In the Ninth Circuit, Not All Litigants Are Created Equal

9thCirThe U.S. Court of Appeals for the Ninth Circuit this week denied Uber Technologies’s petition for Rule 23(f) interlocutory review of an order granting class certification in a major challenge to the manner in which Uber operates its ride-sharing business. The four named plaintiffs assert that every Uber driver should be classified as an employee, not (as is currently the case) an independent contractor. The denial of review is not unusual when viewed in isolation. Although Rule 23(f) grants federal appeals courts discretionary authority to hear interlocutory appeals from class-certification orders, appeals courts permit such appeals in only a fraction of all cases, and the default rule continues to be that litigants must await issuance of a final judgment before appealing from pre-judgment rulings to which they object. Continue reading

WLF Overcriminalization Timeline: Mens Rea, Public Welfare Offenses, and Responsible Corporate Officer Doctrine

matt_kaiser300Guest Commentary

Matthew G. Kaiser, Partner, Kaiser, LeGrand & Dillon PLLC

Editor’s Note: This is the second in a series of six guest commentary posts that will address the six distinct topic areas covered in Washington Legal Foundation’s recently released Timeline: Federal Erosion of Business Civil Liberties. To read the other posts in this series, click here.

To commit a crime, normally you have to have met two requirements. First, you have to have done something bad. Second, you have to have done the bad thing with a bad intent.

Take mortgage fraud. If you write on your mortgage application that you earn $1,000,000 a year, but you only earn $100,000, you’ve committed mortgage fraud if that’s what you intended to submit and you knew it was false. If, though, you’re using an online application and the “0” key on your keyboard was stuck so an extra zero appeared, you haven’t committed mortgage fraud, you’ve just made a mistake; you have no bad intent. Continue reading

Eighth Circuit Properly Rejects “Fear of Nuisance” Suit Arising from Pipeline Leak

faulkFeatured Expert Column − Complex Serial and Mass Tort Litigation

By Richard O. Faulk, Hollingsworth LLP

Can a public-nuisance lawsuit be based solely on property owners’ fear that their property values will be diminished by proximity to an adjacent contaminated tract? The U.S. Court of Appeals for the Eighth Circuit recently—and correctly—rejected a creative, but flawed, attempt by landowners to recover damages for such claims in Smith v. ConocoPhillips Pipeline Co.

The use of public nuisance litigation to redress environmental claims has proven extraordinarily controversial—and generally unsuccessful. Perhaps the most famous failure occurred when plaintiffs employed nuisance theories to redress environmental contamination at Love Canal, in which case over a decade of litigation failed to produce a solution.1 Thereafter, appellate courts generally rejected the tort’s use for a wide variety of claims ranging from lead paint contamination to climate change.2 Continue reading

Circuit Split Clouds Definition of “Whistleblower” under Dodd-Frank Act, Complicating Corporate Compliance

829-Brower_GregjohnsonGuest Commentary

by Greg Brower and Brett W. Johnson, Snell & Wilmer LLP*

A recent decision by the U.S. Court of Appeals for the Second Circuit further complicated the issue of when an employee can be considered a whistleblower under the Dodd-Frank Act. In Berman v. Neo@Ogilvy, the Second Circuit reversed a district court decision that the plaintiff was not a whistleblower, concluding that the governing definition of “whistleblower” was not the one found in the language of Dodd-Frank, but was the broader one found in a subsequently adopted SEC rule. This interpretation runs counter to a 2013 decision from the Fifth Circuit, Asadi v. G.E. Energy, LLC, and sets up a circuit split that the Supreme Court may be asked to resolve. Continue reading

‘Chevron’ Deference Conflicts with the Administrative Procedure Act

faulkFeatured Expert Column − Complex Serial and Mass Tort Litigation

Richard O. Faulk, Hollingsworth LLP*


“It is emphatically the province and duty of the Judicial Department to say what the law is.”
Marbury v. Madison, U.S. 137, 177-78 (1803) (per Marshall, C.J.)

Judicial deference to agency interpretations of statutes and regulations is nothing new—but a trend toward more critical review is emerging. In the October 2014 term of the United States Supreme Court alone, three serious concerns about deferential review were recognized:

  • First, in King v. Burwell, the Court refused to defer to the Internal Revenue Service’s interpretations of the Affordable Care Act—because Congress did not expressly delegate interpretive power regarding this question of “deep economic and political significance” to the IRS, and because the IRS has no special competence in health care issues.
  • Second, in Perez v. Mortgage Bankers Ass’n, members of the Court expressed grave concerns about deference to an agency’s interpretation of vague and ambiguous regulations—especially when the agency itself was responsible for the ambiguities.
  • Finally, Justice Thomas wrote a compelling concurring opinion in Michigan v. EPA, in which he stressed that the Court’s continued allegiance to “Chevron deference”—under which courts defer to agencies’ interpretations of the statutes they are charged to administer—raises “serious” constitutional questions under the “separation of powers” doctrine.

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