Author Archives: Richard Samp

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Supreme Court Observations: Kiobel v. Royal Dutch Petroleum & the Future of Alien Tort Litigation

Barbary pirates

Barbary pirates

Cross-posted at WLF’s Forbes.com contributor site

The wave of tort suits under the Alien Tort Statute (ATS) may not be brought to an end as a result of a decision issued yesterday by the U.S. Supreme Court, Kiobel v. Royal Dutch Petroleum, but it is likely to subside considerably.  For the past several decades, the ATS has served as the favorite vehicle of human rights activists seeking to challenge the overseas business practices of U.S. corporations, but the Supreme Court has now ruled that the ATS applies only to conduct within the United States or on the high seas.

The ATS is a 1789 law that grants jurisdiction to federal courts to hear tort claims by aliens alleging violations of “the law of nations.”  The law lay dormant for two centuries, primarily because litigants assumed that the number of torts to which the law applied was extremely narrow – perhaps limited only to claims by foreign ambassadors that they had been assaulted in this country.  But in 1980, the U.S. Court of Appeals for the Second Circuit held in Filartiga v. Pena-Irala that the ATS applied to a wide array of alleged human rights violations.  In the decades that followed, activists sued U.S. corporations under the ATS for an increasing variety of overseas activities, from operating facilities that allegedly polluted the environment to administering medications without allegedly first providing informed consent to giving financial support to oppressive foreign governments.  WLF has been actively involved in many of those suits, opposing expansive interpretations of the ATS, including through an amicus brief in Kiobel. Continue reading →

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Supreme Court Observations: Clapper v. Amnesty International

supreme court

Cross-posted at Forbes.com’s WLF contributor page

The Supreme Court this week ruled that a group of American lawyers lack standing to challenge the 2008 law that expanded the U.S. government’s authority to engage in electronic surveillance of overseas aliens suspected of terrorism.  To hear the reaction of the ACLU and other civil liberties groups to the decision in Clapper v. Amesty International, one would think that the Supreme Court is abandoning the rule of law and abdicating its responsibility to oversee the activities of the Executive Branch.  Nonsense.  The Court simply denied a right to sue by individuals who concede that they have no evidence that they have been subjected to surveillance.  The decision is consistent with a long line of cases that have insisted on evidence of injury before a suit can go forward, particularly when the suit implicates national security concerns.

At issue are the 2008 amendments to the Foreign Sovereign Immunities Act (FISA).  The amendments permit the federal government to engage in overseas surveillance of suspected terrorists under limited circumstances.  But such surveillance is permitted under the FISA Amendments (FAA) only after the government has sought and obtained the consent of the FISA Court, a special court established to address national security issues.

On the day that the FAA was enacted, several lawyers and organizations (represented by the ACLU) filed a lawsuit seeking an injunction against surveillance conducted pursuant to the FAA.  They alleged that the FAA violated their First and Fourth Amendments rights as well as separation-of-powers principles.  Named as defendants were several senior Obama Administration officials, including Attorney General Eric Holder (whose authorization is required before any surveillance may be undertaken under the FAA).  Although the law does not permit American citizens to be targeted for surveillance, the plaintiffs expressed a fear that the government would end up overhearing some of their conversations with those foreigners who are being targeted. Continue reading →

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DOJ’s Advantage-Seeking Delay Maneuvers at Supreme Court: Time for Transparency

delay of game

Cross-posted at WLF’s Forbes.com contributor page

When a litigant files a certiorari petition in the U.S. Supreme Court, seeking review of a lower court decision, the opposing party has 30 days to file a response.  The Supreme Court Clerk’s office can and does grant extensions of time to file a response when counsel for the opposing party sets out “specific reasons why an extension of time is justified.”  But one should reasonably expect complete candor from attorneys, particularly federal government attorneys, when requesting such extensions.  Events this week call into question whether the United States is being completely candid in explaining its extension requests.

The U.S. Court of Appeals for the Sixth Circuit last May handed the federal government a major victory when it largely rejected First Amendment challenges to the new federal law that strictly regulates the labeling of tobacco products.  The tobacco industry filed a Supreme Court certiorari petition in October, and the federal government’s brief in response to the petition was initially due on November 26, 2012.  Since then, the Solicitor General’s Office has sought and received three successive extensions of time to respond, first to December 26, then to February 1, and then (in response to a request submitted just this week) to March 8.  On all three occasions, the “specific reason” proffered for seeking an extension was that the government attorney assigned to the case was busy attending to other legal matters.

