EPA Shifts its Legally Suspect “Environmental Justice” Agenda into Higher Gear

EPA-LogoIn one of our first WLF Legal Pulse posts five years ago, we wrote about efforts at the Environmental Protection Agency (EPA) to revitalize “environmental justice” (EJ), which had essentially laid dormant since the Clinton Administration. The EJ movement’s influence has gradually spread, with EPA citing “EJ concerns” among its reasons for opposing the Keystone XL pipeline, and activists utilizing EJ to successfully oppose express toll lanes in Arlington, Virginia and agitate for severe development limits in the Los Angeles area.

Several recent developments at EPA aim to inject the environmental justice movement even further into federal regulatory policy-making. Continue reading

Texas Uses Preemption Power to Shut Down Local Fracking Bans, Oklahoma Quickly Follows

Guest Commentary

by Sara Thornton, a 2015 Judge K.K. Legett Fellow at the Washington Legal Foundation and a student at Texas Tech School of Law.

The state legislatures in Texas and Oklahoma recently enacted bills that expressly preempt any local ordinance that prohibits hydraulic fracturing, also called “fracing” or “fracking.” Texas Governor Greg Abbott signed Texas’s HB 40—intended as a direct response to the fracking ban in Denton, Texas—on May 18, 2015, and Oklahoma Governor Mary Fallin signed Oklahoma’s SB 809 on May 29, 2015.

Barnett Shale

Barnett Shale

Although Denton’s ban received national media coverage—likely because of its location on the Barnett Shale—the city of Denton was not the first local government to attempt to extend its police power by imposing an outright ban on energy extraction. Localities across the country, in over 470 towns, cities, and counties—from Hawaii to New Mexico to West Virginia to New York—have attempted to skirt state authority by implementing local regulations that ban fracking, despite their lack of expertise in regulating the industry. Continue reading

Sixth Circuit Applies Sanctions Appropriately in Frivolous FCA Case

6th CircuitGuest Commentary

by Spencer Salmon, a 2015 Judge K.K. Legett Fellow at the Washington Legal Foundation and a student at Texas Tech School of Law.

On May 1, 2015, the U.S. Court of Appeals for the Sixth Circuit affirmed sanctions imposed by a lower court in a suit filed under the False Claims Act (FCA). The decision, United States ex rel. Jacobs v. Lambda Res., Inc., is an encouraging development given the ease with which the FCA can be abused and the federal judiciary’s general aversion to punishing frivolous plaintiffs and their lawyers. Continue reading

Ninth Circuit Limits CAFA’s “Single Local Event” Exception and Broadens Removal of Mass Actions

Cruz-Alvarez_FFeatured Expert Contributor – Civil Justice/Class Actions

Frank Cruz-Alvarez, Shook, Hardy & Bacon, L.L.P. (co-authored with Rachel A. Canfield, an associate with the firm)

On April 27, 2015, the U.S. Court of Appeals for the Ninth Circuit issued a 2-1 decision in Allen v. Boeing, reaffirming the court’s prior interpretation of the Class Action Fairness Act of 2005’s (CAFA’s) “single local event” exception, which it previously reviewed in Nevada v. Bank of America Corp.

CAFA expands federal jurisdiction over certain mass actions that fall within its purview. CAFA defines such actions as any civil action in which “monetary relief claims of 100 or more persons are proposed to be tried jointly on the ground that the plaintiff’s claims involve common questions of law or fact.”1

CAFA, however, enumerates a number of exceptions which exclude an action from enjoying CAFA mass action jurisdiction and require remand to state court. Pursuant to the single local event exception, civil actions in which “all of the claims in the action arise from an event or occurrence in the State in which the action was filed, and that allegedly result in injuries in that State or States contiguous to that State” are excluded from CAFA’s mass action jurisdiction.2 In Allen, the Ninth Circuit was called upon to interpret the breadth of this exception. Continue reading

Law Professor’s Attack on WLF’s “Legislative Grace Canon” Argument in “King v. Burwell” Brief Sails Wide of the Mark

Not a "canon"

Not a “canon”

University of Iowa College of Law Professor Andy Grewal blogged earlier this year about WLF’s amicus curiae brief in King v. Burwell at the Yale Journal on Regulation’s Notice & Comment Blog. While we’ll refrain from comment on his rather pedantic advice as to what material is best included in a brief, we did want to set the record straight about the crux of WLF’s argument, especially given the decision’s imminent release before the Supreme Court term ends later this month.

