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
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
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
In an interconnected world, an act of ecommerce could implicate laws beyond the sender’s immediate geographic borders. Many hope that compliance with the European Union’s new General Data Protection Regulation (“GDPR”) will serve as a gold standard for many countries. Continue reading
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
Businesses should be aware that Proposition 65 is a California consumer warning law that may affect you and your company if your products are ultimately sold in California. Continue reading