- California legislator revives idea of state taxation of punitive damage awards (California Punitive Damages)
- The changing world of shareholder class action securities litigation (D&O Diary)
- Supreme Court’s Mensing generic drug preemption ruling might benefit non-drug defendants (Drug & Device Law)
- Not that it should or will matter to the Justices, but a majority of Americans want ObamaCare’s individual mandate found unconstitutional (Volokh Conspiracy)
- The broader implications of Supreme Court’s Golan v. Holder copyright decision (Patently-O)
- Are requirements for agencies to do notice-and-comment rulemaking biased towards established business interests? (RegBlog)
- State and local hydraulic fracturing bans threaten natural gas extraction (Fracking Insider)
- Is Europe’s “right to be forgotten” censorship masquerading as privacy protection? (Tech Liberation Front)
- Despite long-standing myth to the contrary, OSHA does have regulatory authority over businesses with 10 employees or less (OSHA Law Update)
Posted in Regulation of Free Enterprise | Leave a Comment »
Cross-posted by Forbes.com at WLF contributor site
Chevron Corp. suffered a setback yesterday in its efforts to prevent enforcement of a $17.2 billion judgment issued by an Ecuadorian court based on charges that Chevron is responsible for environmental damages in the Ecuadorian Amazon. The U.S. Court of Appeals for the Second Circuit in New York issued an opinion explaining its decision to overturn a district court injunction barring enforcement of the judgment outside of Ecuador. But while yesterday’s decision is a setback for Chevron, it still has numerous effective means of resisting enforcement efforts.
Chevron filed suit in federal district court in New York in February 2011, alleging that the Ecuador judgment was the product of a fraud perpetrated by the Ecuadorean plaintiffs and their lawyers and that the Ecuadorian courts are corrupt. Chevron seeks damages from the defendants – who include all of the Ecuadorian plaintiffs; many of their lawyers; and the Amazon Defense Front (ADF), the group slated to collect and administer any funds collected on the Amazon judgment. Chevron charged the defendants with, among other things, fraud and violation of the federal anti-racketeering law. Chevron also included a claim under New York’s Recognition Act. Pursuant to that claim, Chevron sought an injunction barring the defendants from attempting to collect their Ecuadorian judgment. Continue Reading »
Posted in Civil Justice & Litigation, Environmental Law & Regulation | Tagged environment, fraud, litigation, litigation industry | Leave a Comment »
- DSW in action
In a single response to a request from one company in 2009, and then subsequently in 2011 through a draft guidance document, the Food & Drug Administration (FDA) is sweeping aside decades of agency practice on how it determines what is a “medical device” and what is a “drug.” The distinction is a critical one for health product companies, as the drug approval process in generally far lengthier and more expensive than the device process. Equally or more important, however, is that FDA’s decision-making approach evaded public and legislative accountability.
The statutory definitions of ”drug” and “device” are very similar, with one provision in the law providing the key difference – it’s a device if the product “does not achieve its primary intended purposes through chemical action within or on the body of man or other animals and . . . is not dependent upon being metabolized for the achievement of its primary intended purposes.”
In 2009, Prevor, a company which produces products that address chemical risks and exposure, asked FDA to categorize its Diphoterine® Skin Wash (DSW) as a device. DSW’s “primary intended purpose” is to protect workers from toxic chemicals by displacing the chemicals from skin following an accidental spill. That is done through propelled liquid. The liquid contains 4% diphoterine, which can help neutralize some chemical agents on the skin. Prevor’s studies showed that this feature accounted for 10% of its therapeutic value. In its response in which it categorized DSW a “drug,” FDA wrote that this 10% was enough to indicate that DSW works, “at least in part” through chemical action. Continue Reading »
Posted in Government Transparency, Health Care | Tagged FDA, business civil liberties | Leave a Comment »
On January 20, Washington Legal Foundation released a new Working Paper which details a precedent-setting court decision on medical devices and product liability. Kapps v. Biosense Webster: Who Is Liable When A Reprocessed Medical Device Causes Injury? was authored pro bono by Hollingsworth LLP attorneys Stephen Klein and Andrew Reissaus. Mr. Klein also addressed the issues in the Kapps case and their broader significance in a new WLF LegallyBrief video that appears below.
