On Appeal from the Food Court: Must Consumer Class Action Plaintiffs be “Ascertainable”?

food-courtOver the past several years, WLF has advocated that trial court judges should deny certification of consumer class actions if the lead plaintiffs cannot offer an administratively feasible method for the court to determine who is a “member” of the class. This “ascertainability” issue has arisen in many food-labeling class actions in the Food Court (a/k/a the U.S. District Court for the Northern District of California) and in other federal districts. With the December, 2014 appeal of Judge Charles Breyer’s denial of certification in Jones v. ConAgra, the battle over ascertainability has finally moved from the Food Court to the U.S. Court of Appeals for the Ninth Circuit.

This won’t be the first time that the ascertainability issue has been before the Ninth Circuit. The court has either ducked the issue in the past or issued unpublished rulings that barely reference it. And because Judge Breyer found numerous problems with Mr. Jones’s proposed class under Federal Rule of Civil Procedure 23, the appeals court could affirm the decision here without addressing ascertainability too. A marked split exists within the federal districts that make up the Ninth Circuit, with opinions ranging from Judge Breyer’s cautious acceptance of ascertainability to other trial judges’ melodramatic rejection of it as a class-action killer. An amicus brief in support of Jones’s Ninth Circuit appeal by Public Citizen and Center for Science in the Public Interest attempts to amplify this “sky is falling” rationale for ignoring ascertainability. Continue reading

Ohio Supreme Court Holds Municipal “Fracking” Regulations Cannot Conflict with State Rules

sboxermanFeatured Expert Column – Environmental Law and Policy

by Samuel B. Boxerman, Sidley Austin LLP, with Katharine Newman, Sidley Austin LLP

Last week, the Ohio Supreme Court weighed in on the battle being waged between state and local governments over oil and gas development, ruling that Ohio cities and municipalities may not use home rule to regulate oil and gas operations if local regulations directly conflict with Ohio state law. The decision represents a significant victory for the oil and gas industry and is likely to serve as important precedent in disputes raising similar issues in other states.

In State ex rel. Morrison v. Beck Energy Corp., the court ruled 4-3 that Munroe Falls’ ordinances, enacted between 1980 and 1995, were in direct conflict with Ohio’s 2004 law, R.C. 1509, which provides statewide, uniform regulation of oil and gas operations. R.C. 1509 preserves local regulation over public spaces and permit authority for heavy traffic, but expressly prohibits a local government from using its powers to impede or obstruct oil and gas activity. Continue reading

Advertisers Develop Voluntary Program to Deter Unwitting Online Ad Support of Copyright Pirates

copyrightwarningLast fall, WLF Legal Pulse highlighted some copyright and patent owners’ use of self-help initiatives to bolster their intellectual property rights. The copyright owners discussed in that post—chiefly movie and entertainment studios—face an especially daunting challenge due to the digital nature and distribution of the content they produce. In addition to individual acts of copyright infringement, entertainment providers must confront sophisticated and elusive websites devoted largely to facilitating content piracy. As we discussed in another fall 2014 blog commentary, these “cyberlockers” enjoy an average profit ratio of over 64% thanks in part to legitimate businesses’ advertisements and the payment processing of services like MasterCard and Visa.

For the past several years, advertisers have worked to address ad-support for online piracy. Those efforts have now crystallized into a formal voluntary program announced last week by the Trustworthy Accountability Group (TAG). TAG, which consists of major advertising-related trade associations, launched the Brand Integrity Program Against Piracy. Under the program, TAG will work with independent third parties, such as Ernst & Young, to certify companies that assist advertisers and ad agencies to avoid ad placement on cyberlockers and other undesirable websites. If these companies meet certain effectiveness criteria, TAG will validate them as “Digital Advertising Assurance Providers” (DAAPs). The Business Integrity Program also allows large ad networks and publishers that have already implemented internal controls to self-verify as DAAPs.

TAG developed the voluntary DAAPs certification program without the involvement or encouragement of government regulators. As market actors whose legitimacy and credibility are crucial to their continued success, advertisers and ad agencies understood that ads for multi-billion-dollar brands could not continue to support unlawful activity. Much of that brand value exists thanks in no small part to intellectual property protection. No doubt entertainment content owners underscored that reality when encouraging those trademark owners and their advertisers to take action against content piracy. All those involved in the Brand Integrity Program Against Piracy have a shared stake in its success, and the voluntary nature of the program allows them to quickly adapt their efforts. Such incentives and flexibility do not exist in a one-size-fits-all government regulatory program.

TAG and the other architects of this certification initiative are to be applauded for their announcement. We will monitor further developments with great interest. We also hope that the voluntary, concerted effort sends a strong message to the payment processors whose services continue to assist copyright infringement. The next important move is theirs.

