The Rutgers Law Record

The contemporary era is frequently characterized as one in which the law’s legitimacy is under assault. In the popular imagination, this assault inexorably follows from the embrace of a Continental philosophical tradition that claims that “all truths are partial.” Yet a more careful examination of several seminal Continental thinkers suggests that the Continental tradition provides the theoretical foundation for the rule of law that our pluralistic age increasingly lacks. I argue that Continental thought both legitimates American legal traditions and institutions while providing the justification for their dynamism and growth in the face of evolving notions of justice.

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Today, the vast exchange of political ideas occurs on forums like Twitter and Facebook. When scrolling on social media, the public has become “entitled to believe [] that they are viewing something of a representative cross-section” between the public’s reactions and the government’s reaction to their pronouncements. A government official’s social media account is used as a means to communicate with the public, thereby creating an appearance of a public forum. Electronic communication of this nature is so popular because it is “inexpensive,” “fast,” and “reaches a wide audience.” However, this new way to communicate comes with increased constitutional responsibilities.

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Numerous companies have been hit with multi-million-dollar judgments or settled with consumers based on statutory damages from consumer protection statutes alone, which can easily derail a company’s financial stability. Given that some courts have allowed these “no-harm” injuries to meet standing requirements, companies will likely turn to legal and business strategies to help reduce their liability risk under these statutes. This Note is not premised on the fact that companies should not have any liability under these statutes, but rather that the pendulum has swung too far leaving companies in an unpredictable environment where one mistake can disrupt a company’s financial stability. Section I of this Note will analyze the most recent, relevant case law on standing when the alleged harm is based on a federal statute. Section II will focus on critical portions of the most frequently cited consumer protection statutes in “no-harm” cases. In Section III, this Note will discuss the business and legal solutions companies can use to help reduce liability in the scope of consumer protection statutes given the uncertainty in the courts following Spokeo. Finally, Section IV will address some of the initiatives introduced by the Federal Communications Commission (“FCC”) and FTC as well as those supported by pro-business groups which could help companies to more easily comply with the consumer protection statutes.

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The Supreme Court of the United States (“Supreme Court”) in Digital Realty Trust Inc. v. Somers and the Court of Appeals of New York in Sullivan v. Harnisch decided on a fundamental issue important to both chief compliance officers (“CCO”) and shareholders.
In Sullivan and Digital Realty Trust Inc. the courts held that the Dodd-Frank Act’s prohibition on employer retaliation against whistleblowers only extends to individuals who have reported the violations of securities laws directly to the Securities and Exchange Commission (“SEC”). The decision by both courts was troubling. These holdings would prove detrimental to CCO’s should they report any compliance concerns to management and to shareholders seeking company transparency.
This note will explore the critical question of whether public investment advisers and other entities should be given the unequivocal power to terminate the few employees who are charged with the statutorily mandated role of securing ethical and legal compliance. In Section II, I will explore the inception of the SEC and the relevant legislation and historical occurrences that gave rise to this issue. I will also discuss, in Section III, the imperative role CCO’s play in their respective industry as well as in the financial sector. In Sections IV, I will provide a summary of the importance of creating and maintaining a culture of compliance and briefly discuss the Dodd-Frank Act and the Sarbanes-Oxley Act’s whistleblower protection statutes. In Sections V, VI, and VII, I will examine the rulings in Sullivan v. Harnisch and Digital Realty Trust Inc. v. Somers and their impact on the compliance and financial industries. In Section VIII, I will argue that the rulings in Sullivan and Digital Realty Trust Inc. were in error. In addition to answering the question of whether entities should be given the unequivocal power to terminate CCO’s, in Section IX, I will propose a solution which would limit an entity’s incentive to terminate CCO’s for unjust reasons through the use of the 8-K disclosure form.

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Allergan plc (“Allergan”) holds several patents for its prescription dry-eye medication Restasis. In 2015, Allergan sued Mylan Pharmaceuticals Inc., Teva Pharmaceuticals USA Inc., and Akorn Inc., (the “Generic Manufacturers”), for patent infringement following their filings of abbreviated new drug applications (“ANDAs”) for generic versions of the branded drug. The Generic Manufacturers then petitioned for inter partes review (“IPR”) of those patents to the United States Patent and Trademark Office (“USPTO”). The Generic Manufacturers were seeking to invalidate the Restasis patents through the USPTO’s Patent Trial and Appeal Board (“PTAB”), which would open the door for generic versions of the drug. When a branded pharmaceutical drug is protected by a patent, the patent owner has exclusive rights to that drug, thereby preventing competitors from producing generics to compete with it. Therefore, the price of the branded drug remains high, and the pharmaceutical company effectively has a market monopoly on that drug. However, pharmaceutical companies are finding it difficult to maintain sales and profits amidst efforts to drive down drug prices through the fast-track, less expensive legal IPR process of attacks on drug patents.
This note will first discuss the old and new bail systems in New Jersey and explain why there was reform. The second section provides an overview of the deportation process for undocumented immigrants subjected to immigration detainers under both President Obama’s and President Trump’s enforcement policies. The last section is an analysis of how bail reform and President Trump’s immigration policies affects the criminal justice system within the context of undocumented immigrants.

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