Posted in Health Care | Tagged FDA | Leave a Comment »
At Washington Legal Foundation (WLF), we routinely make constitutional objections to government’s interference in the private market place. For example, in the coming weeks we’ll file an amicus brief in Florida v. HHS that will argue the Constitution prevents the government from forcing Americans to purchase a product they don’t want. Similarly, on January 13, we published a paper by Charles M. English that questions the constitutionality of government-mandated speech.
But we’re also bothered by government regulation and market interference simply because the government is too frequently incompetent. As we noted in an “In All Fairness” advertorial feature we published in the March 30, 2009 edition of The New York Times:
The same government which has given us abysmal veterans’ medical care, a disgraceful Hurricane Katrina response, an estimated 13 million illegal aliens, and the Postal Service now wants to fix our health care system. Can the American patient really trust government bureaucracy with such complex surgery?”
If your response is anything other than a definite “No,” then take a look at this recent EPA action:
As reported by the The New York Times on January 9, 2012, “When the companies that supply motor fuels close the books on 2011, they will pay about $6.8 million in penalties to the Treasury because they failed to mix a special type of biofuel into their gasoline and diesel as required by law.” The only problem, as the article notes in the next paragraph, is that the required biofuel doesn’t exist – it simply hasn’t been produced. (“A Fine for Not Using Biofuel That Doesn’t Exist”) Continue Reading »
Posted in Environmental Law & Regulation | Tagged environment | Leave a Comment »
Washington Legal Foundation congratulates Akin Gump Strauss Hauer & Feld LLP partner Patricia A. Millett who, upon arguing for the Petitioner yesterday in Filarsky v. Delia, became only the second woman in U.S. history to argue 30 cases before the U.S. Supreme Court.
WLF has been honored to have Pattie participate in several Media Nosh programs on the Supreme Court and author a 2011 Legal Backgrounder, Crumbling Cornerstones: The Evolution Of Preemption Law In The Supreme Court’s 2010 Term. She shares the distinction of 30 Court arguments with Arnold & Porter LLP’s Lisa S. Blatt, who has also spoken at WLF media programs on the Supreme Court and authored the “majority opinion” in a WLF On the Merits publication on Williamson v. Mazda Motor of America, Inc.
Posted in U.S. Supreme Court | Leave a Comment »
- EPA elbows its way into New York rule-writing for natural gas fracking (Washington Post)
- “Big, Bold & Bizarre”: New scholarship from the “FCPA Professor” on corruption law (White Collar Crime Professor)
- Convoluted, contradictory, and confusing Third Circuit class action ruling headed to Supreme Court? (Class Action Countermeasures)
- Post channels Carnack, predicts leading mass tort developments of 2012 (Consumer Class Actions and Mass Torts)
- Constitution’s protection of copyrights and free speech: contradictory? (Copyhype)
- Insurance company litigation chief counsel takes defense lawyers to task for failing to challenge constitutionality of class action device (Above the Law via Overlawyered)
- Some complain there are too many patents. One possible reason: 26,000 registered patent practitioners in U.S. (Patently-O)\
- Assessing calls for government action against new Google “Search + your world” (Truth on the Market)
Posted in Civil Justice & Litigation, Criminalization of Free Enterprise, Environmental Law & Regulation, Preserving Innovation/Intellectual Property | Leave a Comment »
Already ranked 47th among state economies in the nation, California apparently has decided to aim even lower. Following the California Assembly’s enactment of the California Global Warming Solutions Act, California’s Air Resources Board promulgated a new low-carbon fuel standard that would force out-of-state oil refiners and ethanol producers to purchase greenhouse credits from the state in order to legally import oil and ethanol into California. There’s just one problem—that violates the Commerce Clause of the U.S. Constitution, which gives Congress the exclusive authority to regulate interstate commerce.
