Featured Expert Column – Environmental Law and Policy
by Samuel B. Boxerman, Sidley Austin LLP
with Ben Tannen, Sidley Austin LLP
On January 22, 2016, the U.S. Department of Interior’s (“DOI”) Bureau of Land Management (“BLM”) issued a proposed rule governing oil and natural gas production on onshore Federal and Tribal lands. Bureau of Land Management, Pre-Publication Proposed Rule, Waste Prevention, Production Subject to Royalties, and Resource Conservation (Jan. 22, 2016) (“Proposed Rule”). Coming on the heels of U.S. EPA’s proposed regulation of emissions from certain new and modified oil and gas sources, the BLM proposal represents a further expansion of the federal government’s regulation of the oil and gas business. Continue reading
Some legal commentators heralded the U.S. Supreme Court’s 2011 decision in Sorrell v. IMS Health, Inc. as a marked expansion of First Amendment protections for commercial speech. Sorrell held that content- or speaker-based restrictions on non-misleading commercial speech regarding lawful goods or services should be subjected to “heightened” judicial scrutiny. But whether Sorrell would have any practical effect on challenges to commercial-speech restrictions was far from clear, particularly because the Court did not explain what it meant by “heightened” scrutiny and because it struck down the speech restrictions at issue under the more relaxed “intermediate scrutiny” standard that it had been applying in commercial-speech cases for more than 30 years. Continue reading
by Matthew A. Reed, Sedgwick LLP
When plaintiffs bring state tort causes of action against the manufacturers of medical devices that have passed the Food and Drug Administration’s (“FDA”) rigorous pre-market approval (“PMA”) process, they enter a realm highly regulated by the federal government, and thus face a daunting task to avoid dismissal of their claims. They must demonstrate that their state-law claims require nothing more or different of the manufacturer than what the federal Food, Drug, and Cosmetic Act (“FDCA”) already requires, or else their claims are not “parallel” and thus expressly preempted by § 360k of the Medical Device Amendments (“MDA”) to the FDCA. But they also must show that their claims are based on state law distinct from the FDCA, because claims predicated on the FDCA are impliedly preempted as private attempts to enforce federal law. Continue reading
By Jon E. Wright & Pauline M. Pelletier, Sterne, Kessler, Goldstein & Fox*
A hot topic in post-grant proceedings before the Patent Trial and Appeal Board (PTAB) is whether determinations made by the PTAB at the institution stage are reviewable on appeal by the Federal Circuit. In SightSound Techs., LLC v. Apple Inc., 2015 WL 8770164 (Fed. Cir. Dec. 15, 2015), the Federal Circuit held that it lacked jurisdiction to review the PTAB’s decision to consider issues not raised in the petition, but confirmed that it did have jurisdiction to review whether a patent was eligible for covered business method (CBM) review. The difference between these two issues, it noted, is that the petition could be “cured by a proper pleading” whereas CBM review eligibility constitutes a limit “on the Board’s authority to issue a final decision.” Continue reading
In 2015, the Federal Communications Commission (FCC) penalized numerous private companies that have allegedly blocked Wi-Fi hotspots. The problem is, FCC hasn’t bothered to promulgate any regulations that detail when such blocking is unlawful. Instead, the Commission bases its claim of authority on a 1990 statute meant to protect radio stations from malicious interference. FCC’s wielding the heavy hand of enforcement actions for Wi-Fi blocking is troubling in principle and unlawful in practice.
With no rule on point, the Commission has failed to provide businesses with fair notice. Further, FCC’s attempt to stretch the applicability of an off-point regulation could have widespread consequences if followed to its logical conclusion. As a result, the time for FCC to issue rules on Wi-Fi blocking through notice-and-comment rulemaking is now well overdue. Continue reading
Featured Expert Column – Antitrust/Federal Trade Commission
Andrea Agathoklis Murino, Goodwin Proctor LLP
On December 7, 2015, the Federal Trade Commission voted 4-0 to file suit against Staples Inc.’s acquisition of Office Depot, Inc. (“OD”), finding that it would combine the number one and number two market participants and therefore lead to an anticompetitive reduction in nationwide competition in the market for consumable office supplies sold to large business customers. This vote surprised many observers as it came just two years after the FTC cleared Office Depot’s acquisition of Office Max (“OM”), which combined the then number two and number three participants.
To this observer, the decision to block was, however, not a surprise. In looking at recent FTC enforcement actions, especially the Sysco/US Foods challenge, and in closely examining the bases on which the OD/OM transaction was cleared, several key differences emerged that are almost certainly what led to such wildly divergent enforcement outcomes. Continue reading
In a highly influential 1936 essay, “The Unanticipated Consequences of Purposive Social Action,” sociologist Robert K. Merton explained that there were five sources of unintended consequences. One is the “imperious immediacy of interest:” someone wants the intended consequences of an action so badly that they consciously ignore any unintended effects. One can find many examples of this in government regulation. In fact, the Securities and Exchange Commission (SEC) provided an ideal illustration recently with its final rule that requires each listed company to express, in a ratio, how its workforce’s median pay compares with its CEO’s compensation. Continue reading