- At urging of Pennsylvania Attorney General, Third Circuit seeks PA Supreme Court opinion on minority shareholders’ right to sue over merger (Legal Intelligencer)
- Policy ideas have consequences: Soda tax proposed in France, Coca-Cola puts $24 million expansion of French plant on hold (Vancouver Sun)
- Can a suit be certified as a class action solely for purpose of determining punitive damages after Wal-Mart v. Dukes? 9th Circuit asks a district court to consider (California Punitive Damages)
- Back to product liability basics at the Seventh Circuit in “consumer expectations” decision (Consumer Class Actions and Mass Torts)
- Liability without culpability: A deeply troubling trend (D&O Diary)
- When a single-used medical device is reprocessed and does harm, is the device’s manufacturer liable for injuries? Minnesota federal court issues ruling (Drug & Device Law)
- What we can learn about the state of federal regulation from government’s Unified Regulatory Agenda (RegBlog)
- Is a new ACLU suit forthcoming, now that a U.S. drone has reportedly eliminated radical al-Qaeda leader Al-Aulaqi? (Volokh Conspiracy)
- More false patent marking suits bite the dust under America Invents Act reform provision (WSJ Law Blog; for more see this Legal Pulse post)
Category Archives: Government Transparency
Finger on the Pulse: From Our Blogroll and Beyond
- Judge rules lawyers can have the privilege of practicing law in New York and an immunity from having to live there to do it (N.Y. Law Journal)
- Legal activists law professors parrot the federal family government viewpoint on constitutionality of proposed “voluntary” food ad limits (WSJ Law Blog)
- Class action suit against makers of Nutella (past Legal Pulse blog post on it here) is allowed to proceed (Consumer Class Actions and Mass Torts)
- A surfeit of analysis on “American Invents Act,” aka congressional patent reform, soon to be law (Patently-O)
- More strict liability use of its compensation “clawback” authority by SEC (SEC Actions)
- Newspaper chain comes to its senses and will end contract with copyright troll Righthaven (Threat Level)
- More on impact of Facebook’s requirement that pharma companies must allow comments on their Facebook pages (Eye on FDA)
- Politicians urge environmental activists to sue government over withdrawal of EPA ozone proposal (The Hill)
Can the Consumer Financial Protection Bureau Harm the Economy Yet?
Richard Cordray, the former Attorney General of Ohio and the nominee to be the new head of the Consumer Financial Protection Bureau (CFPB), had his confirmation hearing today before the Senate Banking Committee.
What can the CFPB do before he is confirmed? To some extent, there is a good deal of dispute. The American Bankers Association maintained that, because the bureau was meant to be mostly a one-man show, the CFPB can do little without an official Director. But the Treasury Department’s Inspector General says otherwise. In a January 2011 letter, Treasury asserted that Section 1066 of Dodd-Frank gives the Secretary of the Treasury the authority to do many of the things that the Director would otherwise be able to do until a Director is confirmed. Continue reading
ObamaCare “Public Health Fund”: Federal Financial Support for State, Local Obesity “Sin Tax” Policies”?
Guest Commentary
By Caleb Bulls, a 2011 Judge K.K. Legett Fellow at Washington Legal Foundation who is entering his third year at Texas Tech University Law School.
Through the passage of the Affordable Care Act of 2010 (colloquially known as “ObamaCare”), Congress established the Prevention and Public Health Fund “to provide for expanded and sustained national investment in prevention and public health programs to improve health and help restrain the rate of growth of . . . health care costs.” 42 U.S.C. § 300u-11 (2010). The fund was purportedly meant to be used to assist initiatives that promote “prevention, wellness, and public health activities.” Id. Legitimate questions have been raised, however, about whether the fund is being deployed to help advance ideological agendas that have more to do with dictating personal food and beverage choices than effectively combatting obesity.
Thus far, municipalities in six states which have pursued efforts to discourage consumption of “sugar-sweetened beverages” have been given grants. The six states are New York, Oregon, West Virginia, Massachusetts, Pennsylvania, and Nebraska. Id. Combined, these states have received nearly $40 million in grants. Philadelphia reportedly received $15 million to “make healthy foods more available and affordable.” This past June, coincidentally (or not?), the Philadelphia City Council considered (and ultimately rejected) a proposed tax on sugary drinks. Continue reading
FTC Injects Its Crusade Against “Reverse Payment” Drug Patent Suit Settlements into Merger Consent Order
Cross-posted by Forbes.com at On the Docket and WLF’s contributor page
We almost have to admire the Federal Trade Commission’s (FTC) persistence. For more than a decade, the Commission has been toiling unsuccessfully in federal court, and in Congress, to prohibit so-called pay-for-delay or reverse payment drug patent settlements. It’s even hinted at using its limited rulemaking authority to do what the courts and Congress won’t do. Last week, the Commission utilized another, very troubling route to pursue its crusade: it injected its views on these patent litigation arrangements into a proposed settlement of a complaint it had filed to block a merger between two drug companies, Perrigo Company and Paddock Laboratories.