I have no inside knowledge regarding the workloads of government attorneys, but the too-busy-on-other-matters explanation is highly suspect in this instance.  While the federal government routinely obtains one 30-day extension of filing deadlines in its Supreme Court cases and not infrequently obtains a second, the 98-day extension in this case is very unusual, even by federal government standards.  Given the importance of the issues raised by the Sixth Circuit petition, entitled American Snuff Co. v. United States, and the Solicitor General’s ability to handle briefing in other cases, it does not seem plausible that his office could not have met the February 1 filing deadline. Continue reading →

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DOJ/FDA Brief in SCOTUS Generic Drug Preemption Case Hands Plaintiffs New Liability Theories

DOJ

Cross-posted at WLF’s Forbes.com contributor page

During the last four years, the Food and Drug Administration has been a faithful ally of the plaintiffs’ bar, routinely opposing any suggestion that federal approval of a prescription drug preempts a state-law tort claim against the drug’s manufacturer.  That’s why it came as surprise to some when last week the United States filed an amicus curiae brief urging the Supreme Court to rule in Mutual Pharmaceutical Co. v. Bartlett that federal law preempts design-defect claims against the manufacturer of a generic drug.  The plaintiffs’ bar need not worry, however; the amicus brief set out a detailed roadmap that explained to plaintiffs how they can avoid preemption findings in all future cases.  The roadmap was wholly gratuitous; it raised issues not presented by Bartlett, and its only apparent purpose was to help lawyers filing tort suits to draft complaints that could withstand preemption claims.

Plaintiffs already have a clear path for suing brand-name drug companies; the Supreme Court held in 2009’s Wyeth v. Levine that failure-to-warn claims against brand-name companies were not preempted, even though the warning language on product labeling has in all cases been explicitly approved by FDA.  But tort suits against generic drug companies have been more difficult to maintain.  Over the objections of FDA and the Solicitor General, the Supreme Court held in 2011’s PLIVA, Inc. v. Mensing that failure-to-warn claims against generic drug companies are preempted by federal law, primarily because generic companies have no authority to make unilateral changes to their product labels even if they come to believe that stronger safety warnings are warranted. Continue reading →

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Further Down the Slippery Slope: The EU’s Tobacco Package Property Seizure

EUCross-posted at WLF’s contributor page on Forbes.com

On Wednesday, the European Union’s Health Commission announced revisions to its Tobacco Products Directive. If approved by EU member states and the European Parliament, the Directive would, among other things, seize 75% of the tobacco package for graphic warnings and permit states to seize the entire label through plain packaging.

The Health Commission and public health activists are no doubt busy congratulating themselves and each other. But such policies offer a hollow promise of tobacco use reduction, tread on international laws and treaties, and set the EU on a slippery slope towards further restrictions on consumer information.

Such massive graphic warnings and plain packaging are governments’ “ideas of the moment” for reducing tobacco consumption. A U.S. Food and Drug Administration proposal forces tobacco makers to communicate the government’s disdain for smoking with gory images on 50% of the package. As we’ve noted here previously, two federal circuit courts have issued differing opinions on the constitutionality of this proposal, and the issue is likely headed to the U.S. Supreme Court. Also, at the beginning of this month, Australia’s plain packaging requirement went into effect after the country’s highest court upheld its legality. A just-published WLF Legal Backgrounder details the ruling and views it as merely an opening salvo in a larger legal battle. Continue reading →

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Supreme Court Observations: Takings Ruling a Lump of Coal, Not a Gift, for Landowners

supreme court

Cross-posted by Forbes.com at WLF’s contributor page

Last week, the U.S. Supreme Court ruled unanimously in favor of the property owner in Arkansas Game and Fish Comm’n v. United States, a case that raised issues under the Fifth Amendment’s Takings Clause.  The Court reinstated the owner’s claims, which had been dismissed by the appeals court.  It is difficult to view the Court’s opinion as a victory for property rights, however; it contains disturbing language that does not bode well for future claimants.