Also published by Forbes.com at WLF’s contributor site

Five Lessons: Ninth Circuit Upholds Decision to Block Idaho Healthcare Merger

amurinoFeatured Expert Column – Antitrust/Federal Trade Commission

Andrea Agathoklis Murino, Wilson Sonsini Goodrich & Rosati*

On February 10, the United States Court of Appeals for the Ninth Circuit affirmed a lower court ruling blocking the merger of St. Luke’s Health Systems, Ltd. (St. Luke’s) and Saltzer Medical Group (Saltzer), and handed the Federal Trade Commission (FTC) yet another victory in its efforts to halt consolidation in the healthcare sector.  This opinion is instructive both because of what it reveals on the macro-level about merger review today, and for what it may portend in future healthcare consolidation cases. Continue reading

The “21st Century Cures Act” Draft Legislation Includes Welcome Support for First Amendment Rights

FDAThe House Energy and Commerce Committee released a 400-page “discussion draft” of its proposed “21st Century Cures Act” late last month. The bill includes a broad range of reforms governing the regulation of drugs and medical devices, most of which have been warmly received by broad segments of those industries. The bill is particularly welcome to supporters of commercial speech rights; it includes several provisions designed to ensure that government regulators do not prevent manufacturers from speaking truthfully about their medical products.

Social Media

One particular area of concern has been Food and Drug Administration (FDA) restrictions on manufacturer use of social media. Subtitle I of Title I of the bill would overturn those restrictions. One characteristic of social media is that it places a premium on brevity. For example, Twitter limits messages to 140 characters or less. In a Draft Guidance issued on June 18, 2014, FDA concluded that drug/device manufacturers should rarely, if ever, attempt to use social media platforms with character space limitations because those limitations deprives manufacturers of sufficient space to include all the risk and benefit information that the agency asserts is a necessary part of any such communications. It is not sufficient, FDA concluded, for a Twitter message to include the name of the drug and its intended uses, and then provide a hyperlink where detailed risk and benefit information is available. But as Washington Legal Foundation (WLF) pointed out in comments urging withdrawal of the Draft Guidance, a de facto prohibition on use of social media platforms raises serious First Amendment concerns. The First Amendment does not allow the government to prohibit an entire method of communication simply because other methods of communications are available to the speaker, at least not where the government’s goals can be achieved through more narrowly tailored means. Continue reading

Linda Greenhouse’s Blatant Effort to Invoke “Greenhouse Effect” in Affordable Care Act Case Fails

NYTMark S. Chenoweth, WLF’s General Counsel, contributed to this post

Linda Greenhouse is at it again. The New York Times Supreme Court reporter-turned-opinion writer is deeply troubled by the possibility that the Supreme Court may actually construe the Affordable Care Act precisely as Congress wrote it. And she is up to her old tricks of trying to influence the justices by suggesting that they “will have a great deal of explaining to do—not to me, but to history” if they strike down the proposed IRS rule at issue in the case.

Now that the Supreme Court has agreed to decide the proper scope of tax credits available under the law, Ms. Greenhouse laments, “[n]ot only the Affordable Care Act but the court itself is in peril as a result.” Chief Justice Roberts, by her lights, “saved the day” last time around. “The fate of the statute hung in the balance then and hangs in the balance today,” she continues, but “… [t]his time, so does the honor of the Supreme Court.”

And yet King v. Burwell is precisely the sort of case that the Supreme Court is supposed to decide. Not only does it raise an issue of exceptional importance—whether the IRS is permitted to appropriate billions of dollars in tax credits each year absent an express authorization from Congress to do so—but the Fourth and D.C. Circuits have issued conflicting decisions on that question, and only the Supreme Court can resolve such a conflict.

Although the text of the ACA couldn’t be any clearer that only those taxpayers who purchase health insurance on exchanges “established by a State” are entitled to subsidies in the form of a tax credit, Ms. Greenhouse argues that the law’s “context” points in the opposite direction. But even if the law is ambiguous, Ms. Greenhouse strenuously avoids addressing the overriding reason for any ambiguity—the ACA was the sloppiest piece of legislative draftsmanship in a generation or more. Continue reading

The D.C. Circuit’s “POM Wonderful” Decision: Not So Wonderful for FTC’s Randomized Clinical Trial Push

FTC_Man_Controlling_TradeThe U.S. Court of Appeals for the D.C. Circuit last Friday largely upheld the Federal Trade Commission’s (“FTC”) ruling that POM Wonderful, Inc. violated the Federal Trade Commission Act by making unwarranted disease-prevention claims for its pomegranate juice products. But the ruling is far from the sweeping endorsement of FTC advertising-control measures that the Commission might have been hoping for. In particular, the ruling provides little, if any, support for the FTC’s recent assertions that food and dietary supplement manufacturers are largely barred from including health-related claims on product labels unless their claims are supported by randomized and controlled human clinical trials (“RCTs”). To the contrary, the appeals court made clear medical studies that do not meet RCT standards may nonetheless have considerable value, and that the FTC’s regulation of advertising is subject to strict First Amendment limitations. The decision suggests that courts may be very reluctant to uphold the FTC’s application of RCT standards to claims that a product promotes general health and nutrition, as distinct from claims that a product is effective in preventing or curing specific diseases.

POM’s ads were an easy target for the FTC. The ads touted POM’s products as effective in preventing a variety of diseases/conditions, including cardiovascular disease, prostate cancer, and erectile dysfunction (“ED”). Yet they failed to mention numerous shortcomings in the medical studies on which the disease-prevention claims were based—including that the studies’ findings were directly contradicted by other, larger clinical studies. Indeed, the D.C. Circuit held that it would have concluded that the ads were deceptive even had it chosen to apply a de novo standard of review to the FTC’s findings. (Because the case was on appeal from an FTC administrative proceeding, the D.C. Circuit reviewed those findings under a far more deferential “substantial evidence” standard.) Continue reading