maximize value for creditors. This article identifies ways in which investors may more easily discover bankruptcy asset sales.
A Lawyer's System for Active Reading
Active reading comprises many daily tasks lawyers engage in, including highlighting, annotating, note taking, comparing and searching texts. It demands more than flipping or turning pages.