In a nutshell, WLF’s brief asks the U.S. Supreme Court to reverse an appeals court ruling that, if upheld, would allow IRS to appropriate billions of dollars a year in tax credits without authorization from Congress. IRS argued that it was entitled to Chevron deference for the agency’s interpretation of § 1321 of the Affordable Care Act (ACA), which authorizes subsidies for an exchange “established by the State.” Continue reading

FTC’s Actions on In-App Purchases Reflect Chilling Move Toward “Mother-May-I” Paternalism

amazonFederal regulatory agencies routinely act as table-setters for the plaintiffs’ bar. Class-action lawsuits can require targets of federal enforcement actions, even after those actions end in settlement, to defend against the same allegations in court. A federal judge’s April 3, 2015 dismissal of a class action on the ground that the company had already entered into a settlement with the Federal Trade Commission (FTC), therefore, was a commendable outcome. The underlying FTC action that inspired the suit, however—an industry-wide investigation into companies’ in-app purchase procedures—is far less welcome. The Commission’s investigation is yet another example of government’s steady drift away from respecting permissionless innovation and toward “mother-may-I” paternalism.

FTC’s In-App Purchase Inquest. FTC initiated an investigation in 2011 of various companies’ mobile-app sales practices. The Commission had received complaints from parents that their children were making “unauthorized” purchases on mobile app stores. On January 15, 2014, Apple agreed to settle with FTC over charges that its in-app purchase process constituted an unfair business practice under § 5 of the FTC Act. On September 4, 2014, Google entered into a similar settlement. Both app sellers agreed to provide customers with refunds and alter their app sales practices.

In addition to Google and Apple, FTC also accused Amazon of unfair business practices for failing to prevent “unauthorized” in-app purchases.  Amazon, however, refused to settle the charges. The Commission filed suit on July 10, 2014 in the U.S. District Court for the Western District of Washington. On December 1, 2014, Judge John C. Coughenour denied Amazon’s motion to dismiss. Continue reading

Supreme Court Holds that Belief Patent Is Invalid Is No Defense to Induced Infringement

Kaminski_Jeffri_LRFeatured Expert Contributor – Intellectual Property (Patents)

Jeffri A. Kaminski, Venable LLP

The Supreme Court declined to create a new defense this week for defendants in patent infringement cases, holding that a defendant’s belief regarding patent validity is not a defense to a claim of induced infringement under 35 U.S.C. § 271(b), as a matter of first impression in Commil USA, LLC v. Cisco Systems, Inc. This is welcome news to some patent owners who have felt the legal tide has been turning against them. However, the Court also recognized that so-called “patent trolls” exist and that frivolous patent infringement lawsuits are being brought in federal courts. The Court stressed that district courts have authority under Rule 11 and 35 U.S.C § 285 to levy sanctions and award fees to dissuade frivolous cases from being filed. With its ruling, the Court continued its trend of trying to maintain a balance between patent owners and accused infringers.

The Court began its analysis by clarifying the current state of the law. Direct infringement is a strict liability offense. The state of mind of the infringer is not relevant in determining liability for direct infringement. In contrast to direct infringement, liability for inducing infringement attaches only if the defendant knew of the patent and that “the induced acts constitute patent in­fringement.” Global-Tech Appliances, Inc. v. SEB S.A. It is not enough if the party charged with induced infringement did not know that the acts it induced would infringe. Continue reading