Recent Developments

Mark James Chaney Product Liability—Eighth Circuit Adopts Narrow View: Only APLA Failure-to-Warn/Mislabeling Claims Against Generic Manufacturers Are Preempted Under Mensing; Design-Defect and Implied-Warranty Claims Are Still Viable The Court of Appeals for the...

Third Time’s a Charm: Whether Hobbs v. Jones Inspired a Durable Change to Arkansas’s Method of Execution Act

The implementation of the death penalty in Arkansas has never been as much of a spectacle as it was in the late 1800s, during the reign of the “Hanging Judge.” Though capital punishment has changed significantly from those days, Arkansas has consistently upheld the death penalty—until now. On June 22, 2012, the Arkansas Supreme Court issued a decision that effectively put the State’s death penalty on hold. Will the third Method of Execution Act be a satisfactory solution, or will mounting obstacles—both inside and outside the State—threaten the entire practice of capital punishment?

"Pay to Sue" — Contingency-Fee Arrangements When Representing the State: A Review of Section 25-16-702 of the Arkansas Code

On April 12, 2012, a Pulaski County jury returned a verdict against Johnson & Johnson’s subsidiary company, Janssen Pharmaceuticals, for deceptive advertising practices relating to its marketing of an antipsychotic drug. The State of Arkansas, which was represented by outside counsel in the suit, stands to recover over $1.2 billion for its citizens harmed by these practices. The outside counsel, hired by the State on a contingency-fee basis, stands to collect over $180 million in legal fees. This verdict has thrust the practice of the State hiring outside counsel on a contingency-fee basis into the spotlight in Arkansas and has raised questions about how the State implements the practice, whether the Arkansas General Assembly should reform the practice, and whether Arkansas should prohibit this use of outside counsel entirely.

Without Bounds: Navigating Corporate Compliance Through Enforcement of the Foreign Corrupt Practices Act

Enforcement of the Foreign Corrupt Practices Act (FCPA) has accelerated over the past decade, and it has not spared Arkansas’s most notable businesses—Tyson Foods, Inc. and Wal-Mart Stores, Inc. The government often enforces the FCPA through Deferred Prosecution Agreements (DPAs) and Non-Prosecution Agreements (NPAs) by settling foreign-bribery disputes with corporations. Although DPAs and NPAs are valuable tools for the government, this enforcement structure has created a lose-lose situation for FCPA corporate-compliance programs.

DPAs and NPAs, coupled with respondeat superior, increase prosecutors’ leverage over corporations. And by incentivizing settlement, this enforcement environment detracts from judicial interpretation of the FCPA’s provisions, creating ambiguity and allowing prosecutors to interpret the FCPA to its broadest limits. The near strict liability for FCPA violations through respondeat superior—regardless of compliance efforts—and the inducement of settling do not adequately reward proactive compliance programs. Moreover, this enforcement structure creates dangerous discrepancies between government interpretations of the FCPA and corporations’ reasonable readings of the statute in formulating compliance programs.

As several FCPA scholars argue, this comment prescribes that the FCPA should implement a good-faith-compliance defense to compliment the government’s use of DPAs and NPAs. By allowing corporations an affirmative defense of good-faith compliance, the FCPA would better incentivize the proactive compliance programs that the DOJ and SEC desire. Such a defense would allow good-faith corporate actors either an alternative to DPAs and NPAs or provide them with a negotiating tool to counter respondeat superior. Such a defense would directly incentivize corporations to spend money on compliance efforts now instead of waiting until after a violation becomes known.

Paulino v. QHG of Springdale, Inc., and Negligent Credentialing: A Look into Peer Review-Statutes and the Health Care Quality Improvement Act

The Arkansas Supreme Court recently went against the majority of states when it declined to recognize negligent credentialing as a new cause of action. Negligent credentialing allows patients to sue a hospital for its credentialing decisions. In Paulino v. QHG of Springdale, Inc., the court missed an opportunity to provide a framework for ending credentialing actions in all states by using the state peer-review statute and the federal Health Care Quality Improvement Act. Both laws illustrate the importance of the peer-review process and provide language that could end negligent-credentialing actions nationwide.