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Application of the Government Contractor Defense Affirmed in Agent Orange Cases
As reported in the June 2008 issue of this newsletter, the Second U.S. Circuit Court of Appeals recently issued a trio of opinions that dismissed the latest series of claims based on the alleged injurious exposure to chemical herbicides, including 'Agent Orange,' during the Vietnam War. This article addresses the Second Circuit's decision affirming the application of the 'government contractor defense' to preclude the plaintiffs' claims asserted against the companies that had manufactured the herbicides. In re Agent Orange Prod. Liab. Litig., 517 F.3d 76 (2d Cir. 2008), reh'g en banc denied (2d Cir. May 7, 2008). Under the government contractor defense, a private manufacturer is immunized from liability where it has made a product in accordance with specifications formulated by the government.
At the outset, it should be recognized that, with respect to the alleged Agent-Orange-related injuries, the government itself could not be held liable because, among other grounds, claims arising out of 'combatant activities' are specifically exempted under the Federal Tort Claims Act, and the government's 'discretionary function' immunity bars such claims. See 28 U.S.C. '2680(j) (FTCA does not provide for claims 'arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war'); In re Agent Orange Litig., 818 F.2d 204 (2d Cir. 1987) (affirming dismissal of manufacturers' third-party claims against the government in original Agent Orange litigation on Feres doctrine/discretionary function grounds). With the government so potentially immunized in an instance where a plaintiff is injured by a product ordered and utilized by the government, the plaintiff might be able to proceed solely against the manufacturer.
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.