Federal Judge, Referencing FDA Order on Trans Fat, Permits State-Law Class Action to Proceed

food-courtThe Food Court strikes again.

On July 15, U.S. District Court for the Northern District of California Judge William Alsup rejected Nissin Foods Company’s motion to dismiss a claim alleging that Nissin’s use of trans fat in its instant noodles was an unfair trade practice under California law. The decision comes just a month after the federal Food and Drug Administration (FDA) issued a Declaratory Order removing the generally recognized as safe (GRAS) designation from partially hydrogenated oils (PHOs), the main source of trans fat in Americans’ diets. Judge Alsup’s opinion is the first we know of to reference FDA’s order. Continue reading

A Case with Teeth?: Federal Circuit to Review International Trade Commission’s Jurisdiction over Digital “Articles”

ITCNext Tuesday, August 11, the U.S. Court of Appeals for the Federal Circuit will hear oral argument in ClearCorrect Operating, LLC v. International Trade Commission, a case that nominally involves a cease-and-desist order the International Trade Commission (ITC) imposed on a data file that contained a digital model of crooked teeth. As numerous amici in the case assert, however, the court’s ultimate decision could have significance well beyond digital teeth images; it could establish standards for the Commission’s jurisdiction over international trade in digitalized goods.

The case followed a routine path from ITC to the Federal Circuit. Align Technology complained to ITC that ClearCorrect was importing goods into the United States that infringed Align’s patents. Both companies create patient-specific “aligners” to correct crooked teeth. ClearCorrect’s facility in Texas would download data of a model created in Pakistan from a foreign-based server, and then use that data to create the aligner. Align alleged that the data “imported” from the foreign server constituted an “article,” under 19 U.S.C. § 1337, over which ITC had jurisdiction. Continue reading

The Supreme Court’s NOT Top 10: Cases the Justices Wrongly Rejected Last Term

supreme courtThe usual spate of articles by Supreme Court scribes pronouncing the Roberts Court staunchly pro-business were noticeably sparser as the latest term ended. When journalists are reduced to using the Obamacare and same-sex marriage cases as their main exhibits to prove the Supreme Court’s supposed pro-business tilt, you know it wasn’t a banner year for business.

Of course there were a few notable losses (King v. Burwell itself, Oneok, and Texas Dept. of Housing come to mind). But the fact that free enterprise did not fare well this term had comparatively little to do with the decisions the Supreme Court issued. Rather, business civil liberties suffered more overall from the various state supreme court and federal courts of appeals cases that the high court left on the cutting-room floor.

The tally that follows comprises more than just the cases of a disappointed cert seeker. WLF did not participate in more than half of the examples discussed below. However, the cert petitions mentioned here are all cases where free enterprise, individual and business civil liberties, or rule of law interests were at stake. From the free-market vantage point, it once again appears that the Court did not make enough room on its docket for cases implicating significant liberty interests. By choosing a lighter load, the Court allows legal uncertainty to linger, lower-court disobedience to fester, adventuresome new legal theories to propagate, and injustices implicating millions, if not billions, of dollars to prevail.       Continue reading

Ninth Circuit Decision Allowing Appeal of Right from Order Denying Class Certification Is Ripe for Supreme Court Review

9thCirRule 23(f) of the Federal Rules of Civil Procedure gives appeals courts unfettered discretion in deciding whether to permit an interlocutory appeal from a class certification decision. Most circuits have exercised that discretion sparingly. But a U.S. Court of Appeals for the Ninth Circuit decision issued last week affirmed that circuit’s unique rule: plaintiffs (but not defendants) are entitled to take an immediate appeal from an adverse class certification ruling, even when an appeals court panel has previously denied discretionary appeal under Rule 23(f). All plaintiffs need do is stipulate to dismissal of the complaint with prejudice, and then seek review of the order denying certification in connection with an appeal from the final judgment of dismissal. Never mind that a plaintiff who stipulates to dismissal of his lawsuit might reasonably be deemed to have abandoned his claims. Continue reading

Applying High Court Jurisdiction Rulings, Federal Judge Shuts Out Suit Against Foreign Soccer Federation

headerGuest Commentary

By Ashley Snell, a 2015 Judge K.K. Legett Fellow at the Washington Legal Foundation and a student at Texas Tech School of Law.

