Shumaker Manufacturing

A Legal & Industry Review


Resolving Disputes by Expert Determination: What Happens When Parties Select Appraisers, Accountants, or Other Technical Experts to Decide Disputes

Expert determination is a form of dispute resolution in which the parties use a subject-matter expert, rather than a judge, mediator, or arbitrator with legal training, to decide the dispute.1 It may be the least known form of alternative dispute resolution. In fact, it’s been called the “secret alternative to arbitration.”2 While the term “expert” may call to mind the concept of an expert witness, expert determination actually has its roots in the English common law of “valuation” or “appraisement.”3 Perhaps because we do not generally use the word “expert” to describe the decisionmaker, the concept of a person without legal training acting as the ultimate decider of law and fact may be most familiar in the form of an agreement to resolve a dispute over value through an appraiser or panel of appraisers.4

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Administrator Pruitt Issues a Directive to Eliminate “Sue and Settle” Agreements in Environmental Regulation

On October 16, 2017, Administrator Pruitt issued a directive and accompanied memorandum that would eliminate “Sue and Settle” agreements that have been used during the past administration to influence U.S. EPA’s regulations.  Sue and settle is a concept where a federal agency agrees to a settlement agreement with special interest groups to create rules outside the normal rulemaking process.  This directive would bar these agreements and eliminate plaintiffs’ attorney’s fees in instances where the agency enters into a consent decree or settlement agreement.

The agency’s directive puts forth a 10-point procedure for lawsuits against U.S. EPA.  Continue reading


Justice Department Issues Memo on Marijuana Enforcement

On January 4, 2018, the Department of Justice published a memorandum authored by Attorney General, Jeff Sessions, which rescinds previous guidance issued by the Department of Justice regarding marijuana prosecutions, and directs that “[i]n deciding which marijuana activities to prosecute under these laws with the Department’s finite resources, prosecutors should follow the well-established principles that govern all federal prosecutions.”  Notably, the memorandum expressly rescinds the August 29, 2013, Department of Justice Memorandum authored by former United States Attorney General, James M. Cole, commonly referred to as the “Cole Memorandum.”  The Cole Memorandum directed federal prosecutors to generally refrain from prosecuting those in the marijuana field who were complying with state law.  Continue reading


Shorter Deadline for Filing Bankruptcy Claims and Other Changes to Bankruptcy Rules Starting December 1st

Creditors need to know of significant changes about to occur to the Federal Rules of Bankruptcy Procedure (“Bankruptcy Rules”). On December 1, 2017, certain amendments to the Bankruptcy Rules will become effective. This article discusses two of the changes: 1) the period for filing proofs of claim is being shortened, and 2) secured creditors must timely file a claim to receive a distribution. Continue reading