The current issue of Washingtonian magazine features its annual recognition of “Washington’s Best Lawyers.” The list is categorized by practice area, from antitrust to whistleblowers. Washington Legal Foundation is pleased to note that seven attorneys who serve on our Legal Policy Advisory Board have been recognized as Best Lawyers this year. They are:
- Rick Rule, Cadwalader Wickersham & Taft (Antitrust)
- George Terwilliger III, Morgan Lewis & Bockius (White Collar)
- Glen Nager, Jones Day (Employment Defense)
- Richard Frank, Olson Frank Weeda Terman Matz (Food and Drug)
- Coleen Klasmeier, Sidley Austin (Food and Drug)
- Ted Olson, Gibson, Dunn & Crutcher (Supreme Court)
- Thomas Goldstein, Goldstein & Russell (Supreme Court)
Chaired by The Honorable Dick Thornburgh, WLF’s Legal Policy Advisory Board includes private practitioners, corporate counsels, academics, and elected officials from around the country, all of whom serve in this advisory role on a voluntary basis.
We are also honored that Washingtonian chose 80 attorneys who have donated their pro bono services to WLF as Best Lawyers, including each attorney selected in the “Supreme Court” category. Those attorneys have acted as authors of our publications, speakers at our educational programs, or counsels for our amicus briefs.
Cross-posted at WLF’s Forbes.com contributor page
Instead of “The Golden State,” perhaps California should be known as “The Precautionary State.” California state, city, and county governments routinely take the maxim “better safe than sorry” to an extreme. Proposition 65 and San Francisco’s “cell phones cause cancer” warnings are two that we’ve addressed before here at The Legal Pulse. To that list one can now add Alameda County’s “Product Stewardship Program,” which aims to prevent pharmaceutical products from entering the water supply, something even the hyper-cautious World Health Organization believes isn’t a significant or current problem. Worse yet, because the program imposes the burden of running and paying for disposal entirely on out-of-state drug manufacturers, the county ordinance in question is also unconstitutional.
Cost and Burden Shifting. Alameda County had operated a pharmaceutical product disposal program itself for several years. But in 2011, light bulbs went on in county supervisors’ minds: instead of making taxpayers pay for this program (despite the fact that they benefit from medicines and their “proper” disposal), let’s make those who sell the products pay. The original plan called for both local pharmacies and pharmaceutical manufacturers to pay, but the pharmacies flexed their political muscles and in the end the ordinance exempted them from the program. So the program now benefits local interests at the expense of drug makers who do not manufacture in Alameda County.
Commerce Clause Challenge. Trade associations representing branded and generic drug makers sued Alameda County in federal court, arguing that the ordinance unconstitutionally regulated and burdened interstate commerce. On August 28, Judge Richard Seeborg of the Northern District of California denied the associations’ summary judgment motion, ruling that the ordinance neither discriminated against interstate commerce nor favored local interests over out-of-state ones. The associations have appealed to the Ninth Circuit. Last week, Washington Legal Foundation, on behalf of itself and the California Healthcare Institute, filed an amicus brief supporting the appeal. Continue reading
Buckyballs creations; photo: flickr.com
In two past Legal Pulse posts (here and here), WLF’s Mark Chenoweth has criticized the Consumer Product Safety Commission (CPSC) for its pursuit of a small business that produced the adult desktop magnet item Buckyballs. By demanding (but not requiring) a recall of the magnet toy, alleging that the toy was defective in a lawsuit, and leaning on Buckyballs retailers, CPSC drove the business into bankruptcy. Adding unprecedented insult to injury, the Commission named the company’s founder and CEO personally in a lawsuit. A WLF Legal Backgrounder explains that aspect of the case and its troubling ramifications. Others have weighed in similarly on this questionable tactic.
On November 12 in a Wall Street Journal op-ed ($), Nancy Nord, a recently departed CPSC Commissioner, wrote that with the Buckyballs action, the Commission has “crossed the line” between “safety regulation and overreach.” She continued:
The CPSC action to remove Buckyballs from the market raises serious questions about how the government acts to protect consumers. In its zeal to address a problem that it believes to be a serious safety concern, the CPSC seems to have adopted the philosophy that any action, no matter how heavy-handed and outside established practice, is warranted if it achieves the desired result.
She noted in the op-ed that Buckyballs founder Craig Zucker recently filed a declaratory judgment lawsuit against the CPSC in the U.S. District Court for the District of Maryland. Ms. Nord wrote that “I hope he (Zucker) wins his lawsuit.”
