Litigating away from “Home”: General Personal Jurisdiction One Year after the Supreme Court’s Daimler AG v. Bauman Decision
Mr. Beck utilized a PowerPoint slide presentation. The archive of the program, which includes a viewable version of the slides, is available at WLF’s website here. If you would prefer to watch the video above, a PDF of the slides are available here.
Related materials on Daimler AG v. Bauman and its application in civil litigation:
The meaning of “chutzpah” is often illustrated by pointing to the man who kills his parents and then throws himself on the mercy of the court because he is an orphan. The recent actions of a group of plaintiffs’ lawyers involved in a multi-billion dollar case before the Illinois Supreme Court exhibit a similar kind of chutzpah. They have labored for more than a decade to have Justice Lloyd Karmeier removed from the case, most recently by bankrolling (to the tune of more than $2 million) a “no” campaign for Karmeier’s November 2014 retention election. That effort narrowly failed: 61% of the south Illinois electorate voted to retain Karmeier for another 10-year term.
So last month the attorneys filed a motion to have Karmeier removed from the case. Their reason? Karmeier is likely biased against them because of their persistent efforts to get rid of him, and the integrity of the courts requires the removal of judges whose impartiality might reasonably be questioned. The motion lacks merit and should be denied. Motions of this sort are doing far more to undermine public confidence in the integrity of the judicial system than could a judge’s decision to hear a case despite self-interested allegations of partiality. As Justice Antonin Scalia has explained, such motions feed the perception that litigation is just a game, that the party with the most resourceful lawyer can play it to win, and that our seemingly interminable legal proceedings are wonderfully self-perpetuating but incapable of delivering real-world justice. Continue reading
Over the past several years, WLF has advocated that trial court judges should deny certification of consumer class actions if the lead plaintiffs cannot offer an administratively feasible method for the court to determine who is a “member” of the class. This “ascertainability” issue has arisen in many food-labeling class actions in the Food Court (a/k/a the U.S. District Court for the Northern District of California) and in other federal districts. With the December, 2014 appeal of Judge Charles Breyer’s denial of certification in Jones v. ConAgra, the battle over ascertainability has finally moved from the Food Court to the U.S. Court of Appeals for the Ninth Circuit.
This won’t be the first time that the ascertainability issue has been before the Ninth Circuit. The court has either ducked the issue in the past or issued unpublished rulings that barely reference it. And because Judge Breyer found numerous problems with Mr. Jones’s proposed class under Federal Rule of Civil Procedure 23, the appeals court could affirm the decision here without addressing ascertainability too. A marked split exists within the federal districts that make up the Ninth Circuit, with opinions ranging from Judge Breyer’s cautious acceptance of ascertainability to other trial judges’ melodramatic rejection of it as a class-action killer. An amicus brief in support of Jones’s Ninth Circuit appeal by Public Citizen and Center for Science in the Public Interest attempts to amplify this “sky is falling” rationale for ignoring ascertainability. Continue reading
Featured Expert Column – Environmental Law and Policy
by Samuel B. Boxerman, Sidley Austin LLP, with Katharine Newman, Sidley Austin LLP
Last week, the Ohio Supreme Court weighed in on the battle being waged between state and local governments over oil and gas development, ruling that Ohio cities and municipalities may not use home rule to regulate oil and gas operations if local regulations directly conflict with Ohio state law. The decision represents a significant victory for the oil and gas industry and is likely to serve as important precedent in disputes raising similar issues in other states.
In State ex rel. Morrison v. Beck Energy Corp., the court ruled 4-3 that Munroe Falls’ ordinances, enacted between 1980 and 1995, were in direct conflict with Ohio’s 2004 law, R.C. 1509, which provides statewide, uniform regulation of oil and gas operations. R.C. 1509 preserves local regulation over public spaces and permit authority for heavy traffic, but expressly prohibits a local government from using its powers to impede or obstruct oil and gas activity. Continue reading
Last fall, WLF Legal Pulse highlighted some copyright and patent owners’ use of self-help initiatives to bolster their intellectual property rights. The copyright owners discussed in that post—chiefly movie and entertainment studios—face an especially daunting challenge due to the digital nature and distribution of the content they produce. In addition to individual acts of copyright infringement, entertainment providers must confront sophisticated and elusive websites devoted largely to facilitating content piracy. As we discussed in another fall 2014 blog commentary, these “cyberlockers” enjoy an average profit ratio of over 64% thanks in part to legitimate businesses’ advertisements and the payment processing of services like MasterCard and Visa.