The Takings Clause requires governments to provide “just compensation” whenever they “take” private property for a public purpose.  In determining whether government intrusion on property rights constitutes a “taking” of the property, courts generally employ a “balancing” test that considers a wide variety of factors—including the severity of the intrusion, whether the intrusion was intentional, and the owner’s “reasonable investment-backed expectations” regarding the land’s use.  The Supreme Court has also established several per se rules under which certain government actions will always be deemed to constitute compensable takings. Continue reading →

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Supreme Court Hears Challenge to Electronic Surveillance

The Supreme Court heard oral arguments today in Clapper v. Amnesty International, a case that will decide whether a group of American lawyers have standing to challenge the 2008 law that expanded the authority of the U.S. government to engage in electronic surveillance of overseas aliens suspected of terrorism.  Although the law does not permit American citizens to be targeted for surveillance, the plaintiffs fear that the government will end up overhearing some of their conversations with those foreigners who are being targeted.  The nine justices appeared to be closely divided on whether such fears are sufficient to support the plaintiffs’ standing claims.

In asking the Court to uphold their standing, the plaintiffs assert that if they are not permitted to challenge the surveillance law, then no one will be able to do so.  They may well be correct in that assertion, but that is immaterial. If no potential plaintiff can demonstrate that he has been injured by the law, the courts have no reason to examine claims that the law might infringe on someone else’s constitutional rights.  Of course, nothing prevents the plaintiffs from raising their concerns with appropriate officials in the Executive Branch and Congress, the branches of government with primary responsibility for national security matters.

The 2008 law is an outgrowth of the revelation by The New York Times in 2005 that the Bush Administration had adopted a Terrorist Surveillance Program (TSP), under which the overseas communications of suspected terrorists were being monitored.  Some critics charged that the TSP violated the requirements of the Foreign Intelligence Surveillance Act (FISA), a 1978 congressional statute that sought to regulate the use of electronic surveillance for national security purposes.  In response, Congress amended FISA in 2008 to establish a supplemental procedure whereby the Government could obtain judicial approval to engage in the sorts of overseas electronic surveillance undertaken pursuant to the TSP.

On the day that the amendments were enacted, several lawyers and several organizations (represented by the ACLU) filed a lawsuit seeking an injunction against the conduct of surveillance pursuant to the new law, the FISA Amendments Act (FAA).  They alleged that the FAA violated their First and Fourth Amendments rights as well as separation-of-powers principles.  Named as defendants are several senior Obama Administration officials, including Attorney General Eric Holder (whose authorization is required before any surveillance may be undertaken under the FAA).  The federal appeals court in New York held that the plaintiffs had standing to challenge the FAA; in June, the U.S. Supreme Court agreed to review that decision. Continue reading →

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SCOTUS Arkansas Game Oral Argument: A New High Water Mark for 5th Amendment Takings?

Black River – Wikipedia

The 1980s and early 1990s was a high-water mark for property owners asserting rights under the Fifth Amendment’s Takings Clause.  In a series of decisions during that period (including Loretto v. Teleprompter Manhattan and Lucas v. South Carolina Coastal Council), the U.S. Supreme Court expanded the rights of land owners to demand compensation from governments that interfere with their property rights and established certain categories of “takings” for which compensation is always required.  But more recent High Court decisions have been less favorable to land owners.  Indeed, some commentators have suggested that the Court’s 2002 Tahoe-Sierra decision makes it exceedingly difficult ever to obtain compensation when the government interference is temporary in nature.

Property rights appear poised to make a comeback, however, in connection with a case now before the Supreme Court.  Yesterday’s oral arguments in the case, Arkansas Game and Fish Comm’n v. United States (WLF’s amicus brief here) suggest that none of the Justices are buying the federal government’s contention that no compensation is due land owners whose property is damaged by government-induced floods so long as the flooding is only temporary in nature.

The case arises in connection with the federal government’s releases of water from a dam it operated on the Black River in Missouri.  Between 1993 and 2000, the government deviated from its normal release policy—a policy that had been in place since 1953.  According to findings by the U.S. Court of Federal Claims (following a lengthy trial), the actual and foreseeable result of this new policy was to cause unprecedented summer flooding of downstream wilderness property owned by Petitioner.  The government adhered to these “deviations” from its normal release policy despite the property owner’s repeated protests that the summer flooding was destroying valuable timber.  Only after the government recognized the full extent of the damage (losses of timber worth millions of dollars) did it cease its deviations.  The trial court awarded the Petitioner $5.8 million under the Takings Clause, which requires “just compensation” for property taken by the government.