We’ve provided ongoing commentary here at The Legal Pulse over the past year on the legal and policy developments related to FTC’s actions on reverse payment drug patent settlements (click on the “FTC” tag from our tag cloud to read them).
The Commission concluded that Perrigo’s purchase of Paddock’s assets would result in harmful market concentration in the markets for a number of generic drugs. Through the settlement, the companies agreed to a number of conditions which FTC believes will ensure future competition. The Decision and Order also contains, in part, the following provision: Continue reading
What is the Consumer Financial Protection Bureau?
CFPB: We are the Law
Cross-posted by Forbes.com at WLF’s commentary page
Answer: This government agency has undefined and vast powers placed in the hands of an unelected and unaccountable bureaucrat.
Question: What is the Consumer Financial Protection Bureau?
Good question. One can now ask Richard Cordray, who was a five-time champion of Jeopardy! and whom President Obama has nominated to serve as the director of the Consumer Financial Protection Bureau (CFPB), bypassing the architect of the new government agency, Harvard law professor Elizabeth Warren. The CFPB is a hallmark of the law which created it, Dodd-Frank. Cordray is expected to face a tough confirmation in the Senate, but Warren has been absolutely unacceptable to many. Continue reading
EPA to Activist Groups: Sue Us, Please
Most people don’t like to be sued. But if you’re an EPA regulator, being served a copy of a complaint might just make your day. Even better, you might be willing to help subsidize those organizations that make it a priority to sue your organization.
Plaintiffs attorneys and some states may have lost in AEP v. Connecticut (in which WLF filed an amicus brief), but that doesn’t mean they can’t sue the EPA in order to force it to expand environmental regulations even further. According to an Investor’s Business Daily article, environmental “green” groups have routinely sued the EPA, alleging it is not doing enough to combat such things like greenhouse emissions. The EPA settles with these groups, “tying its own hands” by agreeing to implement more strident rules. Rather than stand on its own in enacting politically controversial regulations, the EPA may prefer to point to the courts and absolve themselves of responsibility. Continue reading
Finger on the Pulse: From Our Blogroll and Beyond
- Bayer’s Supreme Court loss offers gain of clarity for targets of class actions (Class Action Countermeasures)
- Justice Kennedy offers a tutorial on federalism and freedom in Bond decision (Josh Blackman’s Blog)
- In the same week the Supreme Court disbarred Bill Lerach, another Litigation Industry leader is disbarred in Kentucky (Point of Law)
- Does it matter legally whether it’s CIA or DOD controlling al-Qaeda-targeting drones in Yemen? (Volokh Conspiracy)
- Judicially-set clock is ticking on Google, book publishers to reach deal on Google Book Search settlement (Reuters)
- Leaders in two branches of government push for greater transparency for government spending (Cato @ Liberty)
Mysterious Health Care Waiver Process Comes under More Scrutiny
Somewhere in the massive 2,800 page Patient Protection and Affordable Care Act, there must be a provision explicitly giving the Department of Health and Human Services the power to selectively waive portions of the law for favored businesses and labor unions, you might think.
Or maybe not. Section 1001(a)(2) of PPACA gives HHS the power to determine the minimum coverage limit that insuring employers can set until the year 2014, when Section 1001(a)(1) kicks in and prohibits any coverage limits. It also provides that the Secretary must “ensure that access to needed services is made available with a minimal impact on premiums.” Defining terms and phrases like “access,” “needed services,” “available,” and “minimal impact” and how they relate to a minimum coverage limit were left to the mysterious ways of an unelected bureaucratic agency. Continue reading
Follow-up: CDC Stakeholder Meeting Kicks Off Vaccine “Listening Tour”
In the recent Legal Pulse post “Will Little-known Federal Advisory Panel Deprive Infants of Meningitis Vaccine?, we noted the Centers for Disease Control’s (CDC) shrouded convening of a “public” meeting on May 25 where “stakeholders” would discuss among other things the “competing priorities and values” of sanctioning vaccination of infants against meningococcal disease. We know this was to be discussed not because we read an announcement of the meeting (there was none), but because we got a hold of the invitation letter, which we share here as a public service.
In classic bureaucratic fashion, the meeting seemed mostly to be about how best to conduct other meetings which will occur as part of a listening tour (Concord, New Hampshire, June 15; Seattle, early July; Chicago, July 21; Denver, July 25). Another stakeholder meeting will occur in DC in the fall to talk about the four meetings, prior to the Advisory Committee on Immunization Practice’s (ACIP) meeting in October where reportedly the group will determine a formal recommendation on infant meningitis vaccines. Continue reading