For the past several years, advertisers have worked to address ad-support for online piracy. Those efforts have now crystallized into a formal voluntary program announced last week by the Trustworthy Accountability Group (TAG). TAG, which consists of major advertising-related trade associations, launched the Brand Integrity Program Against Piracy. Under the program, TAG will work with independent third parties, such as Ernst & Young, to certify companies that assist advertisers and ad agencies to avoid ad placement on cyberlockers and other undesirable websites. If these companies meet certain effectiveness criteria, TAG will validate them as “Digital Advertising Assurance Providers” (DAAPs). The Business Integrity Program also allows large ad networks and publishers that have already implemented internal controls to self-verify as DAAPs.
TAG developed the voluntary DAAPs certification program without the involvement or encouragement of government regulators. As market actors whose legitimacy and credibility are crucial to their continued success, advertisers and ad agencies understood that ads for multi-billion-dollar brands could not continue to support unlawful activity. Much of that brand value exists thanks in no small part to intellectual property protection. No doubt entertainment content owners underscored that reality when encouraging those trademark owners and their advertisers to take action against content piracy. All those involved in the Brand Integrity Program Against Piracy have a shared stake in its success, and the voluntary nature of the program allows them to quickly adapt their efforts. Such incentives and flexibility do not exist in a one-size-fits-all government regulatory program.
TAG and the other architects of this certification initiative are to be applauded for their announcement. We will monitor further developments with great interest. We also hope that the voluntary, concerted effort sends a strong message to the payment processors whose services continue to assist copyright infringement. The next important move is theirs.
Also published by Forbes.com at WLF’s contributor site
Featured Expert Column – Antitrust/Federal Trade Commission
Andrea Agathoklis Murino, Wilson Sonsini Goodrich & Rosati*
On February 10, the United States Court of Appeals for the Ninth Circuit affirmed a lower court ruling blocking the merger of St. Luke’s Health Systems, Ltd. (St. Luke’s) and Saltzer Medical Group (Saltzer), and handed the Federal Trade Commission (FTC) yet another victory in its efforts to halt consolidation in the healthcare sector. This opinion is instructive both because of what it reveals on the macro-level about merger review today, and for what it may portend in future healthcare consolidation cases. Continue reading
The House Energy and Commerce Committee released a 400-page “discussion draft” of its proposed “21st Century Cures Act” late last month. The bill includes a broad range of reforms governing the regulation of drugs and medical devices, most of which have been warmly received by broad segments of those industries. The bill is particularly welcome to supporters of commercial speech rights; it includes several provisions designed to ensure that government regulators do not prevent manufacturers from speaking truthfully about their medical products.
One particular area of concern has been Food and Drug Administration (FDA) restrictions on manufacturer use of social media. Subtitle I of Title I of the bill would overturn those restrictions. One characteristic of social media is that it places a premium on brevity. For example, Twitter limits messages to 140 characters or less. In a Draft Guidance issued on June 18, 2014, FDA concluded that drug/device manufacturers should rarely, if ever, attempt to use social media platforms with character space limitations because those limitations deprives manufacturers of sufficient space to include all the risk and benefit information that the agency asserts is a necessary part of any such communications. It is not sufficient, FDA concluded, for a Twitter message to include the name of the drug and its intended uses, and then provide a hyperlink where detailed risk and benefit information is available. But as Washington Legal Foundation (WLF) pointed out in comments urging withdrawal of the Draft Guidance, a de facto prohibition on use of social media platforms raises serious First Amendment concerns. The First Amendment does not allow the government to prohibit an entire method of communication simply because other methods of communications are available to the speaker, at least not where the government’s goals can be achieved through more narrowly tailored means. Continue reading