We’ve previously discussed the dormant implications of the Commerce Clause here. The Supreme Court has repeatedly held that “a state statute that directly regulates or discriminates against interstate commerce” is “virtually per se invalid.”
In formulating California’s low-carbon rules, the state’s Air Resources Board calculated a “carbon intensity” score for different types of fuel. Among other things, the regulatory scheme assigned imported fuels a higher carbon intensity score than in-state fuels. California attempted to justify the disparity on the grounds that importers burn fuel and emit carbon when they transport fuels into the state.
A group of refiners and ethanol producers filed suit, arguing that the standards would not only hurt consumers, but would violate the Commerce Clause by discriminating against the use of renewable fuels from the Midwest and crude oil from Canada.
U.S. District Judge Lawrence O’Neill in Fresno, California agreed, and granted the plaintiffs’ request for a preliminary injunction against the regulation, which unquestionably discriminates against out-of-state producers and impermissibly attempts to regulate commercial activities outside California.
It’s bad enough that California has made a mess of its own economy, with Californians paying some of the highest fuel prices in the nation. But California should not be allowed to unilaterally raise the cost of manufacturing gasoline and diesel fuel across the entire United States.
Posted in Environmental Law & Regulation | 1 Comment »
Back on the First Monday in October 2011, we noted two First Amendment-related cert petitions that were pending with the Supreme Court. The Court denied review to the first, State Farm v. Bedell, in late November. It denied review in the second case, Natso v. 3 Girls Enterprises, today. The denial leaves untouched a troubling U.S. Court of Appeals for the Tenth Circuit ruling that is at odds with decisions on the identical issue from several other circuit courts.
The Natso appeal arose out of a class action suit arguing that auto fuel purchasers who live in warmer climates are being defrauded because the way retailers calculate the weight of the gas (which is the basis for the fuel price) means colder weather climate consumers pay less at the pump. The plaintiffs demanded 30+ years of documents from the defendants, including internal company and trade group documents which revealed political and legislative strategies on the issue of gas weight. The Tenth Circuit applied a review standard which was highly deferential to the trial court’s enforcement of the discovery request, an outcome which Natso argued intruded on its First Amendment associational and speech rights.
The cert petition had the support of an amicus brief signed by numerous trade groups including the National Association of Manufacturers and the American Chemistry Council. The brief aptly summarized the implications of the Tenth Circuit’s ruling:
Certainly, members want and expect that all communications between the members and their association will not be publicly disclosed simply because a plaintiff sues one of the members and then engages in a discovery fishing expedition seeking the association’s private, internal communications. Given that the memberships of amici range in size from 300 to more than 300,000, these are significant concerns for the amici and their members.
Posted in Civil Justice & Litigation, U.S. Supreme Court | Tagged litigation industry, speech, Supreme Court | Leave a Comment »
Honda Civic Hybrid owners everywhere feel they’ve been cheated. Or at least that’s what their class action lawyers have said. Numerous lawsuits have been filed in the past several years alleging that Honda misled consumers in advertisements on the amount of miles per gallon their Civic Hybrid would get. Honda denies these allegations, but has decided to settle a number of lawsuits filed against it by paying up to $200 to each purchaser of the Civic Hybrid between 2003 and 2009.
The seven plaintiffs’ lawyers for the settlement have requested $8.474 million for their services – as compared to $200 for each plaintiff.
This amount seems especially exorbitant when compared to what is likely to be paid out in the settlement. Approximately 120,000 people bought Civic Hybrids between 2003 and 2009. The compensation package for these owners will amount to $24 million (120,000 owners X $200 per owner). Accordingly, the plaintiffs’ lawyers’ fee ($8.474 million) is 35.3 percent of the amount being given to ALL owners – seven people are getting 35.3 percent of the compensation given to the group of 120,000 class members. Continue Reading »
Posted in Civil Justice & Litigation | Tagged CAFA, litigation, litigation industry | Leave a Comment »
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