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Federal Officer Removal Jurisdiction Upheld in Agent Orange Cases
In late February, the U.S. Court of Appeals for the Second Circuit issued a trio of opinions in a series of cases arising out of the use of chemical herbicides during the Vietnam War. These decisions constitute the latest chapter in the Agent Orange litigations that have been part of the American legal landscape since the late 1970s and that are commonly considered to be among the seminal mass tort cases. These latest cases involve the claims of U.S. veterans who were not bound by the original class settlement because the settlement fund had been exhausted prior to the alleged manifestation of their injuries, and of an association of Vietnamese nationals, the Vietnam Association for Victims of Agent Orange ('VAVAO').
In the recent decisions, the Second Circuit, affirming the rulings of U.S. District Judge Jack Weinstein, held that: 1) the federal court had subject matter jurisdiction over the U.S. veterans' claims based on the federal officer removal statute, Isaacson v. Dow Chem. Co., 517 F.3d 129 (2d Cir. 2008); 2) the 'government contractor defense' precluded plaintiffs' claims, i.e., the manufacturers were not liable because the herbicide products were made in accordance with the government's specifications, In re Agent Orange Prod. Liab. Litig., 517 F.3d 76 (2d Cir. 2008); and 3) the chemical companies' manufacture and supply of the chemical herbicides did not violate customary international law norms proscribing the use of chemical weapons and, thus, did not form the basis of a claim under the Alien Tort Statute, Vietnam Association for Victims of Agent Orange v. Dow Chem Co., 517 F.3d 104 (2d Cir. 2008). (By orders dated May 7, 2008, the Second Circuit denied petitions for rehearing and rehearing en banc of these decisions.)
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.
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.
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.