Litigation and Alternative Dispute Resolution

Federal Rule of Civil Procedure 41(d) authorizes a district court to award a defendant “costs” where a plaintiff who “previously dismissed an action in any court [subsequently] files an action based on or including the same claim against the same defendant.”

On February 2, 2018, the Third Circuit held as a matter of first impression that a district court may award attorneys’ fees as the “costs” provided for under Rule 41(d) when the substantive statute under which the lawsuit was filed defines costs to include attorneys’ fees.

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When a plaintiff in a securities fraud class action seeks to support a motion for class certification using a presumption of reliance where the stock trades in an efficient market, what burden does a defendant have to rebut the presumption to defeat class certification? That is, does the defendant bear the burden of persuasion on the issue, or is the defendant’s burden only to produce evidence going to the issue, with the burden of persuasion remaining on the plaintiff? The Second Circuit recently issued an opinion in Arkansas Teachers Retirement System. v. Goldman Sachs Group Inc. reinforcing that the defendant bears the burden of persuasion of showing that a market was not efficient so that a presumption of reliance does not apply. The Second Circuit explained that a defendant in a securities fraud action must rebut the application of a presumption of reliance in an efficient market by a preponderance of the evidence. The Second Circuit’s decision shows that a defendant can seek to satisfy its burden with evidence going to the market’s awareness of the alleged misrepresented information.

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Carl Schaerf and Lee Schmeer published an article, “Navigating Choppy Waters for the Government Contractor’s Defense in Trump Age,” in the Products Liability Supplement of The Legal Intelligencer. They write:

“Companies contracting with the federal government should be aware that significant changes are likely under the Trump administration in the manner in which the government solicits and funds contracts and the extent to which the government recognizes knowledge of risks related to the goods or services subject to such contracts. When faced with litigation involving government contracts, companies often employ the Government Contractor’s Defense, which shields a contractor that has complied with reasonably precise government specifications from liability provided the contractor has warned the government of risks not otherwise known to the government. Thus, determining what the government “knew” with respect to the subject of the contract is of utmost importance to litigants in a case involving the Government Contractor’s Defense.”

Download the full article in PDF format. Or read the article online here.


The obligations observance clauses, namely, umbrella clauses, are aimed to elevate contractual and other commitments of host states under an investment treaty's protective umbrella1. Neither the doctrine nor the case law has a common application of umbrella clauses that may be described as the provisions in international investment agreements that oblige host States to acknowledge their obligations rising from these clauses2. This Article covers the diverging jurisprudence related to umbrella clauses in investment arbitrations in order to solidify the controversial issues raised on this matter.

Read more: Umbrella Clauses in Investment Arbitration

Crociani v Crociani: A bitter family dispute was finally brought to an end after 5 years following the Royal Court of Jersey’s finding in favour of daughter Cristiana who alleged a series of breaches of trust by the former trustees of two related trusts: the Grand Trust and the Fortunate Trust.

Read more: Daughter wins USD 200m breach of trust claims against her own mother