It’s getting more complicated to take and defend depositions because of the COVID-19 pandemic. And now there is a proposed new change to the Federal Rules of Civil Procedure that would require parties to confer before a plaintiff takes the deposition of a corporate representative. Specifically, the Judicial Conference Advisory Committee on Civil Rules has proposed an amendment to Federal Rule of Civil Procedure 30(b)(6) that requires parties to confer in good faith before the deposition takes place about both the topics and the identity of the witness or witnesses. Continue Reading What’s Ahead: An Amendment to Rule 30(b)(6) That Requires Parties to Confer
With the disruptions wrought by COVID-19, companies are working hard just to keep pace with daily activities. But, as we wrote previously, companies still must meet their regulatory obligations – including obligations to report potential product hazards to the U.S. Consumer Product Safety Commission (CPSC). That may require additional effort in the current environment.
Personal jurisdiction has always been a thorny and fact-specific topic in civil procedure. But the increasing complexity of transactions – development and manufacture of products across many borders, complicated chains of distribution, and the sale of products or services anywhere over the internet – has made it difficult for due process to keep up with technological and business advances. Courts can exercise jurisdiction over defendants only in locations where constitutional due process protections allow. In January, the Supreme Court granted certiorari in two consolidated cases to address the limits of specific personal jurisdiction. See Ford Motor Co. v. Montana Eighth Judicial Dist. Ct., Case No. 19-368; Ford Motor Co. v. Bandemer, Case No. 19-369. These cases likely will clarify the limits of specific personal jurisdiction and whether conduct within the forum state needs to be the conduct that caused a plaintiff’s injury. Oral argument originally was set for April 27, 2020, but has been postponed due to COVID-19.
With consumers attempting to navigate quarantine and “shelter-in-place” orders, businesses that sell basic necessities are facing overwhelming demand.
This new level of demand is placing stress on both businesses that sell basic necessities and their employees. Many businesses are experiencing increased overall customer service inquiries, call volume, and website orders. They are needing to meet increased consumer demand while making unprecedented provisions for their own employees’ health and well-being (which we have written about here and here).
Current thinking from public health experts is that COVID-19 will affect the American economy for several months. But during this period businesses still have responsibilities to their brands and obligations under law. And unlike during last year’s government shutdown, the pandemic has forced government agencies like the U.S. Consumer Product Safety Commission (CPSC) to operate differently, but it hasn’t closed its doors. For that reason, businesses will still have legal obligations and face the possibility of CPSC enforcement efforts.
Here are three steps companies can take to protect their brands and reduce the risk of CPSC enforcement. Continue Reading COVID-19: Three Steps Companies Can Take to Reduce Risk of Regulatory Side Effects
Civil litigation is a highly deadline-driven activity – statutes of limitation, discovery responses, notices of appeal. The “use it by a date certain or lose it” nature of all of these deadlines pushes the wheels of justice forward, steadily, if sometimes slowly. Over the past 48 hours, in response to the novel coronavirus, state and federal courts across the country have applied the brakes to the judicial system – canceling appellate arguments, postponing jury trials, and pushing out deadlines, sometimes potentially for months. In the short-term, the orders provide welcome relief for firms and clients coping with office closures and directives in many parts of the country to shelter in place. But the relief in many cases may be incomplete – in some instances, courts lack the power to relieve parties from jurisdictional deadlines. As illustrative examples, here we look at a series of orders, all effective March 17, 2020, from a federal court in Chicago, and from state courts in Illinois, California, and New York. Continue Reading Blanket Deadline Extension Orders: Short-Term Relief and Jurisdictional Risks
Cannabidiol (CBD) is a naturally occurring compound derived from the hemp plant, a member of the cannabis family. Because CBD is also found in the marijuana plant (a cousin of hemp), its use fell into a legal gray area until recently.
In December 2018, however, Congress passed the Farm Bill and legalized hemp and hemp-derived products. CBD products since have skyrocketed in popularity, with analysts projecting that CBD will grow to a $16 billion industry in five years. CBD product manufacturers and retailers across America are working to meet the high demand for their goods. Continue Reading CBD Manufacturers and Retailers Face Action from the FDA and Consumer Litigants
The U.S. Consumer Product Safety Commission (CPSC) will hold its annual public hearing on the agency’s agenda and priorities (Priorities Hearing) on April 15 in Bethesda, Md. At a minimum, CPSC-regulated companies – particularly those who make or sell products that have been politically sensitive recently – should watch the hearing to get a sense of both the public pressures the agency may be facing and how the CPSC (especially the four sitting commissioners) feel about the issues of the day. Companies may also want to consider participating, either in person or in writing. Continue Reading CPSC Hearing Offers Companies Valuable Insights into Agency’s Priorities
UPDATE: Dr. Nancy Beck, nominated in March to be both a commissioner at and chairman of the U.S. Consumer Product Safety Commission (CPSC), will go before the U.S. Senate Committee on Commerce, Science, and Transportation for a confirmation hearing on Tuesday, June 16. If confirmed by the full Senate, Dr. Beck’s term would run through October of 2025. Her confirmation would also shift the CPSC from a 2-2 partisan balance under Acting Chairman Bob Adler, a Democrat, to a 3-2 Republican majority.
As we speculated late last year, the White House has announced that President Trump intends to nominate Dr. Nancy Beck to both the open seat on the U.S. Consumer Product Safety Commission (CPSC) and the chairmanship of the agency. If Dr. Beck is confirmed, the CPSC would be back to its full five-commissioner strength. Dr. Beck’s confirmation would also shift both the day-to-day management of the agency and its partisan balance, ending both current Acting Chair Bob Adler’s (D) tenure and its 2-2 party split. Continue Reading A New Face at the CPSC? White House to Nominate Dr. Nancy Beck as Chair
Frequently the U.S. Consumer Product Safety Commission (CPSC) shares big news at the annual meeting of the International Consumer Product Health & Safety Organization (ICPHSO), the body that brings together all stakeholders in the product safety space, from consumer advocates to industry to regulators. A few years ago, then-Chairman Elliot Kaye shared his desire to see penalties in the “double-digit millions.” That statement preceded – by mere weeks – the announcement of a $15.45 million penalty against Gree Electric Appliances, Inc., the maximum penalty allowed by CPSC’s statutes. Continue Reading CPSC to Industry: Talk to Our Lawyers