U.S. Supreme Court Agrees to Review Endangered Species Act Case

st_tammany_navCan the U.S. government designate a private landowner’s property as “critical habitat” for a threatened or endangered species if the species does not currently inhabit the land and could not do so unless the property owner agrees to modifications of his land? The U.S. Supreme Court agreed this morning to address those questions by granting a petition for certiorari in Weyerhaeuser Co. v. U.S. Fish and Wildlife Services.

Washington Legal Foundation filed an amicus brief in support of the Petitioner, who was represented by past WLF publication author and program speaker Timothy Bishop of Mayer Brown LLP.

WLF has also published a number of commentaries on Weyerhaeuser on this blog, which are listed below.

The Supreme Court’s “American Express” Antitrust Case: What’s at Stake

swisherFeatured Expert Column: Antitrust & Competition Policy — U.S. Department of Justice

By Anthony W. Swisher, a Partner in the Washington, DC office of Squire Patton Boggs (US) LLP.

With the New Year comes the opportunity to consider the cases to the U.S. Supreme Court will hear in the second half of its October Term 2017. As has become routine in the last several years, the Court has an antitrust case on its docket. In Ohio v. American Express Co., the justices will have the opportunity to consider the proper application of the rule of reason to vertical agreements between credit card companies and merchants. The case presents important substantive issues, but also provides a chance to see whether the Court’s recent trends in antitrust enforcement will continue. The justices will hear arguments in the case on February 26. Continue reading “The Supreme Court’s “American Express” Antitrust Case: What’s at Stake”

Restate or Rewrite?: Stark Choice Faces ALI Leaders on Liability Insurance Law Project

rockThe debate over the American Law Institute’s (ALI) still ongoing Restatement of the Law: Liability Insurance (RLLI) project the mythical struggles of Sisyphus. Since 2015, when ALI—in unprecedented fashion—shifted the venture from an aspirational “Principles Project” to a Restatement, stakeholders and a growing number of third parties concerned with the project’s direction have been pushing the proverbial rock up the hill.

Throughout the drafting process, concerns have been consistently raised that multiple RLLI sections either depart from settled insurance-liability principles or establish entirely new rules. Each time, the RLLI’s Reporters issued a new draft that was nearly identical to the last.

With the release of Council Draft No. 4 for discussion at a January 18, 2018 conclave of the ALI Council—a final step in the approval process before the group’s May annual meeting—the uphill resistance has resumed and intensified. What transpires over the next week could have a profound impact not only on the insurance liability system and its stakeholders, but on ALI itself. Continue reading “Restate or Rewrite?: Stark Choice Faces ALI Leaders on Liability Insurance Law Project”

Influencer Marketing Remains in FTC’s Crosshairs

06633 - Royall, M. Sean ( Dallas )Featured Expert Column: Antitrust & Competition Policy — Federal Trade Commission

By M. Sean Royall and Richard H. Cunningham, Partners with Gibson, Dunn & Crutcher LLP, and Andrew B. Blumberg, an Associate in the firm’s Dallas, TX office.  The authors would like to thank Philip Jacob Spear, who is also an Associate in Gibson Dunn’s Dallas office, for his substantial contributions to this post.

Social media “influencers” are individuals with large followings on social media platforms, including Facebook, Instagram, YouTube, Twitch, Twitter, and Snapchat, among others.   Influencers include various members of the Kardashian family, a wide array of professional athletes, and individuals whose broad following is home-grown online and on social media. Influencers may tout products or services on their social media pages or feeds in exchange for compensation, effectively turning themselves into an advertising channel. Continue reading “Influencer Marketing Remains in FTC’s Crosshairs”

Textbook Application of “Obstacle” Preemption Negates Activists’ Organic Food-Labeling Suit

formulaFood Court Follies—A WLF Legal Pulse Feature

Several of our recent commentaries (here and here) have extolled the virtues of national uniformity for the regulation of interstate commerce. Those posts focused on litigation involving federally regulated prescription drugs and devices. But state consumer-protection litigation poses an even greater threat to regulatory uniformity.

Federal preemption—the constitutional doctrine that state-law litigation targets regularly cite as a defense—has generally been an ineffective argument against consumer-protection suits, especially those alleging misleading or false labeling of food and other packaged goods. A January 3, 2018 federal trial court ruling, Organic Consumers Association v. Hain Celestial Group, Inc., is a welcome exception to that trend. It’s also notable for how clearly the court explained implied preemption and the broader principle of uniformity underlying the defense. Continue reading “Textbook Application of “Obstacle” Preemption Negates Activists’ Organic Food-Labeling Suit”

Update: Ninth Circuit Issues First Amendment Ruling on Credit-Card Surcharge Law

9thCirA post last month, Second Circuit Improperly Ducks Important First Amendment Issues, criticized the U.S. Court of Appeals for the Second Circuit’s decision to certify a question to New York’s highest court in a challenge to a state law restricting merchants’ ability to inform their customers of credit-card surcharges. WLF Chief Counsel Richard Samp argued that the court possesses all the information it needs to decide Expressions Hair Design v. Schneiderman. WLF filed an amicus brief in support of the petitioner in that case.

On January 3, the Ninth Circuit decided the same issue the Second Circuit had ducked involving an analogous law. The court found that a California law that prohibited merchants from imposing a surcharge to cover credit-card fees, but allowed them to provide discounts to cash customers, violated the First Amendment rights of five California businesses. Italian Colors Rest. v. Becerra. Continue reading “Update: Ninth Circuit Issues First Amendment Ruling on Credit-Card Surcharge Law”

Same-Old Drug Advertising Ban Proposal Would Fail for the Same-Old Reasons

first-amendmentAs the country debates the best path forward for the nation’s healthcare system, interest groups continue to advance different ideas to address their pet causes.  One popular cause is the reduction of drug prices.  Though that debate often occurs based on narrow perceptions of the dollar figures at issue, ideas for price reduction are worthy of consideration, especially given the increasing budgetary percentage that government and personal spending healthcare now occupies.  One drug-price-reduction idea advanced toward the end of last year, however, should be vigorously opposed. Continue reading “Same-Old Drug Advertising Ban Proposal Would Fail for the Same-Old Reasons”