On appeal, the U.S. Court of Appeals for the Federal Circuit did not question any of the trial court’s factual findings.  It nonetheless reversed, holding that a government-induced flood is never compensable under the Takings Clause when it is temporary in nature.  The Federal Circuit deemed the government-induced summertime flooding to be a mere “temporary” interference with property rights because, although it continued for seven years, the federal government never purported to adopt its new water-release policy on a permanent basis—it was always labeled a “deviation” from standard policy.

The Supreme Court last summer agreed to review the Federal Circuit’s decision.  Judging from yesterday’s oral arguments, it is highly likely to reverse, perhaps by a unanimous 8-0 vote (with Justice Elena Kagan recused).  The Justices simply were not buying the federal government’s contention that property owners downstream from a dam are never entitled to compensation for the damage that results when water released from the dam causes a temporary flooding of their property.  When the federal government’s attorney noted that Congress in 1928 passed a law exempting the U.S. from liability for flood damages caused by its operation of dams, Justice Scalia responded dismissively that the federal government is not entitled to exempt itself from the requirements of the U.S. Constitution.

The Court is highly likely to reinstate the case and then remand it to the Federal Circuit for reconsideration.  At that point, the federal government will be free to raise other defenses, including its assertion that other factors (including changing rainfall patterns) were the actual cause of the destruction of the property owner’s timber. Continue reading →

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If Oral Argument is Any Indication, Vote in SCOTUS Kiobel Case Will Be Close

Cross-posted at WLF’s Forbes.com contributor site

The U.S. Supreme Court heard oral arguments today in a case that may result in significant limits being imposed on the scope of lawsuits that can be brought under the Alien Tort Statute.  For the past several decades, the ATS has served as the favorite vehicle of human rights activists and plaintiffs’ lawyers seeking to challenge the overseas business practices of U.S. corporations.  The Court’s decision in Kiobel v. Royal Dutch Petroleum will determine whether the ATS applies at all to overseas activities, or whether it is limited to allegations of human rights abuses within the United States.  Based on today’s arguments, the vote is going to be close.

The ATS is a 1789 law that grants jurisdiction to federal courts over tort claims by aliens alleging violations of “the law of nations.”  The law lay dormant for two centuries, primarily because litigants assumed that the number of torts to which the law applied was extremely narrow—perhaps limited only to claims by foreign ambassadors that they had been assaulted in this country.  But in 1980, the U.S. Court of Appeals for the Second Circuit held in Filartiga v. Pena-Irala that the ATS applied to a wide array of alleged human rights violations.  In the decades that followed, activists sued U.S. corporations under the ATS for an increasing variety of overseas activities, from operating facilities that allegedly polluted the environment to administering medications without first providing informed consent to giving financial support to oppressive foreign governments.  WLF has been actively involved in many of those suits, opposing expansive interpretations of the ATS. Continue reading →

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Time for Supreme Court Review of Corporate “Status Crime” Legal Doctrine

Cross-posted by Forbes.com at WLF contributor site

Two weeks ago in Friedman v. Sebelius, a divided U.S. Court of Appeals for the District of Columbia Circuit largely upheld what amounts to the lifetime exclusion of three senior pharmaceutical executives from any further involvement in the industry.  Their offense:  pleding guilty to misdemeanor charges that they were executives of Purdue Frederick Co., at a time when (unbeknownst to them) some company employees engaged in the improper promotion of Purdue Frederick drugs.

Criminal prosecution of corporate executives not shown to have a guilty state of mind (or even to have acted negligently) has long been controversial.  Such prosecutions—under what is known as the “Responsible Corporate Officer” (RCO) doctrine—have twice survived constitutional challenges in the Supreme Court by razor-thin 5-4 margins in 1943 and 1975.  The Supreme Court reasoned that the RCO doctrine allows society to make a strong statement regarding its disapproval of corporate misbehavior without unduly punishing largely blameless senior executives, because penalties in RCO cases “commonly are relatively small, and conviction does no grave danger to the person’s reputation.”  Morisette v. United States.  There is serious reason to question whether the lifetime exclusion largely upheld by the D.C. Circuit fits the Supreme Court’s definition of a “relatively small” penalty.  In light of federal officials’ determination to bring more such prosecutions, the Supreme Court ought to revisit the RCO doctrine and decide whether it is being applied in a manner that comports with due process of law. Continue reading →