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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.
Boyle v. United Technologies Corp.
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Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
The Article 8 Opt In
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
Strategy vs. Tactics: Two Sides of a Difficult Coin
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.
The Stranger to the Deed Rule
In 1987, a unanimous Court of Appeals reaffirmed the vitality of the "stranger to the deed" rule, which holds that if a grantor executes a deed to a grantee purporting to create an easement in a third party, the easement is invalid. Daniello v. Wagner, decided by the Second Department on November 29th, makes it clear that not all grantors (or their lawyers) have received the Court of Appeals' message, suggesting that the rule needs re-examination.
Legal Possession: What Does It Mean?
Possession of real property is a matter of physical fact. Having the right or legal entitlement to possession is not "possession," possession is "the fact of having or holding property in one's power." That power means having physical dominion and control over the property.