After finding some success in its concussion-related class actions against professional and amateur football associations, noted plaintiffs’ firm Hagens Berman has taken aim at the world’s most popular sport—soccer. The firm has sued a number of soccer organizations, including the much-maligned Federation Internationale de Football Association (FIFA), for failing to provide proper concussion management for players. The Zurich, Switzerland-based federation, obviously averse to playing defense on (or rather, in) the plaintiffs’ home court (U.S. District Court for the Northern District of California), moved to dismiss. The result in Mehr v. Federation Internationale de Football Association exhibits the far-reaching impact of the U.S. Supreme Court’s game-changing general-jurisdiction decisions.

In its 2014 Daimler AG v. Bauman decision, the Court offered defendants highly specific guidance on defeating general jurisdiction. Several past WLF Legal Pulse commentaries have addressed Bauman (here and here). In a nutshell, Argentinian plaintiffs sued a German company, over events that took place in Argentina, in a California federal court. The Court’s opinion limited general jurisdiction over corporations to its principal place of business, its state of incorporation, and “an exceptional case” that renders the defendant at home in that state. Continue reading

Ninth Circuit Adds to Landowners’ Woes with Another Endangered Species Act Litigation Loss

sturgeonGuest Commentary

By Rachael Stein, a summer law clerk at Washington Legal Foundation who is entering her third year at the University of Georgia School of Law this fall.

The U.S. Court of Appeals for the Ninth Circuit recently decided that the National Marine Fisheries Service (NMFS) need not perform a thorough balancing of the costs and benefits of an Endangered Species Act (ESA) critical habitat designation, and its decision not to exclude certain areas is judicially unreviewable. The ruling directly impacts over 12,000 square miles of waters, shorelines, and land areas of California, Oregon, and Washington. Its broader impact, however, will be much greater. NMFS and other agencies implementing the ESA, as well as the activists that sue under the law, will feel emboldened to take an even more aggressive approach, to the detriment of property owners, builders, and the entire development industry. Continue reading

Update: New Jury Again Exonerates KC Royals’ Mascot in Hot-Dog Incident

Not a Tortfeasor

Not a Tortfeasor

Almost exactly a year ago in the WLF Legal Pulse,  WLF general counsel Mark Chenoweth (a Kansas native and Royals fan) called foul on the Missouri Supreme Court for ordering a new trial in the case of a fan that alleged a hot dog, tossed by the Kansas City Royals’ mascot Sluggerrr (pictured left), caused an eye injury.

We recently learned that on June 17, a Jackson County jury, after a wasteful second trial, once again found the Royals not responsible for the fan’s injuries. In addition, it found the fan was not responsible for the injury either. In the original trial, the jury found him 100% responsible for his injuries. The second jury reached the correct decision without the benefit of the “Baseball Rule,” which, as pointed out in last year’s commentary, the Missouri high court inexplicably ruled inapplicable.

The plaintiff’s lawyer told the Kansas City Star that he “hoped the trial ‘sent a message’ to Major League Baseball.” The nature of such a message is unclear, however, especially given the fact that the fan lost his suit and the team won even without the protection of the Baseball Rule.

Unfortunately, the result in Coomer v. Kansas City Royals Baseball Corp. won’t put an end to plaintiffs’ lawyers’ persistent efforts to shift responsibility for ballpark injuries from inattentive fans to deep-pocketed sports franchises. For instance, a Seattle plaintiffs’ firm that specializes in bet-the-company lawsuits has filed a class action in the Northern District of California against Major League Baseball alleging common law negligence and California Unfair Competition Act violations for its failure to provide a safe fan experience. The suit amounts to a frontal assault on the Baseball Rule.

One of the arguments the class makes in support of its negligence claim: baseball teams’ allegedly distracting efforts to entertain fans with activities such as food tosses.