So do we.
Featured Expert Column
Andrea Agathoklis Murino, Wilson Sonsini Goodrich & Rosati
Certain transfers of exclusive patent licenses in the pharmaceutical sector will face new antitrust scrutiny from the Federal Trade Commission (“FTC”).* In a change to long-standing policy, the FTC announced that the transfer of a license providing an exclusive licensee with “all commercially significant rights” over a patent within a therapeutic area will be reportable under the HSR Act.
Under the old scheme, only the transfer of licenses giving the licensee a right to make, use, and sell the product were subject to the provisions of the HSR Act. This meant that in cases where a licensor retained the right to manufacture the patented pharmaceutical product, even if the licensee had the exclusive right to use and sell the patented pharmaceutical product, the transfer was deemed non-exclusive and thus non-reportable. The shift means that parties will need to prepare the HSR Act filing itself, observe the mandatory waiting period before closing (typically 30 days), and, of course, be prepared to respond to any competitive concerns raised by the FTC. Continue reading
Cross-posted at WLF’s Forbes.com contributor page
The U.S. Consumer Product Safety Commission held a public hearing Tuesday on its proposed safety standard for magnet sets. Although the proposed standard originally issued last year, the agency failed to do the required oral hearing at that time and is now making up for that oversight. In the interim, however, the agency filed a lawsuit against a manufacturer of magnet sets and its CEO, a lawsuit that is still pending in front of an Administrative Law Judge. The Commissioners will sit in judgment as an appellate body if any party appeals the ALJ’s ruling in that case. If any Commissioner thinks it inappropriate to nonetheless proceed with a ban on the product in question, it went unremarked at the hearing. Does anyone believe that the Commission could impartially oversee such an appeal having already banned the product about which the ALJ is ruling?
The ostensible purpose of a public hearing is to ensure that all views are heard, yet not a single opponent of the regulations appeared to testify. Not one. Given that the written comments submitted to the agency last year included many comments opposing the agency’s action, it seems unlikely that no one wanted to testify in person against the agency’s proposal. The agency apparently did a much better job of inviting supporters of the regulation from the medical and advocacy communities than from, say, the companies whose employees will lose their jobs when this product ban goes into effect. One founder of a company directly affected by the agency’s action complained that he did not receive any notice of the event prior to the cutoff for submitting testimony. One need not go very far out on a limb to speculate that the doctors who testified in front of the CPSC did not learn about the hearing from reading the Federal Register notice themselves. Shame on the biased CPSC for not doing more to seek out the views from the affected industry at this hearing. The agency did at least leave the hearing record open until Oct. 29, in case any latecomers want to file additional written comments. Continue reading
This morning, Washington Legal Foundation is hosting a Media Briefing program at 9:30, FDA Goes Astray On Device Oversight: Proposed Guidance On 510(K) Review, Adverse Events Reporting, And Recalls.
Our speakers are:
For those who cannot attend the program in person at WLF’s headquarters, below are the materials constituting press packet:
Cross-posted at Forbes.com’s WLF contributor page
Washington Legal Foundation, along with other organizations, business, and individuals with an interest in the Supreme Court and free enterprise cases before it, watched with great anticipation this morning as the justices issued their first new list of certiorari grants since the Court adjourned last June (the so-called Long Conference). We came away from the big cert grant morning, as likely did many other interested parties, wanting more.
The orders list is here. The grants include a tax case, United States v. Quality Stores addressing whether severance payments made to employees whose employment was involuntarily terminated are taxable. Two other grants relate to the standard of review the U.S. Court of Appeals for the Federal Circuit uses when assessing a district court’s determination that a case is “exceptional” for purposes of imposing attorneys’ fees and other sanctions. Those cases are Octane Fitness v. Icon Health and Fitness and Highmark Inc. v. Allcare Management Systems Inc.
The final cert grant impacting free enterprise is Petrella v. MGM, which involves the movie Raging Bull and the defense of laches against claims of copyright infringement. Marcia Coyle at National Law Journal discussed the interesting facts of the case in a September 16 story.
The bigger story from the big cert grant morning was which petitions the Court did not act on. WLF filed amicus briefs in support of review in a number of the cases, which we’ll indicate below (all noted on SCOTUSblog’s “Petitions we Are Watching” page).
Failure to act on these and other petitions does not mean that the Court cannot reconsider them in a future “conference,” and it does not mean that they have been denied. The Court will be issuing an order list on First Monday, October 7, but that order traditionally has only contained cert denials.