Litigation

Crime Victims' Rights Act: New Tool To Recover Fraud Losses

Ross J. Ellick and Eric B. Fisher, shareholders at Butzel Long, review cases decided under the still-young Crime Victims' Rights Act, which gives fraud victims a right to be heard and, if used effectively, may be an important tool for helping to shape recoveries for those victims. As victims of financial fraud continue to press their rights under the statute, using the considerable leverage afforded by the expedited mandamus review procedure, courts can be expected to clarify and give real substance to the victims' right to restitution.

Balanced Approach for Parallel Proceedings Discovery

Steven M. Witzel and David B. Hennes, partners of Fried, Frank, Harris, Shriver & Jacobson, write that until recently, the long-standing practice was to stay all discovery in civil enforcement actions during the pendency of parallel criminal proceedings. In a new trend, courts in the Eastern and Southern Districts have rejected government requests for blanket stays and have sharply questioned the historic rationales on which they were granted. Now that the landscape has shifted, parallel proceedings present numerous issues for counsel representing individual and corporate defendants. The analyses and balancing of equities set forth in recent decisions provide defense counsel and government lawyers, in both regulatory and private civil litigation that often arises in connection with parallel criminal proceedings, with direction and opportunities to tailor their respective strategies.

Free With Registration: Allocating E-Discovery Costs in N.Y. State Courts

Christopher M. Caparelli, counsel at Torys, and Tracy Zanco, an associate of the firm, write: The explosion of electronically stored information and the issues it raises, including who is responsible for paying the soaring costs incurred in its production, has been well chronicled by federal judges and commentators of federal procedure. Much less has been written on who pays for e-discovery in New York state court litigation. Initially, one might conclude that is because the CPLR is clear on the subject: New York courts presume, on the basis of CPLR 3120, that the requesting party pays. The issue, however, does not end there.

Federal Program Participants: Beware the Amended False Claims Act

Joseph De Simone, Marcia G. Madsen and John J. Tharp, partners at Mayer Brown, write: At a time when the U.S. government is undertaking widespread bailouts of banks, insurers, automobile manufacturers and other traditionally private businesses, Congress has enacted legislation that threatens to turn many run-of-the-mill commercial disputes involving those businesses into federal lawsuits. Recent amendments to the False Claims Act that relax the required nexus between fraud and the payment of government funds could give the plaintiffs' bar a new tool with which to prop open federal courthouse doors to a raft of new cases.